SHERIL MIGNON LOWE v. THE CORPORATION (EXECUTOR TRUSTEE AUSTRALIA LTD. - AUSTRUST) [1993] SAWCAT 48 (9 JULY 1993)

A. 48/1993

WORKERS COMPENSATION APPEAL TRIBUNAL

Workers Rehabilitation and Compensation Act, 1986.

In the Matter of an appeal by SHERIL MIGNON LOWE against the decision of a REVIEW OFFICER dated the 23rd day of October 1992 which also concerns THE CORPORATION (EXECUTOR TRUSTEE AUSTRALIA LTD. - AUSTRUST).

(No. 174W of 1992)

TRIBUNAL: His Honour Judge F.K. Cawthorne

- Deputy President

Mr. S. Acton - Member

Mr. P. Hamam - Member

REASONS FOR DECISION

PUBLISHED THE 9TH DAY OF JULY, 1993.

Appeal - Chronic Fatigue Syndrome - Whether aggravation, acceleration or exacerbation of disability - Whether condition had arisen out of or in the course of the employment - C.F.S. relapse not causally linked to anxiety/stress reaction - Not work disability - Appeal dismissed.

Appearances:

Mr. V. Condello (of counsel) for the Appellant.

Mr. M. Calligeros (of counsel) for the Respondent.

DECISION

This is an appeal by a worker against a determination of a Review Officer made on 23 October 1992 wherein, inter alia, decisions made by the Workers Rehabilitation and Compensation Corporation (WorkCover) to cease weekly payments of income maintenance being made to the worker from 29 August 1991 and to reject a claim for compensation lodged by the worker on 3 December 1991 in respect of a 'Chronic Fatigue Syndrome' were confirmed.

Although a number of grounds of appeal were pleaded the essence of them as pressed before us on the appeal was that the decision of the Review Officer was against the evidence or the weight of evidence.

The background to the appeal is as follows.

During the early 1980's the worker suffered an illness diagnosed as Chronic Fatigue Syndrome (C.F.S.) which is also known as myalgic encephalitis (M.E.). We shall for convenience hereinafter refer to the condition as C.F.S. In brief C.F.S. is a diagnostic label for a condition which manifests itself primarily as persistent or relapsing and debilitating fatigue which leads to a gross reduction in the patient's pre-morbid activity level and may be accompanied by recurrent or persistent pain in many different muscle groups which may be made worse (as may the fatigue) by levels of activity which would have been easily tolerated in the pre-morbid state. A host of other symptoms may also be involved including poor concentration and memory. The aetiology and pathogenesis of the condition are unknown.

By 1987 the worker had recovered sufficiently to recommence work part time with the Co-operative Building Society and in late October 1989 started work with Executor Trustee Australia Limited (ETA).

It was the worker's evidence to the Review Officer that by the afternoon of the second day of her job with ETA she began to again experience symptoms of C.F.S. but we will say more about that later.

In August 1990 the worker injured her knee as a result of a fall at work which caused her to cease work. She made a claim for compensation in respect of the knee disability in October 1990 (the first claim). This claim was ultimately accepted by WorkCover and weekly payments in respect of that disability commenced in about December of that year. Between the end of October 1990 and March 1991 the worker continued to submit medical certificates to WorkCover but they certified incapacity for work by reason of an anxiety-depressive state rather than the knee injury.

In December 1991 the worker made a second claim for compensation in which she alleged she was suffering from an 'anxiety state' from injury to her right knee; 'anxiety state from employment conflict; aggravation of M.E.; allergic asthma' (the second claim). This claim was made some months after a notice of 29 August 1991 from WorkCover which advised that the Corporation was satisfied that she had ceased to be incapacitated for work and that pursuant to s.36 of the Act it proposed to discontinue weekly payments of compensation to her (the August notice). This notice was the subject of an application for review (the first review application). By notice of 8 May 1992 WorkCover advised the worker that the second claim had been rejected on the basis that her claimed C.F.S. 'did not arise in the course of employment and employment did not contribute to the disability'. This resulted in a second application for review by the worker.

On the hearing before the Review Officer the worker did not dispute that she had ceased to be incapacitated for work by reason of her knee disability. The essence of her case was that she continued to be totally incapacitated for work by reason of an aggravation, acceleration, deterioration or recurrence of her C.F.S. condition which had arisen out of or in the course of her employment with ETA and to which her employment with ETA had contributed.

