ADMINISTRATIVE
APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
J.A. KIOSOGLOUS (Senior Member), C. RE
(Member) and I.B. GRATION (Member)
CANBERRA, 24
October 1997 (hearing), 6 November 1997 (decision)
#DATE 6:11:1997
#ADD 24:11:1997
Counsel for the Applicant: Mr R. Mildren
Solicitor for the Applicant: Snedden
Hall & Gallop
Counsel for the Respondent: Mr C.
Erskine
Solicitor for the Respondent: AGS
The Tribunal,
pursuant to s.42 of the Administrative Appeals Tribunal Act 1975,
sets aside the decisions under review and in substitution therefore determines
that the applicant's chronic fatigue syndrome is, on the balance of
probabilities, caused by the needle stick injury which occurred during the
course of his employment on 29 April 1985. The respondent is liable to pay
compensation to the applicant in respect of continuing incapacity pursuant to ss.16 and 19 of the Safety Rehabilitation and Compensation Act 1988.
The respondent is to pay the costs of
the applicant reasonably incurred in connection with these proceedings. In the
absence of agreement between the parties costs are to be taxed by a District
Registrar or Deputy District Registrar and liberty to apply is reserved to both
parties.
J.A. KIOSOGLOUS,
C. RE and I.B. GRATION
This is an application for review of
determinations of the respondent dated 15 October 1996 (T221) and 23 October
1996 (T222), which varied a determination of 10 September 1996 (T213), which
ceased compensation to the applicant in relation to chronic fatigue syndrome on
and from 16 October 1996.
The Tribunal received into evidence the
documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T223), together
with seventeen exhibits, eight tendered by the applicant (Exhibits A1-A8) and
nine by the respondent (Exhibits R1-R9). In addition, the Tribunal heard
evidence from the applicant; Mr Phillip Smyth, a friend of the applicant;
Sergeant Jeffrey Brown; Mr Peter Neeson, the applicant's brother; Professor J.
Dwyer, Immunologist; and Professor D. Wakefield, Immunologist. The respondent
called Professor P. Gatenby, Immunologist. The applicant was represented by Mr
R. Mildren, and the respondent by Mr C. Erskine, both of counsel.
Both parties agree that in April 1985
the applicant suffered a needle-stick injury in the course of his employment.
They also agree that the applicant ultimately developed chronic fatigue
syndrome, which is a recognisable condition of unknown cause. The respondent
also concedes that from approximately August or September 1986 the applicant
suffered an incapacity to varying degrees. The sole issue for review by the
Tribunal is whether the applicant's chronic fatigue syndrome is caused by the
needle-stick injury.
EVIDENCE OF THE APPLICANT
The applicant, born 27 February 1958,
commenced work with the Australian Federal Police on 28 June 1982. In March
1985 he was transferred to the City Station of the Australian Federal Police,
where he undertook general duties. In the early hours of 29 April 1985 he
attended a scene in Turner where a large number of syringes and a drawer were
present on a road. He collected the syringes by hand and placed them into the
drawer, which he then took to the City Station. Whilst taking the syringes into
the station, he held the drawer with his left hand to open a door, after which
he replaced his right hand on the drawer and immediately felt a pain in his
right hand. He looked down to see a syringe sticking into the top of his right
fifth finger and as he withdrew his hand he noticed a very small drop of blood.
He attended Royal Canberra Hospital at approximately 3.30 am, and either
returned the same day or the next day at approximately 3.30 pm. The applicant stated
that he saw a very small puncture wound in his finger, although no puncture was
subsequently seen by the examining doctor (T6).
The applicant gave evidence that within
7 to 10 days after the incident he experienced a range of symptoms, including
abdominal cramps and a gastric attack, fever, fatigue, headaches, muscle pain
and general tiredness. He agreed that he had felt some of these symptoms
before, but not as severely, and this time the gastric attack did not subside.
