A woman has been awarded compensation for a condition known as ‘somatic symptom disorder’, which was triggered by environmental factors including ‘strong odours’ in the new office where she worked. However, a tribunal affirmed Comcare’s rejection of her claims for permanent impairment and non-economic loss.
The woman experienced various symptoms in February 2009 while working in a new office in Devonport, specifically built for Comcare’s Centrelink office. Her symptoms started with headaches and nausea, which soon escalated to include shakiness, a husky voice, a running nose, watering eyes, muscle aches, exhaustion, shortness of breath, and chest pains.
Noticeable chemical and other strong odours were evident in the office, despite the lack of any apparent breaches of occupational health and safety standards. Other staff, customers, and visitors were also said to experience discomfort due to strong odours in the building.
Testing of the carpet tiles, glues, and concrete on the floor beneath had found organic vapour emissions, but the chemicals in the vapour emitted from the carpet, namely 2-ethyl-1-hexanol, were not present at significant levels in the general office air.
The woman was certified unfit for work in September 2009 but later returned to work and continued to experience respiratory symptoms the following year. She participated in return-to-work programs, working either from home or from a different office, with limited hours and limited days.
Complaints about the smell and symptoms experienced by those in the office prompted further investigations, but again these did not detect harmful levels of chemicals in the office air.
A medical assessment noted that the woman appeared to have developed ‘multiple chemical sensitivity syndrome’ (MCS), and other doctors affirmed this diagnosis.
After initially rejecting the woman’s claim for compensation, Comcare accepted liability for ‘respiratory conditions due to external agents’ in February 2011.
On medical advice, the woman adopted a strict avoidance of contact or association with chemical substances or agents believed to be causing her symptoms. This led to reduced social and occupational interactions, which had an adverse psychological impact, and by 2012 a psychologist had diagnosed a condition consistent with adjustment disorder and mixed anxiety and depression, for which Comcare also accepted liability.
By mid-2014, with the failure of all return to work programs, and given the duration and intensity of her conditions, assessments recommended that she be certified permanently unfit for work. She retired on the grounds of invalidity in December 2014.
In mid-2016, the woman claimed compensation for permanent impairment and non-economic loss, but Comcare rejected this. It affirmed this decision when a review was sought. In mid-2017, Comcare determined that it was not liable to pay compensation for incapacity or medical expenses for the previously accepted respiratory condition and secondary psychological condition.
The woman then took her case to the Administrative Appeals Tribunal of Australia.
In the tribunal
The tribunal’s task was to decide what conditions the woman had been compensated for, whether she still suffered from those conditions, if her incapacity for work was ongoing, if she still needed medical treatment and whether she was entitled to compensation for permanent impairment and non-economic loss.
After hearing the expert evidence for and against her claim and reviewing video surveillance said to cast doubt on the woman’s claims, the tribunal was not persuaded there was a commonly accepted diagnosis of MCS and criteria for it.
It found instead that the woman suffered from somatic symptom disorder (SSD), a mental ailment within the meaning of the term in the Safety, Rehabilitation and Compensation Act 1988, which therefore counted as a disease under the Act. SSD is described in the Diagnostic and Statistical Manual of Mental Disorders as a condition which ‘does not require psychological explanation but focusses on thoughts, feelings and behaviours. Patients are apprehensive about their symptoms which are judged to be out of proportion to the severity of the physical complaints, anxiety, and excessive time spent on medical treatment and health concerns’.
Further, it found that exposure to chemical odours at her workplace had contributed to the SSD to a significant degree and that she had continued to suffer its effects after the date on which Comcare had decided to stop her compensation.
However, it found that her symptoms and limitations may not be as bad as she thinks. She may still have some work capacity, especially after suitable rehabilitation and treatment. It was not persuaded that she suffers permanent impairment of 10% or greater from the compensable SSD.
The tribunal determined that Comcare was liable to continue paying compensation for the woman’s SSD but affirmed Comcare’s decisions to reject her claims for permanent impairment and non-economic loss.
The bottom line: A person may experience a genuine illness though the symptoms may not be physical.
Read the judgment: Flood and Comcare (Compensation) [2020] AATA 2152 (8 July 2020)