In the course of her reasons for decision the Review Officer canvassed the evidence of the worker before her as follows:-

'In her sworn evidence, the worker described the approaches made to her to work for ETA, and said she clearly understood from her interviews that she would be paid a salary package in excess of that which she was earning at the Co-Op and that her role would eventually lead to a management position. She said she was told that she would be earning in excess of $50,000 per annum at the end of six months with the company. She said that by the end of the second day of her new job, she began to experience a severe flu-like illness, characterised by sore eyes and throat, runny nose, cough, and dizziness. She said that between October 1989, and January 1990, she suffered about nine attacks requiring time off work, and that she would spend every weekend in bed and often have the Monday or the Monday and Tuesday off before she was well enough to start work again. She said she used her flexi-time or started late on some mornings and would then work through lunch and later in the day. She attended Dr Kerry, and also contacted the Adelaide City Council to see if an investigation could be done of the office environment without jeopardising her job, to ascertain whether anything there was causing her symptoms.

She said she complained to her immediate superior in the Wills Department, Mr Cavanagh, in December 1989, and January 1990, that she was only receiving a base salary of $25,000 and had not received the computer she'd been promised to assist her in her marketing work, and said that she subsequently took up her complaint with Mr Foster and Mr Waite. These discussions continued and in approximately early February 1990, the Managing Director, Mr Guille provided her with the computer but she still did not have the necessary software for her work. At that stage there was an agreement to pay her $40,000 and this continued until June 1990, when she was to be reassessed, however this did not occur. In fact her salary was reduced to $25,000. She approached the new Managing Director, Mr O'Brien, who promised to do this assessment and by July 1990, her salary had been reinstated at $40,000. She continued to negotiate with Mr O'Brien and Mr Foster over various issues in what she described as an unsatisfactory working environment in the Wills Department such that, for example, she would be asked to devise a program or plan but would then be told not to proceed with it because the company was changing direction.

She referred to a statement made by her to a licensed inquiry agent on 7th November 1990, which is on file, and which relates to the incident in which she suffered a knee injury. She says she was not aware of the requirements for making a WorkCover claim and was concerned about the effect of making a claim on the negotiations which were occurring at that time about her future employment.

In her evidence she said that her flu-like symptoms lessened to a degree during the time off work with her knee injury, but she was still suffering fatigue, aches and pains and headaches. She said she completed a claim form for her knee after ETA sent her the form following their receipt of Dr Kerry's prescribed medical certificates. She said she completed the form and sent it with other correspondence relating to her proposal for resolving her position and salary to Mr O'Brien following a discussion directly with him by telephone. She acknowledged receiving telephone messages from Mr Foster in late October seeking her proposal but said she did not respond because she considered that she was negotiating directly with Mr O'Brien. She said that there was no change in her experience of symptoms of fatigue, headaches, muscle pain and leg pain by the end of December 1990, and she asked Dr Kerry to refer her to Dr Bowman whom she knew to have some experience with treating cfs. She continued to submit prescribed medical certificates of Dr Kerry and to seek negotiations with regard to her employment. She requested an interview with Mr Marcus-Clarke, but met instead with Mr Guille and Mr Angas, the General Manager of ETA, followed by further negotiations in early December with Mr Wilsen who had become the Managing Director after the death of Mr O'Brien, and Mr Foster. A few days later her claim was accepted and payments of income maintenance paid.

She said that during January 1991, she spent time in bed again with flu-like symptoms but discussions continued on her employment and she eventually agreed to a "last offer" of $42,000 plus a car, but she did not return to work. She continued to provide prescribed medical certificates of Dr Bowman, Dr Kerry having told her that he did not wish to get involved in a WorkCover wrangle, upon which she had stopped seeing him. She said her symptoms then were extreme fatigue, muscle pain and neck pain, and that she could still only wear flat shoes because of her knee injury as she was still having some pain in the right knee and right hip, but these would not have prevented her from performing her work. She said the symptoms varied from bad to terrible, but since then the condition has become manageable because she allows herself to "go with" the symptoms. She said she has the capacity to drive, and talk on the phone but cannot stand for long, and if she pushes herself to do more than she can her condition worsens and she becomes bedridden again, with more severe pain, headaches, weakness and muscle joint pains. Any physical activity makes her symptoms worse. She said she saw Dr Buttfield as he is also involved in treating cfs and also sees Dr Kette every month or so and has tried various treatments. She said she suffered from cfs in the period 1983-1987, her symptoms then being extreme fatigue, headaches, nausea, blurred vision and memory problems, and that no treatments were successful and she did not work for four year. After she recommenced work part-time in 1987, she was not as physically strong because she was not as fit as she had been prior to the onset of the cfs, but she had no time off work, although she suffered some discomfort at times. She said that the pressures she experienced at ETA included her concern about getting ill again, that the job as promised was not materialising, and financial difficulties, although those did not become extreme until she was not being paid at all after her sick leave ran out and before her claim for her knee injury was accepted.

