Pollard and Military Rehabilitation and Compensation Commission [2009] AATA 25 (15 January 2009)

Last Updated: 19 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 25

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W 200600104

VETERANS’ APPEALS DIVISION		)
	Re		DEAN ANTHONY POLLARD

Applicant

And

MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal

Deputy President S D Hotop Dr P A Staer, Member

Date 15 January 2009

Place Perth

Decision

The Tribunal affirms the decision under review.

..........[sgd S D Hotop]........
Deputy President

CATCHWORDS

COMPENSATION - Commonwealth employees - applicant a member of Australian Army Reserves from 1994 to 1996 - applicant claimed compensation for "Ross River virus" - respondent refused claim - applicant claimed compensation for "post viral fatigue chronic syndrome" - respondent accepted liability to pay compensation to applicant for "chronic fatigue syndrome" - applicant claimed compensation for permanent impairment resulting from chronic fatigue syndrome - respondent refused claim - applicant has suffered from psychiatric disorder since 1987 - applicant's complaints of physical symptoms attributable to psychiatric condition - diagnosis of chronic fatigue syndrome not appropriate - applicant does not suffer from chronic fatigue syndrome - compensation for permanent impairment not payable to applicant in respect of chronic fatigue syndrome - decision under review affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 14(1) and s 24

Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253

REASONS FOR DECISION

15 January 2009

Deputy President S D Hotop Dr P A Staer, Member

INTRODUCTION

1. Dean Anthony Pollard (“the applicant”), who was born in November 1968, was a member of the Australian Army Reserves from April 1994 to October 1996.
2. On 23 May 1995 the applicant made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) in respect of an illness described as “Ross River virus” claimed by him to have been contracted in November 1994 when he was at Bindoon Training Area for the purpose of field exercises with the Army Reserves. On 26 September 1995, however, a determination was made that the Department of Defence was not liable under the SRC Act to pay compensation to the applicant for Ross River virus.
3. On 30 August 2001 the applicant made a claim for compensation under the SRC Act in respect of an illness described as “post viral fatigue chronic syndrome” claimed by him to have been contracted in December 1994 while he was engaged in infantry training with the Army Reserves. On 7 June 2002 a delegate of the Military Compensation and Rehabilitation Service (“MCRS”), Department of Veterans’ Affairs, made a determination accepting liability under the SRC Act to pay compensation to the applicant in respect of “chronic fatigue syndrome”, with effect from 27 February 1995 (being the earliest recorded date on which he sought medical treatment for that condition).
4. On 12 June 2002 the applicant made a claim under the SRC Act for compensation for permanent impairment resulting from his condition of chronic fatigue syndrome. It appears that no determination was made by the MCRS in respect of that claim.
5. On 10 January 2005 the applicant made a further claim under the SRC Act for compensation for permanent impairment resulting from his condition of chronic fatigue syndrome.
6. On 28 June 2005 a delegate of the Military Rehabilitation and Compensation Commission (“the respondent”) made a determination that compensation for permanent impairment was not payable to the applicant. That determination was affirmed by a “reviewable decision” made by another delegate of the respondent on 7 January 2006.
7. The applicant has applied to the Tribunal for review of the reviewable decision of 7 January 2006.

THE ISSUES AND THE TRIBUNAL’S DETERMINATION

8. The respondent has submitted that the applicant has at all material times not suffered, and does not presently suffer, from chronic fatigue syndrome. Accordingly, the issues for the Tribunal’s determination are:
   • whether the applicant has at any material time suffered, and presently suffers, from chronic fatigue syndrome; and, if so
   • whether compensation for permanent impairment resulting from that condition is payable to him under the SRC Act.
9. For the reasons which follow, the Tribunal has determined that the applicant has not at any material time suffered, and does not presently suffer, from chronic fatigue syndrome, and that, accordingly, compensation is not payable to him under the SRC Act in respect of chronic fatigue syndrome.

THE EVIDENCE

10. The evidence before the Tribunal comprised:
    • the “T Documents” (T1-T61, pp 1-194) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
    • Exhibits A1-A4 tendered by the applicant;
    • Exhibits R1-R23 tendered by the respondent;
    • the oral evidence of the applicant and of Dr John Hayes, Dr Peter McCarthy, Dr Miles Beaman, Dr Rodney Thelander, Mr Philip Hardcastle, Dr Hector Divinagracia, and Brian Pollard.

