ARDYNE MAY ALLISON REID v COMCARE AUSTRALIA No. A93/110 AAT No. 9669

Number of pages - 12 Compensation

 
 
ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
D J GRIMES (Senior Member), N J ATTWOOD (Member) AND H G JULIAN
(Member)
 
 
HRNG
 
CANBERRA, 15 June 1994

#DATE 15:8:1994
 
 Counsel for the Applicant: Mr N Selby QC
 
 Solicitors for the Applicant: Pamela Conard and Assoc
 
 Counsel for the Respondent: Ms R Henderson
 
 Solicitors for the Respondent: AGS Canberra
 
ORDER
 
 The Tribunal sets aside the decision under review and finds therefor, that
the applicant was incapacitated for work as a result of an aggravation to an
injury caused by the increase in work hours initially recommended by the
Commonwealth Medical Officer on 15 July 1991. The matter is remitted to the
respondent with the direction that assessment of any compensation payable be
made in accordance with the Tribunal's findings.
 
JUDGE1
 
D J GRIMES, N J ATTWOOD AND H G JULIAN This is an application for review
of
a decision dated 29 July 1993 which affirmed a determination of the 5 January
1993 which disallowed a claim of the applicant for compensation in respect of
work related stress.
 
2. The applicant was represented by Mr N Selby QC, and the respondent was
represented by Ms R Henderson of counsel. The Tribunal accepted into evidence
the documents lodged pursuant to section 37 of the Administrative Appeals
Tribunal Act 1975 and the following exhibits:
 Report of Dr S Van Nunen dated 25 March 1994 Exhibit A1
 Report of Dr S Van Nunen dated 20 April 1994 Exhibit A2
 Report of Dr J L Sanderson dated 29 April 1994 Exhibit A3
 Report of Dr P Collignon dated 4 February 1994 Exhibit R1
 Report of Dr P Collignon dated 5 March 1994 Exhibit R2
 Medical Certificate of Dr B H Richards dated 14 June 1988
  Exhibit R3
 Medical Certificate of Dr B H Richards dated 20 June 1988
 Exhibit R4
 Letter of Dr M Pidcock dated 16 December 1991 Exhibit R5
 Medical Certificate of Dr J L Sanderson dated 18 August 1993
 Exhibit R6
 Sick leave records of the applicant Exhibit R7
 Recreational leave records of the applicant Exhibit R8
 Long service leave records of the applicant Exhibit R9
 Miscellaneous leave records of the applicant Exhibit R10
 Clinical notes of Dr B H Richards Exhibit R11
 Clinical notes of Dr J L Sanderson Exhibit R12
 Second reading speech for Commonwealth Employees'
 Rehabilitation and Compensation Bill 1988 Exhibit R13
 
3. Oral evidence was given by the applicant, Dr J L Sanderson, Dr S A Van
Nunen, Dr P Collignon, Dr B H Richards and Dr K E Tymms.
 
4. The applicant was born in 1934 and is currently employed with the
Department of Human Services and Health as a Senior Officer Grade C. She has
not worked since July 1993.
 
5. The applicant gave evidence that her troubles started in August 1987 when
she had an episode of what she now considers to have been glandular fever.
 
6. In November 1987 she had an episode of laryngitis and felt unwell. Then
in March 1988 she drove to Sydney for a family wedding and on her return felt
unwell. She consulted her general practitioner, Dr B Richards, who she says
diagnosed glandular fever.
 
7. In November 1989 the applicant again had an episode of fever, muscle pains
and sweating and saw Dr Richards who she again thought diagnosed glandular
fever. The applicant says she discussed chronic fatigue syndrome with Dr
Richards. She told the Tribunal that when she contacted Dr Richard's practice
last year, she was told by his receptionist that his diagnosis in 1989 had
been glandular fever.
 
8. In February 1889 she transferred to another general practitioner, Dr J L
Sanderson, as she believed Dr Richards did not want to treat her anymore. The
applicant told Dr Sanderson that Dr Richards had diagnosed chronic fatigue
syndrome. Dr Sanderson agreed with the diagnosis and started treating the
applicant and assessing her progress with among other tests CMI Skin Tests
which the applicant believes measures her level of immunity.
 
9. The applicant gave evidence that she tired easily, could not work, felt
lethargic and could not function properly. She was off work from March to
July 1990 on sick leave. From July to October 1990 she commenced a graduated
return to work on the recommendation of the Commonwealth Medical Officer. In
late October, early November 1990 the applicant returned to full time work,
reluctantly, at the request from her superior because of illness amongst the
staff members. She still suffered considerable fatigue.
 