Under cross-examination she said that the anxiety state she developed did not relate directly to her knee injury or the medical treatment for that but rather was due, at least in part, to her feeling of being victimised in relation to her claim for her knee injury, for example through the employer not advising her of the proper procedure for making a claim She described in more detail her symptoms on her second day with ETA, being congestion, runny nose, sore throat, dizziness, runny eyes, high temperature, blurred vision, headaches, and muscle aches and pains. She said most of these symptoms she had experienced previously with cfs. She was asked to comment on her answer to the same question recorded as Question 22 on page 18 of a questionnaire statement provided in evidence under cover of a letter from Stanley and Partners to WorkCover Review dated 29th April 1992, in which she states that the symptoms suffered on that day were "shortness of breath, irritated cough, nasal obstruction and flu-like symptoms". She said that she considered that the term "flu-like symptoms" covered most of the symptoms she described in her sworn evidence and did not agree there was any inconsistency.

She agreed that the Adelaide City Council's initial testing of the air-conditioning had been clear but said that prior to that testing a fellow had cleaned thee ducts above her officer. She said she still suffers the cfs symptoms minus the flu-like symptoms.

She said she would have appeared "professional" in her work negotiations, not showing her anxiety, but that her anxiety ceased in December 1990, when payments were made following the acceptance of her claim.'

We note that on the question of the worker's credibility the Review Officer said at p.5 of her reasons for determination in what she described as 'preliminary comments' on the question that although the worker's account of events differed in some respects from those given by other non-medical witnesses she was 'straightforward and articulate', that there was 'nothing inherently improbable in her evidence' and that 'she genuinely perceived various conversations and meetings to be as she recounted them in her evidence'.

In our view it is appropriate to highlight at this stage certain aspects of the worker's evidence to the Review Officer (which was given in September 1992) as to the onset and history of her C.F.S. symptoms. In particular it was the worker's evidence that;

. When she worked for the Co-operative Building Society she was not suffering from any symptoms of C.F.S. although she wasn't quite as physically strong as she had been because she had been inactive for some years and had spent a lot of time in bed.

. Her symptoms of a flu like illness and C.F.S. commenced in the first day or so of her employment with E.T.A. and were particularly severe in the first four months of her employment. She claimed inter alia she was spending every weekend in bed 'and on quite a number of occasions' had the ensuing Monday or Monday and Tuesday off work as a result of her symptoms.

. Despite the onset of severe C.F.S. symptoms on her second day of work with E.T.A. at that stage she was having no difficulties with her employment. Indeed her evidence was that she 'was quite severely affected by something and ill before the (employment) difficulties arose.

. After about four months her symptoms had levelled off to the point where she could cope although she was still suffering from muscle pain, leg weakness and severe headaches as well as 'flu-like symptoms of temperature and so on'.

. When she ceased work in late 1990 her flu-like symptoms lessened although she still had other significant symptoms of C.F.S.

. In the first five months of 1991 her symptoms were bad. She spoke of 'extreme fatigue, muscle pain, extreme headaches, problems with the area of my neck and my arms and a general unwellness, and I spent the majority of that time in bed, only really getting up to go for necessary appointments, ....'

. She was not suffering any symptoms of anxiety of note after December 1990.

. That at the time of Review she was not disabled by anxiety or as a result of her knee injury but solely as a result of C.F.S.

The Review Officer then commenced a discussion of the evidence of several lay witnesses which we note, but do not find necessary to canvass before directing her attention to the medical evidence led before her. Those who gave oral evidence were Dr. Bowman, psychiatrist and Drs. Buttfield, Kupa and Kette, all specialist physicians. In addition the Review Officer had before her, inter alia, reports of Dr. Kerry, general practitioner, and Dr. Burvill, psychiatrist.

Dr. Bowman first saw the worker in relation to the subject of her present claims in early December 1990 and continued to see her in the ensuing year. Prior to this he had last seen her in May 1988 in relation to C.F.S.. On that occasion he noted that her health was still impaired to a degree although she was coping well with her job and was optimistic about the future.

