FEDERAL COURT OF AUSTRALIA

Corby v Comcare [2015] FCA 1124

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    When the Administrative Appeals Tribunal (the Tribunal) carries out a “review” of a decision under s 28 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), it is required to consider and address each serious submission advanced by an applicant on the evidence before it. The failure of the Tribunal to consider a submission of substance which, if accepted, is capable of affecting the outcome of the case is an error of law: Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157, (2013) 240 IR 178 at [47]-[48]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, (2003) 75 ALD 630 at [45]; Dennis Willcox Pty Ltd v Federal Commissioner of Taxation [1988] FCA 123 at [21], (1988) 79 ALR 267 at 276-7; Casarotto v Australian Postal Corporation [1989] FCA 116, (1989) 86 ALR 399 at 403.

2    The principal issue on this appeal is whether the Tribunal made an error of this kind when affirming decisions of Comcare refusing claims by the applicant for compensation.

Background

3    Between August 2005 and 29 November 2011, the applicant was employed in the Australian Taxation Office (ATO). The applicant suffered from ill health and, from about mid-2008, her health began to deteriorate significantly. In 2009, two separate medical diagnoses were made in respect of the applicant: fibromyalgia in March 2009 and chronic fatigue syndrome (CFS) in June 2009. The evidence before the Tribunal suggested that there was a close overlap between these two conditions.

4    On 21 September 2010, the applicant made a claim for compensation for the conditions of “chronic fibromyalgia, CFS and stress”. On 26 July 2011, she made a further claim for compensation in respect of “cold and/or pneumonia”. Comcare denied both claims, both initially and on reconsideration. By separate applications lodged on 4 May 2011 and 6 January 2012 respectively, the applicant sought review by the Tribunal of those decisions.

Statutory provisions

5    The base entitlement to compensation is established by s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act):

(1)    Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

Thus, the entitlement to compensation turns on the employee having suffered an “injury”.

6    The term “injury” is defined in s 5A(1) of the SRC Act to include “a disease suffered by an employee”. The full definition is as follows:

injury means:

(a)    a disease suffered by an employee; or

(b)    an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

(c)    an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

7    Of the alternative meanings of “injury”, only (a) includes a “disease”. That term is defined in s 5B:

(1)    In this Act:

disease means:

(a)    an ailment suffered by an employee; or

(b)    an aggravation of such an ailment;

that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

(2)    In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

(a)    the duration of the employment;

(b)    the nature of, and particular tasks involved in, the employment;

(c)    any predisposition of the employee to the ailment or aggravation;

(d)    any activities of the employee not related to the employment;

(e)    any other matters affecting the employee’s health.

This subsection does not limit the matters that may be taken into account.

(3)    In this Act:

significant degree means a degree that is substantially more than material.

As can be seen, the term disease means an “ailment” suffered by the employee, or the aggravation of such an ailment, if the employee’s employment contributed to it to a significant degree.

8    As to whether incapacity or impairment “results from” a disease, s 7(6) provides:

(6)    An incapacity for work or impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be:

(a)    the incapacity or impairment would not have occurred;

(b)    the incapacity would have commenced, or the impairment would have occurred, at a significantly later time; or

(c)    the extent of the incapacity or impairment would have been significantly less.

The Tribunal decision

9    After a hearing over seven days, the Tribunal found that the applicant had suffered from fibromyalgia from at least March 2009 and from CFS from at least June 2009, and that each of these conditions was an “ailment” for the purposes of the definition of disease in s 5B(1): Corby v Comcare [2015] AATA 42 at [15].

10    The Tribunal also found that the applicant had suffered from a respiratory illness in June 2008 but was not satisfied that the applicant’s employment had significantly contributed to the development of the illness, even if it was viral pneumonia. Accordingly, it found that that condition was not compensable: at [21]. That finding was sufficient by itself for the Tribunal to affirm Comcare’s decision in respect of the claim made on 26 July 2011 in respect of “cold and/or pneumonia”. There is no appeal against that part of the Tribunal’s decision.

11    Given the close inter-relationship between the conditions of fibromyalgia and CFS, the Tribunal considered it inappropriate to assess causation separately with respect to each: at [22]. That approach was consistent with that of the parties and with the medical evidence.