10. From January to June 1991 the applicant symptoms of fatigue and weakness
became worse, culminating in June 1991 with her taking two weeks sick leave.
Dr Sanderson, examining the applicant in July 1991, recommended she return to
work at a maximum of three hours per day, until a further review was conducted
the following month.
 
11. On 15 July 1991 a Commonwealth Medical Officer, Dr A Tinnion examined the
applicant and recommended a graduated program of return to work, starting with
four hours per day from 22 July 1991, and then increasing by one hour per week
from 29 July 1991 until she had returned to full-time duties. Dr Tinnion did
not agree with the diagnosis of chronic fatigue syndrome.
 
12. In August 1991, the applicant was working 6 hours per day. She found this
unmanageable and subsequently reduced the number of hours to five per day. In
an accident report completed on 15 August 1991, the applicant attributed her
inability to attend work on 9 August 13 August and 14 August 1991 to
attempting to fulfil the work recommendations of the Commonwealth Medical
Officer.
 
13. In September 1991 Dr Boyapati, a Commonwealth Medical Officer, accepted
the diagnosis of chronic fatigue syndrome and recommended the applicant
continue at her current pace and increase her work by half an hour per day.
 
14. A return to full time duties was achieved by the applicant in late
September 1991. In late 1991 and for the first half of 1992 the applicant
continued working with symptoms of lethargy, fatigue and mental confusion
which she described as "like working in a fog".
 
15. In evidence she said that for the first hour of the working day she was
fine, but would gradually "fade", and by the end of the day was "almost
useless". She said she was slower in work and that this affected her
relations with her collegues who had to "pick up the work" for her. She took
several days sick leave and recreational leave.
 
16. On 10 August 1992, the applicant made an application for compensation for
work related stress, which she attributed to performing full time work whilst
suffering from a post viral syndrome associated with the Epstein Barr Virus.
That claim was subsequently disallowed on 5 January 1993.
 
17. From 11 August 1992, the applicant's working hours were reduced to 4
hours 4 days per week.
 
18. The applicant was reviewed by Dr J H Hudspith, AGHS Medical Officer, who
referred her to Dr C R Ashton, consultant physician. Dr Ashton examined the
applicant on 1 September 1992 and recommended a gradual increase in work load
by two hours per week.
 
19. On 26 October 1992, Dr Mackay, a Commonwealth Medical Officer, reviewed
the applicant and recommended that she continue on restricted hours, without
any immediate increase. He also advised that the applicant work at her own
pace, with a possible decrease in hours to prevent exacerbation of symptoms.
 
20. The applicant gave evidence that working part-time was an "enormous
relief", the only difficulty being that her absence created more work for
other employees and this negatively affected her relationships with them.
 
21. The Tribunal notes the sick records of the applicant which indicate that
there were repeated absences from work, particularly in late 1992 and 1993,
for which chronic fatigue syndrome was given as an explanation.
 
22. On 1 February 1993, the applicant was redeployed to full-time hours.
Since July 1993 she has not worked because of her severe chronic fatigue
syndrome. The applicant gave evidence that she takes considerable interest in
chronic fatigue syndrome and helps produce a newsletter on the subject. She
takes great interest in her CMI skin tests which she believes is a measure of
her immune system and hence measures the degree of severity of her chronic
fatigue syndrome. She has also taken her temperature daily, believing this
may be of some value in measuring her progress.
 
23. Since taking extended leave in July 1993 she has had six months almost
complete rest. She described her present daily regime as breakfast at 8.00
am, then return to bed until mid-day when she showers, dresses and has lunch.
She watches television and video, sometimes drives to the shops, watches late
night television and listens to the radio in bed. This regime is in response
to the specialist advise of Dr Van Nunen who recommended her to "do what you
can". The applicant told the Tribunal she would continue this regime until
her symptoms stabilise at which point she would extend her activities.
 
24. The applicant told the Tribunal that there was marked difference in her
present condition and her condition in mid 1991. She said that although some
symptoms were more acute, she was no longer "in a fog", and did not feel
permanently ill. She said there was less incidence of sore throats, no night
sweats, and she did not seem to pick up as many viruses.
 
25. In evidence, the applicant expressed a willingness to work, but said she
was hindered by her condition.
 
26. The basis of the applicant's claim is that her chronic fatigue syndrome
was aggravated at work by stress caused by having to return to work for too
many hours too quickly as ordered by the Commonwealth Medical Officer,
contrary to the views of her general practitioner; by stress at work caused by
resentment by other workers at her short hours; by having to work in air
conditioned offices with other workers with infections nearby.
 