Dr. Bowman's diagnosis in December 1990 was that the worker was suffering from an anxiety state of mild to moderate proportions as a result of 'all the intrigues that are occurring at work'. Whilst she also complained of tiredness at that time he considered this symptom as a 'fairly minor part of the whole thing'. In Dr. Bowman's opinion it was not until about August 1991 that the worker became significantly debilitated by C.F.S. symptoms and 'she had developed some asthma and other allergic problems ...[which]... no doubt wasn't helping her either. At that stage he said that she still had an anxiety state but it was a secondary problem which on its own would not incapacitate her for work. He attributed the worker's C.F.S. relapse to her work related anxiety expressing the opinion that patients tend to relapse if placed under stress. He said the majority of patients with C.F.S. suffer from allergic problems and that the worker's diagnosed asthma may be a symptom of that illness rather than a different disorder acting as an aggravating factor. Dr. Bowman also expressed the view that the onset of C.F.S. could be explained by a viral illness but the fact that it did not resolve or improve after the worker stopped work was inconsistent with the contention that it was somehow linked with the workplace at ETA.

The thrust of the report of Dr. Kerry of 16 January 1991 in which he reviewed the worker's progress from 6 September 1990 when she first consulted him about her right knee injury was that she was very anxious and depressed because she had not been paid compensation in respect of the disability and because she believed that her claim for compensation was being investigated. He expressed the view that her anxiety depressive state would not resolve until 'all administrative matters had been straightened out'.

Other evidence from Dr. Kerry in the form of clinical notes of 11 April 1991 suggest that it was his opinion that as of that time she had recovered from C.F.S. although there was 'always a chance of relapse'. He was also of the opinion that she was fit at that time to return to selected light duties in an office setting although from a psychological point of view she may not be. He considered Dr. Bowman's opinion on this question to be relevant.

Dr. Buttfield who saw the worker in July 1991 took a history that the worker's C.F.S. relapsed at the end of January 1991 although she described intermittent difficulties before that. His evidence was that the worker spoke of difficulties with C.F.S. whilst at work which did not stop her working although it made work more difficult. He described the symptoms of C.F.S. as 'a feeling like the flu'.

It was Dr. Buttfield's evidence that subsequent tests administered by him disclosed a significant respiratory obstruction leading to a diagnosis of asthma although he could not say whether this was a result or cause of the C.F.S. He acknowledged that there was no agreement about what triggers C.F.S. but said there was a belief that the immune system was damaged and it was possible that many things including chemical factors in the environment could cause this. His essential position was that the C.F.S. was 'probably something inherent in an individual triggered off by factors unknown'. He said that if work was the precipitating factor then he would expect the symptoms to abate on removal from the work environment. He identified anaesthesia, excessive exercise and exposure to toxins as probable aggravating factors of the illness and said that it was possible that anaesthesia administered at the time of the worker's knee operation triggered a relapse of her C.F.S.

Dr. Kupa who saw the worker in April 1992 took a history from the worker of the onset of a flu-like illness with sweats, fever, aching, headaches, watery eyes and nasal congestion within a couple of days of her commencing work with ETA in 1989. The worker told Dr. Kupa that although the symptoms abated somewhat after about a week about nine episodes of similar symptoms followed over the four months and each required several days off work. Dr. Kupa described C.F.S. as a most difficult medical problem of unknown cause although she was familiar with internal infections and excessive exercise causing relapses. She was of the view that the worker was suffering from long term C.F.S. with a recent relapse beginning in late 1989 and was disabled by reason of that condition. She found it difficult however to link the condition with the worker's employment at ETA. She said that if the cause of the relapse was viral it was impossible to postulate where the virus was contracted. If, on the other hand, something in the workplace caused the condition then it should have abated when the worker ceased work. Dr Kupa thought the most likely cause of the relapse was the flu like illness but found it difficult to link that with the work environment particularly when there was no dramatic improvement in the worker's condition after she left work. She acknowledged that depression or anxiety could contribute to the worker's symptoms and the possibility that anaesthesia could be the culprit in terms of causation.

Dr. Kette's evidence was that there were a lot of anecdotal reports of such things such as physical exercise, internal disease such as viral infections, surgery, stress and even moving to a new environment as precipitants in aggravating underlying symptoms of C.F.S. and setting off a recurrence of the illness. He ascribed to the theory that the worker's C.F.S. relapse was precipitated either by an allergic response to something in the work environment causing a process of inflammation or alternatively that the allergic response resulted in stress which in turn precipitated the relapse. He did not endorse the theory that the condition was induced by anaesthetic.