12    The written submissions of the applicant’s counsel in the Tribunal identified, under the heading “The Applicant’s Case on Causation”, four alternative factual bases on which it was said that the applicant’s employment with the ATO had contributed significantly to her fibromyalgia and CFS. These were:

9.1.    The introduction of Dialler in August 2007 caused distress at work, leading to the development of her FM and CFS;

9.2.    The applicant acquired an infection at work, which infection caused the development of FM and CFS;

9.3.    The applicant acquired a viral infection outside of work and she returned to work too soon, which led to an increase in her symptomatology, resulting in the development of FM and CFS;

9.4.    The work related emotional distress experienced by the applicant since July 2008 has exacerbated her FM and CFS, irrespective of what may have caused the initial development of such conditions. This exacerbation has manifested itself in ‘flare ups’ and a gradual decline in her health.

13    The terms “exacerbation” and its cognate used in [9.4] of those submissions do not appear in the SRC Act. On appeal, it was common ground that the terms had been used by the applicant’s counsel as though they were interchangeable with the terms “aggravation” and its cognates. It is evident that the Tribunal understood that that was so.

14    On this basis, it can be seen that by [9.1] to [9.3] counsel was invoking para (a) of the definition of disease, and by [9.4] para (b) of the definition. That is to say, counsel sought by [9.4] to show that the applicant came within the aggravation limb of the definition of disease.

15    The term aggravation in this context connotes an existing or established ailment becoming worse: Casarotto at 405, [23].

16    The Tribunal rejected the basis for the claimed contributions contained in [9.1] to [9.3] of counsel’s submissions. It then addressed separately whether the applicant had suffered any aggravation of her condition which gave rise to an entitlement to compensation. The greater part of the Tribunal’s reasons concerned this issue.

17    The Tribunal noted, at [47], that the applicant alleged that her employment had contributed to an aggravation of her fibromyalgia and CFS because of the “emotional distress” some of the “practices and processes at work” had caused. Counsel’s written submission identified this distress as arising from the applicant’s use of the unplanned leave line (UPL) to notify the ATO of her inability to attend work and from seven occasions of what was said to be bullying behaviour by her colleagues and supervisors. The Tribunal noted, at [49], counsel’s submission that the exacerbation of the applicant’s condition had occurred “since July 2008”.

18    The Tribunal took the view, at [55], that the question of whether, and if so, the extent to which the applicant’s condition had been aggravated by work-related stress was primarily a medical question and that the applicant had to establish more than a mere temporal connection: at [56]. That led the Tribunal to examine closely the evidence of the applicant’s treating physician, Dr Kwiatek. It concluded that Dr Kwiatek’s evidence indicated that stress had caused only temporary aggravations of the applicant’s ailments.

19    The Tribunal then examined the evidence concerning the alleged incidents of bullying and concluded, at [90], that the applicant had not been subjected to the bullying or other inappropriate behaviour which she alleged. In addition, the Tribunal was not satisfied that Dr Kwiatek’s evidence supported the proposition that the flare ups in the applicant’s symptoms had been attributable to work-related stress, at [90]-[95].

20    Next, the Tribunal considered whether any flare ups of the applicant’s condition had resulted in incapacity within the meaning of the SRC Act and concluded that they had not, at [118].

21    Accordingly, the Tribunal affirmed the decisions under review.

The Appeal

22    The applicant’s Notice of Appeal as originally filed complained only of the Tribunal’s findings with respect to the aggravation of her fibromyalgia and CFS. Her complaints were that the Tribunal had not made any finding as to whether she had suffered from an aggravation of the fibromyalgia and CFS to which her employment in the period before June 2009 had contributed, and that the Tribunal’s conclusion that work-related stress had not contributed to an aggravation of the fibromyalgia and CFS had failed to take account of matters occurring before June/July 2009.

23    During the course of the appeal hearing, the applicant sought, and was granted, leave to amend the notice of appeal so as to extend this complaint to include both the aggravation and original cause of the fibromyalgia and CFS.

24    The applicant’s submission is that the Tribunal had failed to carry out its review function as required by law by reason of its failure to consider an aspect of her submissions, namely, her claim that her employment in the period between July 2008 and June 2009 had contributed, to a significant degree, to the fibromyalgia and CFS or, alternatively, to an aggravation of those conditions. Counsel described this as the single issue for the Court’s determination. The applicant’s submission involved in part the contention that the Tribunal had not addressed evidence and submissions to the effect that general work related stress, and not just the stress arising from particular incidents, had aggravated the applicant’s condition.