Medical Evidence
27. With one exception, the medical evidence before the Tribunal produced
general agreement that the applicant suffers from chronic fatigue syndrome .
However, views as to the cause of the syndrome, the treatment and the
diagnostic measures used to judge the progress of the disease varied
considerably.
 
28. Dr B H Richards, a general practitioner who treated the applicant until
1989, gave oral evidence that he had performed Epstein Barr Virus Tests on the
applicant in 1988 and 1989. These had indicated previous glandular fever
infection but not present infection. Dr Richards stated that he did not make
a diagnosis of chronic fatigue syndrome as he does not consider it a useful
label or valid diagnosis, being in his view merely a description of symptoms.
In his opinion, a diagnosis of chronic fatigue syndrome placed people "in a
sick role". Dr Richards told the Tribunal he could recall discussing chronic
fatigue syndrome or myalgic encephalomyelitis with the applicant but did not
diagnose her symptoms as such.
 
29. Dr J Sanderson, the applicant's general practitioner since February 1990,
gave evidence that he had no doubts as to the diagnosis of chronic fatigue
syndrome. He considered the CMI Test to be a good and fairly reliable test of
the immune systems capabilities. He accepted however, that the diagnosis of
chronic fatigue syndrome was one of conclusion rather than analysis of tests.
 
30. In a report of 29 April 1994, Dr Sanderson opined that the applicant's
condition was adversely affected by being directed to work by the Commonwealth
Medical Officer in 1991 when she was "not in a fit and proper state to do so".
In his view, the applicant has still not recovered from the relapse. He
expected recovery to take a further eighteen months to two years before the
applicant could sustain full duties at work.
 
31. When questioned as to why some of the medical certificates issued by him
in respect of the applicant had specified "work stress" rather than chronic
fatigue syndrome , Dr Sanderson said that this was because of difficulties
experienced when he had given the diagnosis of chronic fatigue syndrome on
other patient's medical certificates.
 
32. Dr O Tinnion, a Commonwealth Medical Officer, reviewed the applicant on
15 July 1991. In a report of the same date, Dr Tinnion noted the applicant
had a history of chronic fatigue syndrome, although he did not believe such a
diagnosis was justifiable without an opinion from an immunologist. However,
given the applicant's history of chronic fatigue syndrome, Dr Tinnion
recommended a gradual return to work of four hours per day, five days per week
from 22 July 1991 with an increase of one hour per day from 29 July 1991.
 
33. Dr K Tymms, a specialist rheumatologist, examined the applicant on 23
August 1991 and gave evidence to the Tribunal. She appeared to accept the
diagnosis of chronic fatigue syndrome but was of the view that either working
or not working makes little difference to the condition. However, Dr Tymms
accepted that in terms of coping sensibly with the symptoms, it was beyond the
applicant's capacity to work more than six hours per day. It was important in
her view, that patients with the syndrome did not become reliant on that
diagnosis as a means of modifying their life pattern. She did not believe
that the CMI Tests were a useful means of gauging the progress of the disease.
 
34. Dr K Boyapati, a Commonwealth Medical Officer, assessed the applicant in
September 1991, and noted symptoms consistent with the diagnosis of chronic
fatigue syndrome. Dr Boyapati considered the applicant fit to continue at her
current working hours, and increase her work by a further half an hour per day
each week until a full return to work was achieved.
 
35. Dr J H Hudspith, an AGHS Medical Officer, examined the applicant on 20
August 1992. He recommended the applicant continue at her present working
schedule of four hours per day, four days per week. He declined to make
further recommendations without specialist opinion.
 
36. Dr Ashton, a consultant physician, examined the applicant on 1 September
1992 on referral from Dr Hudspith. In a report of 1 September 1992, Dr Ashton
noted symptoms consistent with a diagnosis of chronic fatigue syndrome. He
commented that:
 "It could take up to three years or more for people to recover
 from chronic fatigue syndrome and she (the applicant) should be
 coming out of it about now."
Dr Ashton recommended diet, long periods of rest, and exercising within the
limits of her capacity. A gradual increase of two hours per week was
recommended.
 
37. In a further report dated 30 June 1993, Dr Ashton confirmed the diagnosis
of chronic fatigue syndrome, however, he did not believe it to be related to
her work or place of employment initially "but during the period of conflict
in 1992, at the time she was working on reduced hours, there may well have
been some stress at work that could have aggravated her situation to some
small degree". Dr Ashton recommended the applicant be redeployed to a "less
exacting position". He expected a return to normal employment to take some
months.
 