The symptoms continued, worsening towards the end of 1985 and running into
1986. He confirmed in cross-examination that these symptoms continued between
May and July 1985.
The applicant stated that following the
incident he saw Dr D. Smyth of the Australian Federal Police regularly.
However, on later inquiry, he had been told that Dr Smyth's records had been
lost. In cross-examination he stated that he saw Dr Smyth approximately 2-3
times per week regarding follow up treatment for hepatitis B vaccine and for
the symptoms he was experiencing. Dr Smyth worked in an adjacent building to
that of the applicant. The applicant did not recall whether he had been issued
with certificates by Dr Smyth during the period of May to July 1995. After
extensive cross-examination he conceded that he may not have taken any sick
leave until August, apart from a day off on 22 June 1985 due to a foot injury,
and on 6 July 1985 for an unspecified illness. He did however take issue with
the accuracy of the sick-leave records.
During cross-examination it was put to
the applicant that a number of medical reports, including those of Dr M. Faunce
(T20; T27) and Dr P. Collignon (T28) gave a different history and time-frame of
the commencement of his symptoms. The applicant reiterated that his symptoms
definitely commenced 7 to 10 days after the needle-stick incident. He was also
shown two statements, one in his name, and one in his ex-wife's name (Ann Maree
Neeson), neither of which had been signed, which mention symptoms of loss of
appetite and fatigue in late June 1985. Counsel for the respondent put to the
applicant that neither of these statements mentioned symptoms occurring in May
1985, and neither mentioned his other claimed symptoms such as abdominal
cramps, fever and headache. The Tribunal notes that neither of these were
signed and both were intended as drafts.
On 16 May 1985 the applicant returned to
the city watch-house on different duties and soon after sought treatment from
Ms J. Clews of the Acupuncture and Naturopathy Centre. Her treatment had no effect,
but despite this he continued to work. In July 1985 he took recreation leave
and went to Thailand with his then wife. On his return from Thailand he was
still unwell and went from having a 34-35 inch waist to a 30 inch waist. In
August 1985 he saw Dr D. Roantree and had a week off (T7/13). The Tribunal
notes that the respondent subpoenaed the clinical notes of Dr Roantree's
practice, but was informed by his practice that there were no clinical records
held for the applicant. However the Tribunal notes that a medical certificate
was issued by Dr Roantree whereby the applicant was certified unfit for work
from 12 August to 16 August 1985 without indication of what his illness was
(T7).
The applicant gave evidence of having
suffered conjunctivitis, which he first noticed in May 1985, and was referred
to Dr S. Saunders in late 1985.
In September 1986 he attempted a six
week motor cycle training course, but after two days was withdrawn by Dr B.
Dwyer due to the severity of his symptoms, which included fever, abdominal
pain, muscle joint pains, dizziness and sweating. He was then transferred to
clerical duties in the Traffic Branch. The Tribunal notes that during this
period Dr Dwyer diagnosed the applicant with glandular fever (T17), but this
diagnosis was not subsequently supported by biochemical studies (Exhibit R9).
He continued to see Dr Dwyer and Dr Smyth at the Australian Federal Police
during 1986.
The applicant then saw Dr Faunce and Dr
Collignon. On 14 February 1987 he married but separated in 1990. He stated that
after the marriage he continued to suffer symptoms and believes that they
worsened over time.
In 1987 he lodged a claim for workers
compensation (T32), at that stage believing that he suffered hepatitis because
of the discomfort he experienced on the right side under his lower rib cage.
The applicant stated that this pain commenced soon after the needle-stick
incident.
He had a major absence from work in
March 1988 during which he commenced seeing Dr S. Close, who administered
regular gamaglobulin injections to no effect. He took time off again in 1992
when he commenced seeing Dr J. Turtle as his general practitioner, whom he
continues to see. He commenced a graduated return to work in December 1992, and
increased his hours to eight hours per week in 1993, until he went off work on
10 November 1993.
He was referred to Professor D.