THE APPLICANT’S EVIDENCE

11. The applicant described the symptoms which he experiences, and which he claims are caused by his chronic fatigue syndrome, as follows:
    • fibromyalgia – muscle pain, joint pain;
    • tiredness;
    • headaches of varying intensity;
    • confusion, brain fog, struggling to find words;
    • fever of varying intensity;
    • flu symptoms every year;
    • chest infections.

He added that asthma, which he had in childhood, has returned, and that his immune system has been “wiped out”. He said that he has experienced these symptoms since November-December 1994.

12. He said that his major pain is joint pain, especially in the knees, and that he had been “bedridden” up until the last few years since when he has been better able to manage the pain.
13. He said that he also suffers from depression and experiences insomnia as a result of extreme pain.
14. He said that he smoked marijuana from 1998 to 2001, and that from 2003 to 2007 he misused alcohol, and from 2007 he has misused amphetamines, as a form of self-medication for his chronic fatigue syndrome. He added that his amphetamine use was now “under control”.

THE MEDICAL EVIDENCE

Evidence relating to the applicant’s physical condition

15. Relevant material contained in the T Documents includes the following:
    • an Australian Defence Force Medical Attendance and Treatment Report, dated 12 September 1994, records (inter alia) that the applicant had “aches and pains” in the joints on 11 September 1994, and headaches, and was feeling “numb” and “light-headed” (T7);
    • a clinical note, dated 7 December 1994, records (inter alia) that the applicant had been doing army drill and his feet have “played up” and that he had “pressure burns” around both elbows (T8);
    • a clinical note, dated 27 February 1995, records (inter alia) that the applicant had infected skin lesions “? chicken pox or infected mosquito bites”) (T8);
    • in a “Report of an Injury or Illness – Army” form, dated 28 February 1995, the applicant reported that he had sustained “tick bites/insect bites” in the period 28 November – 6 December 1994 while at a sappers’ camp at Bindoon Training Area, and that the bites had failed to heal and “additional inflammations” had since developed (T11);
    • a Department of Social Security (“DSS”) “Sickness Allowance Medical Certificate” form completed by Dr C Gower on 22 March 1995 in which the applicant’s condition is described as “reaction to tick bite and cellulitis → severe fatigue” and the applicant is certified as unfit for work from 27 February 1995 to 27 April 1995 (T10);
    • a DSS “Sickness Benefit Medical Certificate” form completed by Dr J O'Mahony on 25 May 1995 in which the applicant is certified as unfit for work from 25 May 1995 to 20 June 1995 by reason of a “viral infection” (T14);
    • a letter dated April 1995 in which Dr Gower stated that the applicant’s blood serology proved that he “has had a Ross River viral infection” (T12 – original emphasis), and a DSS “Sickness Allowance Medical Certificate” form, dated 14 June 1995, in which Dr Gower certified that the applicant was unfit for work from 14 June 1995 to 14 September 1995 by reason of “Ross River Virus” and that he “may have recurrences” (T15);
    • a DSS “Sickness Allowance Review” form, dated 19 July 1995, in which Dr Gower stated that she had been the applicant’s treating doctor since December 1994 and that the applicant was suffering from fatigue resulting from “Ross River fever – past” and that his “Ross River Virus” was a temporary condition and he would remain unfit for work for a further 2 months (T21).