Consideration

25    The times at which the applicant was to be taken to have sustained the conditions of fibromyalgia and CFS were to be determined by reference to s 7(4) of the SRC Act, which provides:

(4)    For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:

(a)    the employee first sought medical treatment for the disease, or aggravation; or

(b)    the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;

whichever happens first.

As can be seen, s 7(4) indicates that it applies “for the purposes of this Act”.

26    The possibility that, having regard to the definition of “disease”, s 7(4) can have application only when it has been found or accepted that the employee’s employment contributed to a significant degree to the disease or its aggravation, can be ignored. That is because it is commonly necessary to determine when a disease, or its aggravation, was sustained in order to determine, for the purposes of the definition of “disease” in s 5(1), whether the employee’s employment contributed to it.

27    The Tribunal did not make any finding as to either of the days to which s 4(a) and (b) refer. It appears that neither the evidence nor the submissions before the Tribunal was directed to this issue. This is unfortunate in view of the issue now raised by the applicant. Clearly enough, there cannot be an aggravation of a disease until the employee has sustained the disease. It is accordingly necessary to identify when the disease was sustained. As will be seen the Tribunal recognised that this was so, although it did not refer to s 7(4). The circumstance that the times the diseases were contracted were not identified appears to have had the consequence that the applicant relied on some matters for both the claimed contribution by her employment to the conditions and for the claimed subsequent aggravation of those conditions.

28    Given the way in which the applicant’s claim has been put from time to time and the complaint on the appeal that the Tribunal had failed to address a serious submission she had made, I consider it appropriate to consider, first, the submissions made by the applicant to the Tribunal and, secondly, the way in which the Tribunal addressed those submissions. It will be sufficient to have regard only to the applicant’s final submissions. Neither counsel on the appeal submitted that the Court should also have regard to the applicant’s opening submissions.

Counsel’s submissions

29    As noted earlier, the applicant’s written closing submissions identified, under the heading “The Applicant’s Case on Causation”, four alternative means by which the Tribunal could find that her employment had contributed to the fibromyalgia and CFS. Counsel developed a submission in relation to each of these alternative bases in the submissions which followed. The submission concerning the “work related emotional distress” experienced by the applicant since July 2008 to which [9.4] of the submissions referred was developed in [18]-[28] of the written submission.

30    Counsel submitted that the applicant must have been exhibiting symptoms of fibromyalgia and CFS by mid-December 2008, at the latest. That date acquired its significance retrospectively. That was because the medical evidence indicated that a diagnosis of fibromyalgia required symptoms to have been present for three months and a diagnosis of CFS required symptoms to have been present for six months. The diagnosis of those conditions in March and June 2009 respectively therefore involved implicitly an acceptance that the symptoms had been present since December 2008. Counsel attached significant to December 2008 on this basis, rather than relying on s 7(4) of the SRC Act.

31    Counsel then drew attention to evidence indicating that the applicant’s condition had deteriorated in the period between mid-July 2008 and the end of December 2008. He submitted that the stressors operating in the applicant’s life during that period were all associated with her attendance at work and her attempts to carry out her duties.

32    Counsel submitted that the deterioration in the applicant’s condition continued during the first half of 2009. Counsel noted, relying on Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463 at [60], that regard must be had to emotional distress resulting from the everyday duties which the applicant performed as well as to unacceptable behaviour such as bullying. He then contended that the evidence showed that the applicant had found the use of the UPL to be “very distressing” and that she had experienced emotional distress because of seven different kinds of behaviour by her colleagues and superiors which were said to have been of a bullying kind. Counsel referred in particular to the evidence of, and concerning, a Ms Creighton, one of the applicant’s supervisors.

33    The written submission then summarised aspects of the medical evidence (although not in a way which distinguished between the four alternative bases set out in [9]), referred to matters indicating that non-compensable causes could be excluded, and concluded:

[52]    The applicant’s case is that her condition worsened between July 2008 and November 2011 and that a substantial contributor to this decline was her attendance at work and the resulting emotional distress. Dr Kwiatek’s opinion supports the applicant – the more she came to work, the sicker she got.

...

[54]    The one constant in the applicant’s life during this crucial period of July 2008 and November 2011 is her attendance at work. The other stressors identified in the GP notes and letters of Dr Kwiatek are episodic in nature. The applicant’s presentation is not the product of a psychiatric condition, it is the product of the emotional distress she has experienced because of her work.