Wakefield in February 1994. In February 1995 he moved to Sydney and again
commenced a gradual return to work, but ceased on 13 March 1996 because of
further deterioration of his health.
MR P. SMYTH
Mr Phillip John Smyth, a friend, first
met the applicant in 1982 and shared a house with him for 12 months. Since then
they have remained close friends. He gave evidence that prior to the 1985
incident the applicant was of above average fitness, his physical activities
included water skiing, snow skiing, surfing, swimming and running, as well as
training to enter the police force.
On 21 April 1985 Mr Smyth travelled to
the United States of America. He telephoned the applicant on 18 May 1985 and
made a note in his diary (Exhibit R10) as follows: "called Hugh. Neeson He
Said he got stuck by a needle and might have AID or something. I hope not."
He gave evidence that he had an independent recollection of the conversation
and that the applicant had stated he had been feeling sick and felt tired and
listless. Mr Smyth phoned the applicant again from the USA on 6 June 1985 and
his diary notes: "Called Hugh to see how he was going still sick but not
aids thank god". He also recalled the applicant having told him his doubts
about going on his trip to Thailand in July of 1985 because "he was
feeling that lousy". He indicated that he saw the applicant on 1 September
1985, the day after his return from the USA, and noticed that the applicant had
"lost a pile of weight", looked drawn and, whereas usually he was
effervescent, he was now slow. The applicant's condition seemed to deteriorate
further around the time of the motor cycle course. The Tribunal found Mr Smyth
to be a credible witness with a good memory for details.
MR P. NEESON
Mr Peter Lamerton Neeson, the
applicant's brother, corroborated the evidence of the applicant and Mr Smyth
that, prior to the 1985 needle-stick injury, the applicant was in good health.
Mr Neeson stated that, following the 1985 incident, he and his family were
concerned for the applicant and his health. In particular, he recalled that the
applicant was unable to attend a birthday party for Mr Neeson's partner because
the applicant felt too ill. The party was held in the latter part of June 1985.
Mr Neeson understood that the applicant hoped the 1985 holiday to Thailand
would provide him with the rest he needed and an environment for improvement.
Mr Neeson believes the applicant went to Thailand in mid 1985. He could also
recall the applicant having told him that he had been seeing a general
practitioner as well as a police doctor, although he could not tell the
Tribunal their names. He had also observed that the applicant had lost a great
deal of weight during this period of mid 1985.
SERGEANT J. BROWN
Sergeant Jeffrey Brown, Australian
Federal Police, told the Tribunal that the applicant had worked for him for
about 5 months from October 1984. He stated that at that time the applicant was
a very good worker and was fit and healthy. The applicant was transferred in
March 1985. Sergeant Brown stated in evidence-in-chief that he had drinks with
the applicant before the latter's trip to Thailand in 1985 and noticed the
applicant had lost a considerable amount of weight. In cross-examination he
stated that there is a slight possibility that he had had the drinks with the
applicant soon after his return from Thailand. Notwithstanding this, he was
adamant that from 1985 until the present he had noticed considerable change in
the applicant since the time he had worked for him. He described the applicant
at that time as being outgoing and happy and hard working, whereas he now found
the applicant in "lay-man's terms" to be "lazy".
MEDICAL EVIDENCE
professor j. dwyer
Professor J. Dwyer is an Immunologist
and a specialist in chronic fatigue syndrome. He believed that, if the
applicant developed symptoms within 7 to 10 days of the needle-stick injury,
then that injury was very likely to be the cause of his symptoms. However he
would be much less confident of this conclusion if the symptoms came on more
than 3 weeks after the incident. Although he could not specify what particular
infectious agent might have been present in the needle, if the applicant was
healthy prior to the incident and developed symptoms within 3 weeks after the
incident, then it is probable there is a relationship between the needle-stick
injury and his subsequent development of chronic fatigue syndrome.