Finally, we refer briefly to the evidence of Dr. Burvill whose report was before the Review Officer. He saw the worker on 24 May 1991 and took a history, inter alia, that since January or February of that year she had been suffering 'some of the symptoms of "old M.E." in the form of dizziness and difficulty in getting up in the morning'. Dr. Burvill although noting 'a certain level of depressiveness and nervous (sic) by her verbosity and tendency to give over inclusive replies to questions' did not consider that the worker was psychiatrically disturbed as a result of work injury or that she had any psychiatric condition which prevented her from resuming normal duties.

Against the background of all of the evidence the Review Officer was not persuaded that the worker's found condition of C.F.S. arose from her employment with ETA. The Review Officer identified four possible causes of the worker's C.F.S. relapse from the medical evidence viz;

(i) Anaesthesia;

(ii) Allergies in the work environment;

(iii) Asthma;

(iv) Anxiety/stress.

The Review Officer rejected any connection between the worker's C.F.S. and the anaesthetic administered to the worker whilst she underwent knee surgery in 1990. Similarly she rejected a connection between the worker's illness and her condition of asthma which as the medical evidence discloses was diagnosed quite late in the piece. In our view she has not been shown to be wrong in doing so. The medical evidence in support of a connection between the anaesthetic or the asthma and the worker's C.F.S. was limited and unconvincing. Moreover, no version of the relevant sequence of events given by the worker firmly supports such a link.

That left two possibilities as causing the worker's C.F.S. or a relapse thereof viz allergies in the work environment and the anxiety condition diagnosed inter alia by Dr. Bowman.

The Review Officer rejected the notion that an allergic reaction precipitated by the work environment was causative of the condition. In arriving at this conclusion she was clearly impressed by the evidence of Dr. Kupa whom it would seem she considered to be a 'comprehensive and intellectually honest' witness. In our respectful view despite the arguments advanced by Mr. Condello of counsel for the appellant as to why Dr. Kupa's evidence should not have been preferred it was open to the Review Officer to accept the evidence of Dr. Kupa on that point. Indeed, even on the written record of evidence and without us having the advantage the Review Officer had of seeing and hearing Dr. Kupa give evidence her evidence strikes us as cogent and impressive. In particular her suggestion that if something in the workplace environment was linked with the condition then she would expect it to abate when the worker ceased work is not only logical but also gained support from the evidence of other medical witnesses.

On another note it also seems to us that Dr. Kupa's evidence that if the cause of the relapse of the worker's condition was viral then it was impossible to postulate where the virus was contracted, is also cogent.

In our view when one adds to these considerations the fact that the Review Officer obviously had reservations about the accuracy of the history the worker gave as to the onset and development of her C.F.S. which we deal with later in these reasons then it seems to us the worker has not made out a connection between the work environment and the condition.

That leaves the possibility that the worker's anxiety state played a role in the relapse of her condition. In dealing with this contention the Review Officer paid considerable attention to the sequence of events and in particular the line of authority, canvassed in her determination, that a given sequence of events may be sufficiently impressive to warrant a presumptive inference that relevant events were causally related particularly where medical evidence admits to the possibility of a connection between the events and the injury; Adelaide Stevedoring Co. Ltd. v. Forst, 64 CLR 538. State of South Australia v. Hime W.19/1986. E.M.I. (Australia) Ltd. v. Bes (1970) 2 NSWR 238. Tubemakers of Australia Ltd. v. Fernandez, 50 ALJR 720.

Whilst, despite the evidence of the worker which suggested to the contrary, the Review Officer was satisfied that the worker did suffer from an anxiety condition which commenced some time after she suffered her knee injury (indeed such a condition was diagnosed by

Dr. Bowman in early December 1990) and continued into 1991 the Review Officer obviously had difficulty with the question whether there was a correlation between the onset of the anxiety state and the history of the onset of her C.F.S.

In dealing with that matter the Review Officer said as follows:-

'This leaves the possibility (and my preference for Dr Kupa's opinion makes it only a possibility) that anxiety/stress caused the cfs relapse. Does the sequence of events turn this possibility into a probability of a causal connection?