34    As can be seen, these concluding submissions did not distinguish between the “development” of the fibromyalgia and CFS to which counsel had referred in [9.1]-[9.3] of the written submissions, on the one hand, and the “exacerbation” to which he had referred in [9.4].

35    In his oral submissions to the Tribunal, counsel for the applicant emphasised that she had been well and working full-time between August 2005 and July 2008 and that, by December 2008, she had developed the constellation of symptoms which would be diagnosed as fibromyalgia and CFS. Counsel then referred to evidence indicating a deterioration in the applicant’s condition throughout 2009. These submissions did not distinguish between the causal contribution which the employment was said to have to the conditions themselves, on the one hand, and to their aggravation on the other. The Tribunal drew counsel’s attention to this, saying:

[H]aving regard to the way the Act is framed, I think [that] what would be particularly helpful for me to understand is the factors which the applicant says amount to the significant contribution from work to the development or onset of the condition on the one hand, and then any factors which at a later point ... the applicant says have contributed to an aggravation of the condition, and the duration of any such aggravation and whether it’s a permanent or a more short term aggravation. ...

(Emphasis added)

36    In the following interchange with counsel, the Tribunal again asked for an identification of “the precise matters that the applicant says have made a significant contribution, or which in combination amount to a significant contribution to the development of what turns into FM and CFS ...”.

37    Counsel responded by telling the Tribunal that the applicant’s case on causation was summarised in [9] of the written submission. He referred briefly to the introduction of Dialler as something which had happened in August 2007 and to the applicant’s contraction of an infection to which [9.1] of his written submission referred. Counsel described the alternative in [9.2] as “the weakest part of our causation argument”. Nevertheless, counsel made submissions regarding the diagnosis of viral pneumonia on which the alternative in [9.2] depended. He told the Tribunal that these were the matters upon which the applicant relied in respect of the period before December 2008.

38    Counsel then told the Tribunal that it was the emotional distress which the applicant experienced at work after December 2008 on which he relied. This was not consistent with the submission made in [9.4] of the written submission which identified emotional distress experienced after July 2008 as having aggravated the condition but was consistent with the submission that the fibromyalgia and CFA had developed and were present by December 2008.

39    The Tribunal member then sought to clarify counsel’s submission:

Deputy President:    [J]ust attempting to be precise with regard to time, do you say these factors, so the unplanned leave and doing the call work, that those factors apply in the period between December 08 and say March or June 2009?

Counsel:    Yes.

Deputy President:    And therefore have a causal role in the actual full presentation of the syndrome, the development of the syndrome itself?

Counsel:    Undoubtedly, yes. The diagnosis in March and June should be understood in this way, in my submission. ...

    [T]here’s a constellation of symptoms, which, on the evidence must be there by December 2008 because we need a three-month lead in time to March and a six-month into June, and it all fits. ..

40    As can be seen, despite counsel’s affirmative answers to the Tribunal member’s questions, his submissions suggested that, while the fibromyalgia and CFS had developed by December 2008, aspects of the applicant’s work since that time had also contributed.

41    The Tribunal member then sought to summarise the position of counsel:

Deputy President:    So in your case you say that she’s got FM by March 2009 and that if there are factors which on the medical evidence are likely to have contributed, or could contribute to a condition of that kind, which occur in the period up to March 2009, then it’s open to the Tribunal to make a finding that those matters, if they’re worked related, have contributed to the condition. And the same, with respect to CFS. It’s fully established by June 2009, and employment related events and circumstances in the period prior to that should potentially be regarded as contributing to the development of the condition itself, rather than an aggravation. I’m particularly focusing at the moment on that distinction because I think it’ll ultimately quite important in this matter.

Counsel:    Yes. With respect, that’s an accurate summary ...

(Emphasis added)

However, counsel then went on to submit that December 2008 was the more critical time and that flare ups or aggravations of the condition had maintained the constellation of symptoms to the point that the respective diagnoses were made in March and June 2009.

42    The Tribunal then sought further clarification from counsel:

Deputy President:    [W]ould you adopt an analysis ... that from mid 2009 onwards, to the extent that there are any ongoing work factors, which are playing a role in the condition, that conceptually those should be regarded as potential aggravating rather than contributing [factors] to the actual condition itself, they’re aggravating factors?