Professor P. Gatenby's view that the
idea of post viral chronic fatigue syndrome has not withstood detailed
examination or the test of time particularly well (see Exhibit R3) was put to
Professor Dwyer. Professor Dwyer stated he believes a viral illness is often a
trigger for chronic fatigue syndrome, and in many cases his medical team at the
Prince of Wales Hospital has been able to document typical viral like illnesses
that may trigger chronic fatigue syndrome. His medical team is now
concentrating on people with clear-cut viral onset of chronic fatigue syndrome.
Professor Dwyer was also questioned
about Dr Faunce's doubts that the needle-stick injury could have resulted in
infection to explain the applicant's symptoms (see Dr Faunce's report of 10
August 1987 (Exhibit R9)). Professor Dwyer stated that since 1986-1988 there
has been a marked improvement in the understanding of chronic fatigue syndrome
and blood-borne transmission. He also commented on having seen chronic fatigue
syndrome develop in patients with Hepatitis C transmission.
PROFESSOR D. WAKEFIELD
Professor D. Wakefield is an
Immunologist with extensive experience of chronic fatigue syndrome and has been
the applicant's treating physician since 1994. He has co-authored over 45
publications relating to chronic fatigue syndrome (T199). He produced reports
dated 20 June 1994 (T139), 19 December 1995 (T178), 19 July 1996 (T199) and 2
September 1996 (T210).
Professor Wakefield expressed similar
views to those of Professor Dwyer and also disputed Professor Gatenby's view
noted in paragraph 20 above. He conceded that the cause of chronic fatigue
syndrome is not known and that chronic fatigue syndrome does not always follow
a viral illness; but he stated that, despite this, there is good evidence that
chronic fatigue syndrome can follow viral infection (for example CMV,
Hepatitis, Epstein-Barr Virus, Ross River Virus and Q Fever). He believed the
most likely scenario for the development of chronic fatigue syndrome in this case
was the applicant developing a viral illness after an incubation period, which
then led to chronic fatigue syndrome. He stated that it is possible that either
the illness the applicant experienced in April 1985 or that which he
experienced in August 1986 could have been the trigger for his chronic fatigue
syndrome, and chronic fatigue syndrome could be triggered by a second viral
illness. When asked what a possible mechanism for the applicant's chronic
fatigue syndrome could have been, he postulated the potential for new viruses.
Professor Wakefield stated that, if the
symptoms had occurred 3 to 4 weeks after the injury, he would still suspect the
injury as being the cause because micro-organisms have different incubation
periods, from 1 to 2 weeks to 6 months.
PROFESSOR P. GATENBY
Professor P. Gatenby, Immunologist, has
seen patients with chronic fatigue syndrome at a rate of one new patient every
two weeks from the mid-1980s, and is a member of the Royal Australasian College
of Physicians Working Group to develop Clinical Practice Guidelines on chronic
fatigue syndrome. He has never treated the applicant; however, he reviewed the
applicant's medical reports and laboratory tests, and interviewed and examined
him on 24 February 1997.
The Tribunal found Professor Gatenby's
views with respect to chronic fatigue syndrome to be largely in line with those
of Professors Dwyer and Wakefield; however his views as to causation differed.
Professor Gatenby believes the cause of chronic fatigue syndrome is not yet
known but accepts that a number of ideas have been proposed, including that it
could be triggered by a viral illness, but he considered that the evidence for
this view is retrospective and is consequently "soft". He believes
that the connection between chronic fatigue syndrome and viral illnesses may be
pure coincidence.
In cross-examination he said it was
possible that a virus could trigger chronic fatigue syndrome, but was not
willing to go as high as probable. He stated that, if one were to accept that a
viral illness could be the trigger for chronic fatigue syndrome, the initial
illness would not have to be severe to produce chronic fatigue syndrome, as
patients who report a viral illness prior to chronic fatigue syndrome report a
range of symptoms. Further, the viral illness would have to be of a type which
would be regarded as significant, namely one which would normally require a
significant period of rest and recuperation, although the particular bout
experienced may be mild.