Dr Glen Brand

16. A report of Dr Glen Brand, Consultant Physician, dated 31 January 2001, to Dr R Thelander states as follows:

“ Thank you very much for asking me to see this 32 year old man regarding fatigue and polyarthralgia.
I note his past history of Ross River viral infection in 1994 and recurrent chest infections. He takes no medications and is currently separated from 1998 and I note that he has a daughter living with his former wife who is almost 3 years old. Dean is a stone mason who has not been able to work for more than a few weeks at a time ever since the Ross River viral infection. I note that his grandfather suffered from colonic carcinoma and his mother had a myocardial infarction leading to her death in her late 40s. Dean is a smoker, but he is currently trying to quit using Nicotine patches and he drinks minimal alcohol.
Systemic enquiry revealed multiple seemingly unrelated symptoms. He has intermittent episodes of sharp anterior chest pain unrelated to exertion and separate hot burning pains between his scapulae. He sometimes suffers from mild breathlessness, again unrelated to exertion and he has a chronic cough where he produces about 2 tablespoons of translucent sputum per day, which is sometimes brown speckled. He has lost his appetite over recent years, but only has occasional indigestion. His weight has remained steady and his bowel function normal. He has daily chronic tension type headaches and he sweats profusely which is not particularly related to ambient temperature. He does not think that these are associated with a fever. He finds it difficult to get to sleep, but does not awaken once asleep. He does however awake feeing unrefreshed in the morning and his energy levels in general are very poor. In the last 2 years he has also lost interest in non-physical activities such as reading and meeting people. There has been a slight decrease in his memory and concentration and also libido to some extent. He describes his mood as frustrated, tense and prone to anger outbursts and he admitted to being teary at least once per week. He has considered suicide on several occasions but has never made any plans.
He was extremely well until he developed what he said was documented Ross River fever in about 1994. At that stage he was involved in martial arts training and was being considered for SAS service. His illness certainly sounds compatible with Ross River fever in that there were high fevers, sweats and severe polyarthritis with swelling of most of the joints of his body together with a rash. He gradually improved over several months, but has never got anywhere back to normal. His major concerns are joint pains and low energy. He finds that if he does any physical exertion then he is totally exhausted for several days and can sleep up to 15 hours at a time. This has meant that he has virtually had to give up his job as a stonemason for the last 6 years.
As to his joint pains they are less severe now than they were after the Ross River fever, but he still gets aches in both knees and his low back. They tend to be quite stiff on waking in the morning and his legs often feel like jelly.
I note that non-steroidals have been tried without any benefit. In terms of his recurrent chest infections he has had bronchodilator therapy and numerous courses of antibiotics, but these have not affected his joint pains or fatigue.
...
ASSESSMENT: ...
I think the cause of his fatigue is multifactorial. It certainly seems to have started what (sic) was almost certainly Ross River fever and I note that his IgG serology to that is still positive. This easily accounts for his symptoms for the first year or two after the infection and some patients are adamant that they continue to have polyarthralgias and fatigue for many years after Ross River fever. The history of 6 years of fatigue which is markedly exacerbated by any physical exertion together with sweats is sufficient to make a diagnosis of chronic fatigue syndrome, but I think there is also a significant element of anxiety and depression and it is very difficult to determine how much his symptoms are due to this as opposed to post viral chronic fatigue. The evidence for an effective disorder is that he has lost interest in non-physical activities and he has also developed a depressed mood which is not surprising given his loss of function.
The joint pains may be a residual effect of the Ross River virus, but I have seen these in patients with anxiety and depression possibly due to increased muscle tension which is also likely to explain his daily tension headaches. I do not think there is any underlying inflammatory arthropathy. ...
I have told Dean that we should treat the component of anxiety and depression and only time will tell what percentage of his symptoms are due to this. In the first instance I have chosen Efexor XR at 75mg daily and I wonder if you would mind increasing the dose over the next two months before I review him. Thank you again for referring him.” (T26)

17. A follow-up report of Dr Brand, dated 9 May 2001, to Dr Thelander states as follows:

“ Unfortunately Dean has not responded to the Efexor at all. He took it for 2 months and there was no change in his fatigue at all. He initially thought he was allergic to it with generalised itchiness, but he has actually had that intermittently prior to the Efexor and I am not convinced that there is a direct relationship in his case. The rash has resolved at the present time. There has been no change in his joint pains or headaches and I note that several medications have been added since I last saw him, namely Valium at 5mg 2 to 4 x daily, Ventolin, Flixotide puffer and Panadeine Forte. He feels that the Valium has helped significantly.
Investigation, history and my examination have not shown any definite cause for his symptoms. We know that he has had Ross River fever in the past evidenced by a positive IgG to Ross river virus, but it is very difficult to know how much Ross River infection is related to his current symptoms. Certainly symptoms are compatible with post viral fatigue syndrome, but it is unusual, although not impossible for these to still be present some 7 years later. It is always difficult, in my view, to know when psychological issues become responsible for the continuation of the symptoms or at least a component of them.
There is no doubt at the moment that Dean is anxious and fixated on his military training at the time of Ross River virus being the cause of his symptoms. I cannot comment on this, although it is a common observation that intense physical exercise during a viral infection can exacerbate and perhaps even prolong the symptoms. I do not know of any evidence to suggest that it could cause this degree of chronicity. My feeling is that because he has no closure on his concern over his military service and he is still pursuing evidence to support his belief then it is very difficult for any psychological component to resolve or to expect any drug therapy to be of any significant benefit. I am therefore not very surprised that Efexor did not help.
I cannot find any physical illness that requires treatment at the present time and I have therefore not arranged to see him again. A psychiatric opinion may be of benefit.
...” (T28)