38. Dr K H Mackay, a Commonwealth Medical Officer, reviewed the applicant on
26 October 1992 and noted she appeared to be suffering from chronic fatigue
syndrome. Her history showed a series of exacerbations consistent with the
syndrome. Dr Mackay noted that the applicant reported some conflict with her
supervisor and that she felt the supervisor wanted to get rid of her, creating
a stressful situation at work. Dr Mackay did not consider a graduated return
to work program aggravated the applicant's condition. He recommended the
applicant continue on restricted hours without any immediate increase.
 
39. Dr P Collignon, a specialist in infectious diseases and microbiology,
examined the applicant in February 1994. He gave evidence that he had seen a
large number of patients with chronic fatigue syndrome, and provided written
reports dated 4 February 1994 and 5 March 1994 and oral evidence to the
Tribunal.
 
40. Dr Collignon opined that the applicant appeared to be suffering from
symptoms consistent with chronic fatigue syndrome. However, he noted that
there is no objective test that can ever diagnose or exclude the condition.
Diagnosis relies predominately on symptomatology exhibited by the patient. In
his view, the tests demonstrating that the applicant had in the past a
glandular fever infection were largely irrelevant because although it was
accepted that chronic fatigue syndrome represents a long ongoing reaction to
infection, glandular fever is just one reported possible cause.
 
41. In his experience a number of factors, including exercise and stress can
exacerbate the symptoms of chronic fatigue syndrome, but for such factors to
prolong the illness by two or three years, as is suggested in the applicant's
case is longer than he would expect. Dr Collignon does not believe that the
prolonged rest prescribed by Dr Sanderson and Dr Van Nunen assists. His
therapy would be to assist the patients to place themselves within the limits
of their symptoms and support them through periods of exacerbation.
 
42. In Dr Collignon's opinion, it was difficult to determine the degree to
which the applicant's work contributed to her condition. He noted it was
possible that increasing workloads and stress could exacerbate the condition.
Assessment of the degree of the of the applicant's incapacity was also
difficult as it was entirely reliant on the history given by the applicant.
In Dr Collignon's view, the applicant's history did not suggest that she was
entirely incapacitated for work.
 
43. Dr S Van Nunen, a specialist physician from the Department of Allergy at
Royal North Shore Hospital, provided two written reports and oral evidence to
the Tribunal. Dr Van Nunen first saw the applicant at the request of her
solicitor, but since then has been her treating doctor. The doctor gave
evidence that she had treated individuals with chronic fatigue syndrome since
1981, in which time she had seen "hundreds if not thousands" of such patients.
Dr Van Nunen opined that the applicant began suffering from chronic fatigue
syndrome from December 1989, experienced a partial recovery through 1991 and
then a recurrence of severe symptoms at the end 1992 persisting to the present
time.
 
44. In Dr Van Nunen's view the applicant has a severe form of chronic fatigue
syndrome and stated in her report of 20 April 1994:
 "the direction to return to increased work hours which has
 occurred in 1991 from a Commonwealth Medical Officer has
 contributed to her ill health at the time. The question of
 whether or not this has contributed to the prolongation of her
 illness cannot be answered by anyone".
 
45. In a further report of 20 April 1994, Dr Van Nunen opined:
 "I cannot see that she has contracted this complaint in her
 employment but definitely agree that she has had it worsened
 by her understanding that she should work full-time from the
  medical officer involved."
 
46. Dr Van Nunen considered the timing of the increased hours was crucial in
the course of the illness, in that the it would have been more appropriate for
the applicant to have been resting. She considered it likely that the
applicant would be affected for two or three years as a result of this
exacerbation of the illness but because of the unpredictable nature of the
condition cannot be certain.
 
47. Dr Van Nunen does not consider the CMI multi skin test or the Epstein
Barr Virus tests are useful in the diagnosis or gauging of the progress of the
disease.
 
48. In summary there is a general consensus that the applicant suffers from
chronic fatigue syndrome. Only Dr Richards did not agree with this but then
this is not a diagnosis he is willing to make at any time.
 
49. Her general practitioner, Dr Sanderson, and her treating specialist, Dr
Van Nunen, are of the view that the applicant has chronic fatigue syndrome,
that her graduated return to work was too ambitious and this plus the stress
at work caused by her limitations, aggravated her condition to the extent that
she went into remission and is now unfit for work. The opinions of other
specialists seen by the applicant vary. Dr Tymms does not believe that work
is likely to effect her condition one way or the other, but accepts that the
applicant cannot cope with more than 6 hours per day with her condition.
 