Professor Gatenby told the Tribunal that
he understood there was no evidence of the applicant having experienced a viral
illness after 1985 incident, but that if there were such evidence he agreed it
would provide a "plausible linkage" between a defined viral illness
and chronic fatigue syndrome.
DOCUMENTARY EVIDENCE OF SYMPTOMS
The Tribunal found corroborative
evidence to support the applicant's contention in the notes of Ms J. Clews,
Naturopath (Exhibit R7). In particular the Tribunal notes a record of
consultation dated 2 July 1985 which records that the applicant had sustained a
needle-stick injury at work whilst he was picking up a needle from a road on 29
April 1985. It also records that the applicant suffered the following symptoms:
sore eyes, weight loss, "liver type nausea", vomiting, loss of
appetite, stomach and lower abdomen cramps, and nervousness about the effects
of the incident. This is the first written record of a health worker which
indicated what symptoms the applicant suffered after the incident.
The applicant saw Ms Clews again on 28
August 1985 and she noted that his symptoms included nausea, vomiting several
hours after eating, stomach cramps which eased with heat, weight loss and
looking very tired and run down. Hence, the evidence of these two consultations
implies that Ms Clews saw the applicant both before and after his trip to
Thailand and noted that he had lost weight both before and after that trip.
Counsel for the respondent made issue of
the inconsistencies in dates recorded by various medical practitioners as to
both the time of the needle-stick incident and the onset of symptoms suffered
by the applicant. The respondent suggested that this may be the result of
inconsistent histories given by the applicant to these practitioners. The
Tribunal notes the inconsistencies of dates of the injury and the onset of
symptoms as recorded by various doctors. However the Tribunal does not accept
the respondent's submission that these errors and inconsistencies are due to
inaccurate history being provided by the applicant. The Tribunal has considered
the various medical reports and has noted additional errors to those pointed
out by the respondent. The Tribunal does not believe there is any evidence to
link these errors to the applicant. There is also equal support for the view
that many of these errors, once recorded in medical reports, were perpetuated
in future reports.
The Tribunal has already noted that the
applicant took five days of sick leave from 12 August to 16 August 1985 on a
certificate from Dr Roantree's office. Although the certificate is present in
the s.37 documents (T7) it does not specify the
reason why the applicant was unfit for work, and as stated earlier, the
clinical notes of Dr Roantree are not available. The Tribunal cannot therefore
precisely determine the reason for this period of leave. The applicant was also
unable to give a precise answer.
DISCUSSION
The respondent accepts that the
applicant suffered a needle-stick injury and based on the evidence of the
applicant, the Tribunal finds that this occurred in the early hours of 29 April
1985. There is also no dispute that the applicant ultimately developed chronic
fatigue syndrome and that he was incapacitated in varying degrees after
approximately August or September 1986.
The applicant submits that he had good
health prior to April 1985; seven to ten days after the needle-stick injury he
experienced a range of symptoms, and he has continued to suffer these symptoms
in varying degrees since then. The applicant's evidence is supported by a
number of pieces of evidence. Mr Smyth gave evidence that he had telephoned the
applicant from the United States of America in May 1985 (approximately 20 days
after the incident); and had been told about the needle-stick injury and that
the applicant was feeling sick. On his return to Australia Mr Smyth noticed
that the applicant had lost weight and looked ill. The Tribunal found Mr Smyth
to be a truthful witness. The evidence suggests the applicant was suffering
some or all of his reported symptoms by May 1985 and corroborates the
applicant's evidence.
The applicant's oral evidence as to the
onset of symptoms is also given some support by the evidence of his brother, Mr
P. Neeson, and that of Sergeant Brown. Mr P. Neeson gave evidence that the
applicant was ill and tired prior to his trip to Thailand in mid 1985; and
Sergeant Brown believed, although he could not be certain, that the applicant
had lost a considerable amount of weight prior to his trip to Thailand. In
addition, the clinical notes of Ms Clews indicate that the applicant was
suffering symptoms including nausea, vomiting, weight loss and headaches by 2
July 1985, just over two months after the needle-stick incident.