Counsel:    Yes.

Deputy President:    And if there – so that, yes, it’ll be at that point what you’re arguing is, yes, shorter or longer term aggravations of the condition ... with compensable consequences.

Counsel:    Yes ...

(Emphasis added)

43    In retrospect it can be seen that there was some latitude in the way counsel put the applicant’s case. Initially, counsel maintained in the oral submissions reliance upon the four alternate causal bases set out in [9] of his written submissions. The fourth of those alternatives involved exacerbation (aggravation) since July 2008. However, counsel’s oral submission appeared to be that the applicant’s condition had continued to develop up to December 2008, and that what had occurred thereafter was in the nature of aggravations. Ultimately, counsel agreed with the Tribunal that it was the period after mid-2009 which was to be considered in relation to the claim of aggravation.

The Tribunal’s reasons

44    In its reasons, the Tribunal identified at [11] a number of issues arising on the application which it addressed separately in the reasons which followed. Those which are pertinent presently are:

(b)    Whether any condition from which Ms Corby suffers is a “disease” which has been significantly contributed to by her employment;

...

(d)    Whether Ms Corby has at any time suffered from an “aggravation” of claimed condition;

(e)    Whether any such aggravation was contributed to, to a significant degree, by her employment; ...

These three issues encompassed the differing causal bases raised by counsel’s submission, and did so without relating them to a particular period or periods of the applicant’s employment.

45    The Tribunal addressed separately, and rejected, the applicant’s claims that her employment had contributed significantly to her contraction of a respiratory illness in June 2008 which had caused the development of the fibromyalgia and CFS (at [21]); that the introduction of Dialler in mid-2007 and its subsequent effects had contributed to her development of fibromyalgia and CFS (at [34]); and that the return to work “too early” after the contraction of the respiratory illness in June 2008 had contributed to that development, at [41]. This constituted a rejection of the first three of the four alternative bases identified by counsel. The Tribunal also considered, and rejected, the possibility that distress occasioned to the applicant by use of the UPL in the period between December 2008 and June 2009 had contributed to the development of the fibromyalgia and CFS (at [45]). There was no complaint on appeal about these aspects of the Tribunal’s decision.

46    The Tribunal then addressed the applicant’s alternative submission that her employment had contributed to aggravations of the fibromyalgia and CFS. It noted the ways identified by counsel by which “practices and processes at work” had caused emotional distress which was in turn said to have contributed to the fibromyalgia and CFS. The Tribunal did so by setting out in full the content of [26] of counsel’s written submissions:

26.    The applicant experienced emotional distress because of some of the practices and processes at work:

26.1.    The applicant found the process of explaining in a telephone call to the UPL line a very distressing experience.

26.2.    She also considered some of the behaviour exhibited towards her by her colleagues and superiors to be in the nature of bullying; ie:

26.2.1.    receiving two phone calls while in the ED at FMC demanding she come to work;

26.2.2.    constant phone calls to her at home when on sick leave;

26.2.3.    providing details of what was wrong; ie; ‘why can’t you move your legs?’;

26.2.4.    mocked and yelled at whilst at work, especially mocking her physical movements;

26.2.5.    denied access to the system codes and thus unable to work – there for a reduced time, leading to increase pressure to complete tasks in a timely manner;

26.2.6.    monitored toilet breaks – leading to humiliating hygiene accidents;

26.2.7.    excessive one on one meetings with team leader about work performance.

(Citation omitted)

47    In addition, the Tribunal referred again to [9.4] of the written submissions in which counsel had submitted that work related emotional distress experienced by the applicant since July 2008 had exacerbated her fibromyalgia and CFS.

48    In the next five paragraphs of the reasons, the Tribunal summarised aspects of the submission of this topic. As noted earlier, the Tribunal said that the question of whether, how, and to what extent, the applicant’s condition had been aggravated by work-related stress was primarily a medical issue, with the consequence that it was necessary for the applicant to point to at least some medical evidence in support of her claim, at [55].

49    The Tribunal also noted, at [56], that the applicant had to show more than a mere temporal correlation between her continuing attendance at work and the deterioration of her condition. That was particularly so given Dr Kwiatek’s evidence that the applicant’s condition had followed its expected course of steady deterioration, and had continued to deteriorate even after the applicant had ceased work altogether, at [56]. These reasons addressed the submission of the applicant’s counsel, put at a level of generality, that the more the applicant “came to work, the sicker she got”.