On the basis of the evidence of Drs Kerry and Bowman, I find that the worker did suffer a condition of anxiety which commenced some time after she suffered her knee injury (Dr Kerry says 31st October 1990, Dr Bowman was not specific but said it "escalated" by mid-1991). As to the "sequence of events", Dr Bowman did not identify cfs until late 1991 though he first saw her in December 1990; Dr Buttfield identified some cfs symptoms when he first saw the worker on 16th July 1991, and was certain by the date of his first report, 11th November 1991, that she had cfs; Dr Kupa thought the relapse started in late 1989 (based on the history she took from the worker in April 1992); similarly Dr Kette dated the onset of the relapse as October 1989, based on the history taken from the worker in September 1991; Dr Kerry noted cfs symptoms in April 1991 (but did not think they incapacitated her for work). The worker's case was that she suffered cfs symptoms in the form of flu-like symptoms from the outset of her employment, although they did not, at that stage, incapacitate her for work to any great extent, and that other cfs symptoms developed during 1990 (fatigue, aches and pains and headaches).

In my view, the evidence does not even permit a finding of a proven sequence of events, let alone an "impressive" sequence. While the worker may well have been suffering symptoms of a cfs relapse from the time when she experienced difficulties in the processing of her claim for her knee injury in October 1990 (or even, as she asserts, from the time she commenced work in late 1989), no contemporaneous diagnosis was made until April 1991 at the earliest. I do not think it is open to me to apply "common sense" and find a temporal connection between anxiety and the cfs relapse, in the absence of clear medical opinion as to the timing of the cfs relapse. I do not think the worker's evidence is a sufficient basis for such a finding. On this point, I note Mr Calligeros' point that the worker's evidence was that her anxiety ceased in December 1990, but I understood that evidence to refer to her anxiety resulting from the handling of her knee injury claim, and not necessarily to the anxiety allegedly associated with the continuing negotiations on her employment.

In summary, I am not persuaded on the balance of probabilities that the worker's cfs relapse was caused by anxiety/stress.'

It is clear from the above passage that although, as her earlier remarks indicated, the Review Officer essentially viewed the worker as a witness of credit she was not satisfied that the history given to her by the worker particularly as it went to the onset and development of the C.F.S. condition (or relapse) was sufficiently reliable to found the contention that there was a link between the condition and the worker's anxiety state.

In our respectful view it has not been demonstrated that the Review Officer was in error in that conclusion. We note for example that the thrust of the evidence of Dr. Bowman was that although the worker was suffering from some minor symptoms of C.F.S. in early 1991 when in his opinion, inter alia, she had been suffering for some time from an anxiety state it was his opinion that it was not until much later in the year that the symptoms escalated. This of course does not sit comfortably with the alleged anxiety/C.F.S. link. Moreover, the evidence of Dr. Kerry was that as at April 1991 the worker had recovered from her C.F.S. condition. This is to be contrasted with the worker's evidence canvassed earlier in these reasons that in the first five months of 1991 her symptoms were so debilitating that she spent the majority of her time in bed only getting up to attend a few necessary appointments.

In addition, whilst it seems clear that the worker did not commence to suffer from the anxiety state until late 1990, on the worker's evidence on the hearing and on the history she gave to Drs. Kupa and Kette the relapse of the condition happened soon after she commenced work with ETA in 1989 at a time when her evidence was that she was having no difficulties with her employment.

Thus we do not consider that the Review Officer's conclusion that the worker's C.F.S. relapse was not causally linked with her anxiety/stress condition can be successfully challenged.

Finally, the Review Officer concluded that the worker's anxiety state did arise out of her employment with ETA but that she was not incapacitated by reason of that state in itself by the date of WorkCover's decision of 29 August 1991 to cease weekly payments. Again in our view there was ample evidence to support a finding that the worker's anxiety state was not incapacitating by that time. In particular that was the effect of the evidence of Drs. Bowman and Burvill the specialist psychiatrists. Moreover the worker's evidence at review was that she was not disabled by injury at that time.

In the circumstances the appeal will be dismissed and the decision of the Review Officer confirmed.

This is a decision of a majority of the Tribunal Mr. Acton having resigned from the Tribunal after the appeal was heard but before this decision was delivered.

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DEPUTY PRESIDENT

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MEMBER

In accordance with the requirements of section 93 of the Workers Rehabilitation and Compensation Act 1986 we notify the parties that if a party wishes to apply to the Full Supreme Court for leave to appeal against any part of this decision which raises a question of law, such appeal must be instituted within one month after a person who is entitled to appeal receives notice of this decision.