Based on these pieces of evidence, the
Tribunal accepts that the applicant experienced at least some of the reported
symptoms within 20 days of the needle-stick injury. The respondent placed
emphasis on the fact that there are no medical records to indicate that the
applicant had been seeing a medical practitioner in relation to his complaints
in the period May to July 1985. The respondent also questioned the applicant's
failure to take leave during this period up until the five days of leave taken
in August 1985. The applicant gave evidence that he had been seeing Dr Smyth of
the Australian Federal Police, albeit informally. The evidence was that the
applicant worked in an adjoining work area and would sometimes have coffee with
Dr Smyth. On the balance of probabilities, the Tribunal finds that the
applicant had been seeing Dr Smyth in relation to obtaining inoculations for
hepatitis, and would also see him informally during which times he would
mention his symptoms. The Tribunal has also had an opportunity to observe the
applicant, and believes that it would be consistent with his character for him
to attempt to pull through any difficulties he may be experiencing with his
health and may continue to work even though he is feeling ill. The Tribunal
finds the applicant's evidence that he worked on despite suffering symptoms to
be credible. The Tribunal therefore finds that there is a temporal connection
between the applicant's needle-stick injury and the onset of symptoms.
The Tribunal accepts that all three of
the Professors who gave evidence are experts in their field and appreciates
their assistance in reaching a view as to causation. Both Professor Dwyer and
Professor Wakefield believed that, if a temporal connection could be
established between the needle-stick injury and the onset of symptoms, then it
would be highly probable that a viral infection had occurred at the time of the
needle-stick injury, which could then be postulated as the trigger for the
applicant's development of chronic fatigue syndrome. Both Professors conceded
that the cause of chronic fatigue syndrome is not known, but they stressed that
there is good evidence to support the theory of its development following a
significant viral illness.
Professor-Gatenby also pointed out that
the cause of chronic fatigue syndrome is not known, but he does not believe
that there is any connection between this syndrome and viral illnesses. He was
however willing to concede the possibility that a virus could be a trigger for
chronic fatigue syndrome, but was unwilling to say that the existence of such a
connection was "probable". He also conceded that, if there were
evidence of the applicant having experienced a viral illness after the
needle-stick injury, there would be a "plausible linkage" between a
"defined viral illness" and the subsequent onset of chronic fatigue
syndrome.
Given the current state of medical
knowledge with respect to chronic fatigue syndrome the Tribunal cannot make an
equivocal statement as to the causation of the applicant's condition. However,
in taking the history of the onset of symptoms in connection with the medical
evidence, the Tribunal finds that, on the balance of probabilities, there is a
link between the needle-stick injury and the development of viral like symptoms
within 20 days of the incident. Both Professor Dwyer and Professor Wakefield
believe that this would be sufficient to connect the applicant's development of
chronic fatigue syndrome to the incident. Professor Gatenby also conceded that
this history would provide a plausible link. Therefore while the Tribunal
reiterates that it cannot be unequivocal about this, in view of the present
limited state of relevant medical knowledge, it finds that a causal link
between the applicant's apparent viral illness and his subsequent development
of chronic fatigue syndrome is probable.
Accordingly, the Tribunal, pursuant to s.43 of the Administrative Appeals Tribunal Act 1975, sets aside the decisions under review and in
substitution therefore determines that the applicant's chronic fatigue syndrome
was caused by the needle-stick injury which occurred during the course of his
employment on 29 April 1985. The Tribunal also determines that the respondent
is liable to pay compensation to the applicant in respect of continuing partial
incapacity pursuant to ss.16 and 19 of the Safety Rehabilitation and
Compensation Act 1988.