50    The Tribunal then reviewed, in some detail, the oral and written evidence of Dr Kwiatek, at [61]-[80]. It noted, at [71] , Dr Kwiatek’s opinion that “in general excessive psychological distress can exacerbate the symptoms of both the fibromyalgia and chronic fatigue syndromes, setting up a positive feedback loop”. Dr Kwiatek also noted that the applicant had “multiple stressors” in her life, most of which seemed to be unrelated to her work. In a report dated 1 November 2010, Dr Kwiatek gave his opinion, in response to a question from Comcare, as to the main factors (both employment related and non-employment related) which had contributed to the applicant’s condition by saying:

It is in my opinion that Mrs Corby’ psychological condition of psychological distress [has] been triggered by the combined factors of lack of marital support and the distressing nature of her disabling physical symptoms.

51    The Tribunal noted the opinions of Dr Kwiatek in a medico-legal report dated 29 April 2013:

The overall impression is that in recent years Ms Corby has continued to slowly deteriorate, more recently principally because of financial stresses but also the stress of taking on a Comcare claim.

...

With regards to Ms Corby’s general decline since 2008, my letter to general practitioner Dr Wade dated 18 November 2011 documents that Ms Corby had alleged that she was being subjected to workplace bullying. With regards to this, the literature contains a single, high quality, prospective study which strongly suggests that workplace bullying can trigger and by implication aggravate fibromyalgia ... and I suggest that such work-related stress is highly likely to have contributed substantially to Ms Corby’s current status, whether only occurring in late 2011 and/or at other times.

52    The Tribunal noted, in [80] that the only occasion during the currency of the applicant’s employment at the ATO on which Dr Kwiatek had recorded in his various reports an exacerbation of her condition which he attributed to work-related stress was in November 2011 where he referred to reported “workplace bullying”.

53    The Tribunal concluded its review of Dr Kwiatek’s evidence by saying:

[79]    In summary, taken as a whole, Dr Kwiatek’s evidence is to the effect that “psychosocial” stress can aggravate CFS/FM, potentially in an irreversible or permanent way, and it can also cause short term ‘flares’ of the condition, lasting for up to two weeks at most. In Ms Corby’s case, he saw no evidence of a permanent or irreversible aggravation of her condition in the period after he first saw her in mid 2009 until she left work in November 2011, although he saw and recorded short term “flares” or exacerbations of her symptoms due at least in part to stress on a number of occasions.

Thus, the Tribunal considered that Dr Kwiatek’s evidence suggested that any aggravations in the period commencing in mid-2009 and concluding with the applicant’s cessation of work in November 2011, had been short term only.

54    Given the importance which Dr Kwiatek had attached to the applicant’s reports of workplace bullying, the Tribunal then reviewed the evidence before it concerning the alleged bullying. This involved in particular an assessment of the evidence of the applicant, on the one hand, and Ms Creighton, on the other. The Tribunal identified a number of “troubling inconsistencies” in the applicant’s evidence and also between her evidence and that of others. It said that, by way of contrast, it found Ms Creighton to be “a confident, conscientious and straightforward witness, who comprehensively addressed the issues she was asked about”. That led the Tribunal to prefer the evidence of Ms Creighton over that of the applicant when their evidence was in conflict.

55    The Tribunal concluded by rejecting the applicant’s account of each of the incidents of alleged bullying saying:

In summary, I am not satisfied that Ms Corby was in fact ‘bullied’ by Ms Creighton or that any of the particular instances of inappropriate behaviour by Ms Creighton that Ms Corby has complained of actually occurred, or occurred in the way described by Ms Corby. For the reasons I have given, I prefer Ms Creighton’s evidence on these issues and I am not satisfied that Ms Creighton behaved in a bullying or otherwise untoward manner toward Ms Corby. Given the nature of his evidence on this issue, I am also not satisfied that Dr Kwiatek’s evidence supports the proposition that any flare in Ms Corby’s symptoms during the period when Ms Creighton was her team leader was attributable to work-related stress.

56    It is true that in reaching these conclusions, the Tribunal did not make any finding as to when the alleged incidents or experiences were said to have occurred. That leaves open the possibility that the Tribunal did not consider them in relation to the period or periods of aggravation for which counsel contended. However, that is a matter of no consequence because the Tribunal found that they had not occurred at all.