50. Dr Collignon similarly does not consider work and stress are as
detrimental as did Dr Van Nunen and Dr Sanderson but, at the same time,
accepts that limitations of work are useful in encouraging recovery from the
disease.
 
51. The various Commonwealth Medical Officers and other specialists who saw
the applicant accepted both the diagnosis and the concept of graduated return
to work. The only differences were the rate of increase of work effort they
thought possible or desirable.
 
Conclusion
52. The Tribunal finds the applicant to be an intelligent, open and truthful
witness. She has, however, developed theories as to the cause and treatment
of her disease which have resulted in an introspective approach,
understandable in the light of the severity and duration of the symptoms but
probably unhelpful in developing a proper understanding of her condition.
 
53. The applicant is convinced she can trace the onset of her viral illness
to an attack of glandular fever in 1987 and 1989, not confirmed by the
physician or her general practitioner. She shares Dr Sanderson's view of the
usefulness of CMI multi skin tests as a measure of her progress which is not
shared by any of the other practitioners and in particular by Dr Van Nunen who
is otherwise in agreement with Dr Sanderson.
 
54. The respondent submitted that there was no work related aggravation of
the applicant's condition either by work stress or by the return to work in
mid 1991. It was argued that there was insufficient evidence to demonstrate
that the applicant had been placed under any such stress. Indeed, there was
no evidence of any time pressure and other employees completed work she was
unable to do.
 
55. The pattern of the applicant's return to work in mid 1991, in the
respondent's view, did not aggravate the applicant's condition. It was
submitted that there was a lack of evidence to support any such incapacity
linked to an increase in hours, and that any such conclusion based on the
applicant's symptomatology could not be accepted as the applicant was an
unreliable historian. The respondent argued that there were serious doubts as
to whether the applicant's employment had made any contribution to her
problems, and no evidence that it had contributed to it to a material degree
as required by the legislation.
 
56. Whilst noting the difficulties associated with a diagnosis of chronic
fatigue syndrome, the Tribunal accepts the overwhelming weight of medical
evidence that the applicant suffers from chronic fatigue syndrome and accepts
the evidence of her treating doctors that this syndrome is best treated by
rest and diet. The applicant does not contend that her chronic fatigue
syndrome was work caused, rather the dispute lies in the question of whether
her work with respondent aggravated the condition.
 
57. Comcare is liable to pay compensation pursuant to section 14 of the
Safety Rehabilitation and Compensation Act 1988 ("the Act") for an injury
suffered by an employee resulting inter alia, in incapacity for work.
"Incapacity" is defined in section 4(9) of the Act to include an incapacity to
engage in work at the same level at which the employee was engaged by the
Commonwealth or a licensed corporation, or any other work, immediately prior
to the injury.
 
58. The Tribunal accepts the evidence of the applicant's treating doctors and
finds that the applicant's condition was aggravated by her work. The Tribunal
accepts that chronic fatigue syndrome is a difficult condition to objectively
assess, in that it is reliant on the applicant's symptoms and the reporting of
those symptoms. On the evidence before it, the Tribunal is satisfied that
there was a marked worsening of symptoms following the applicant's increase in
work hours in accordance with the Commonwealth Medical Officer's
recommendation in July 1991. In the Tribunal's mind, an aggravation occurred
in several ways: first, directly by an onerous return to work on the advice of
Commonwealth Medical Officers and against the advice of her treating general
practitioner; and secondly, indirectly by the lack of staff available in her
section at work to cope with the work load. A contributing factor, although
of less importance was the stressful situation which arose at work because of
her incapacity to work full-time and the inter-personal tensions this created.
It is the Tribunal's opinion that the symptoms suffered by the applicant
following her return to work in 1991 were not of minimal or no significance,
as suggested by the respondent, but rather had considerable negative impact on
the applicant's condition.
 
59. The Tribunal finds that the applicant suffered an aggravation to her
condition as a result of which she was incapacitated for work. The Tribunal
notes that at the time of the hearing the applicant gave evidence of a marked
improvement in her symptoms, and whilst it beyond the power of this Tribunal
to make findings as to the future prospects of the applicant, it believes it
appropriate to make the observation that the evidence suggests the applicant
will be able to returned work on a graduated basis in the near future.
 
60. For the reasons given, the Tribunal sets aside the decision under review
and finds therefor, that the applicant was incapacitated for work as a result
of an aggravation to an injury caused by the increase in work hours initially
recommended by the Commonwealth Medical Officer on 15 July 1991. The Tribunal
remits the matter to the resapondent with the direction that assessment of any
compensation payable be made in accordance with the Tribunal's findings.