57    The Tribunal then addressed the other incidents and occasion which the applicant said had been stressful. This included a telephone call which she had received from the ATO when she was at the Flinders Medical Centre in June 2008. It considered that any stress arising from this telephone call could not be regarded as having caused an aggravation of the fibromyalgia and CFS because it had occurred before the applicant had contracted those conditions. It is true that the Tribunal did not consider whether this incident could have contributed to the original development of the fibromyalgia and CFS, rather than having had an aggravating effect. No doubt that was because no submission to that effect had been made on the applicant’s behalf.

58    Next the Judge referred to the applicant’s evidence that her use of the UPL and the requirement to provide “details of what was wrong” had been stressful. The Tribunal concluded, at [94] that:

There is no evidence before me as to precisely when these events occurred, what their effect was on Ms Corby on any particular occasion, whether any stress she suffered resulted in short term “flare” of her symptoms, and whether this in turn resulted in her needing to take time off work, or [to] seek any treatment.

Later, at [110], the Tribunal said:

... I am not satisfied on balance that Ms Corby’s distress caused by telephoning the UPL line when she was away from work in the period immediately preceding July 2009 resulted in a deterioration of her condition which in turn led to her reducing her working hours sooner than should would otherwise have done.

As already noted, the Tribunal had earlier rejected, at [45], the possibility that distress occasioned to the applicant by use of the UPL in the period between December 2008 and June 2009 had contributed to the development of the fibromyalgia and CFS.

59    Again, it may be accepted that the Tribunal did not consider the effects of the applicant’s use of the UPL with express reference to the period commencing in July 2008 and concluding in December 2008. This is understandable given counsel’s articulation of the applicant’s case on causation in the oral submissions. Further, and in any event, the Tribunal found expressly that there was an absence of evidence as to when those events (use of the UPL) had occurred.

60    It is also to be observed that the Tribunal did not rely only on the episodes identified by counsel in the written submissions. The Tribunal said, at [95]:

Aside from the instances relied on by [counsel], I have not identified any other occasions on which the evidence suggests that work-related stress contributed to a ‘flare’ of Ms Corby’s symptoms, or a temporary deterioration in her condition prior to it reverting to the ‘baseline’.

61    The Tribunal also noted, at [101], the difficulty of separating out any incapacity resulting from a temporary deterioration or flare-up of symptoms from the increasing incapacity which resulted from the steady deterioration of Ms Corby’s condition as a result of the disease process itself.

62    This review of the Tribunal’s reasons indicates, in my opinion, that it did address each of the various aspects of the applicant’s claim with respect to aggravation. As noted, the Tribunal had had counsel for the applicant identify at the hearing the period in which the aggravation alleged was said to have commenced. The Tribunal then addressed the submission concerning aggravation by referring expressly to the evidence on which counsel had relied and, in addition, by conducting its own independent review of the evidence generally. It is true that there were additional aspects of the evidence to which the Tribunal could have referred. It is also inevitable in a decision following a hearing lasting some seven days that some aspects of the reasons will not be mentioned in the reasons. But it is evident that the Tribunal did address each serious submission made by the applicant as to the causal effect of her employment on her condition.

63    It seems that the applicant now wishes to contend that an aggravation of her fibromyalgia and CFS occurred during the whole of the period from mid-2008 to mid-2009 but, as seen, this was not the focus of the submissions made on her behalf in the Tribunal. Counsel had modified the submission contained in [9.4] of the written submissions. In some respects, the submissions on appeal sought to return to the position for which counsel had originally contended, a position which had been articulated without apparent regard to s 7(4) of the SRC Act. As the Full Court observed in Linfox at [49], considerable care should be exercised before this Court agrees too readily that the Tribunal erred by failing to address a submission which was not in fact advanced, or advanced only indirectly.

64    As noted earlier, the applicant was granted leave at the appeal hearing to amend her grounds of appeal so as to allege that the Tribunal had failed to consider or make any finding as to whether her employment prior to June 2009 had contributed to the fibromyalgia or CFS and, in that respect, had failed to take account of events occurring prior to June/July 2009.

65    The review of counsel’s submissions and the of the Tribunal’s reasons which I have set out above indicates that these complaints cannot be sustained. The Tribunal did address the matters on which the applicant relied, and rejected them.

Conclusion

66    The appeal should be dismissed.

Associate:

Dated:    22 October 2015