Dr Miles Beaman

18. Dr Beaman, Infectious Diseases Physician and Clinical Microbiologist, has prepared various report regarding the applicant, and he also gave oral evidence.
19. A report of Dr Beaman, dated 12 December 2001, to Dr Thelander states as follows:

“ As you know, this man consulted me on 12th December 2001 for an opinion on his history of Ross River virus infection. He told me that in 1994 he was serving in the Army and this included exercises at Bindoon, Lancelin and Northam during which he received multiple tick bites. Subsequently he developed a sub-acute illness characterised by generalised aches in joints and muscles without any obvious joint swelling. This was associated with generalised lethargy and subsequently he has been subject to intermittent rashes affecting his back, legs and torso which tend to be pruritic in nature He also suffered a back injury and was discharged on medical grounds in September 1996. Six months ago he was seen by Dr Glen Brand who diagnosed chronic fatigue syndrome and treated him with Efexor which had to be ceased because he became rather agitated.
His current status is that he is unable to walk more than 1 kilometre and he usually takes several days to recover from a long walk. He is troubled by poor sleep and indifferent appetite. He tells me that prior to his illness he engaged in martial arts and had heavy training sessions every two days. He also indulged in professional soccer and boxing.
His past medical history is remarkable for asthma which has required three hospitalisations in the past. His current medications include Valium, Flixotide, Ventolin and prednisolone. He is a stonemason via training but has not been engaged in that profession for sometime. He is separated, has a three year old daughter who suffers from IgA deficiency. He is an ex-smoker and consumes minimal ethanol.
On examination he had a somewhat depressed affect but was otherwise well and there was no evidence of clubbing, cyanosis, jaundice, anaemia, lymphadenopathy, fever or synovitis. Examination of the cardiovascular, respiratory and gastrointestinal systems were within normal limits.
Unfortunately he did not attend with most of his previous investigations but I told him that his symptoms are most consistent with chronic fatigue syndrome. On a historical basis it is unlikely that this can be attributed to Ross River Virus infection, regardless of his serological results, as this has a characteristic clinical syndrome with rash and joint inflammation at onset which he did not describe. It is possible that the acute trigger for his chronic syndrome may have been a rickettsial infection and I have ordered serology to pursue this further.
I plan to review him in four weeks time when these results are to hand.
...” (Exhibit A1)

20. In a subsequent report, dated 18 March 2002, Dr Beaman stated:

“ ...
I reviewed Mr Pollard on the 13rh March with the results of the rickettsial serology ordered at his last visit. His symptomatology had not changed dramatically since his last attendance. The rickettsial serology had returned negative suggesting that these organisms were not the culprit.
The final diagnosis, therefore, remains chronic fatigue syndrome due to an unspecified pathogen but triggered by multiple tick bites, and he should be managed with psychological support, a graded exercise programme and regularisation of sleep and dietary habits.
...” (Exhibit A2)

21. On 1 May 2002 a delegate of the MCRS wrote to Dr Beaman referring to his abovementioned reports of 12 December 2001 and 18 March 2002 and requesting his opinion as to whether the applicant “fits the criteria set out in the [enclosed] policy document” regarding claims for chronic fatigue syndrome (“CFS”) adopted by the MCRS, namely:

“ 8. Criteria for diagnosis of CFS. There is a consensus between experts within the Centres for Disease Control (Atlanta) that the following criteria currently best represent a diagnosis for CFS. For diagnosis, both the following major criteria must be present:

1. New onset fatigue lasting longer than 6 months with a 50% reduction in activity, and
   2. No other medical or psychiatric conditions that could cause symptoms.

9. Additionally, at least 6 of the following minor symptoms must be present where physical signs are also apparent, or 8 minor symptoms where no physical signs are apparent. The symptoms which must begin at or after the onset of fatigue are:

1. Low grade fever (ie 37.5 to 38.6 C);
2. Sore throat;

100. Painful cervical or auxiliary (armpit) lymph node enlargement or disease;

4. Generalised muscle weakness;

f. (sic) Myalgias (muscle pains);

7. Fatigue lasting 24 hours or more after moderate exercise;
8. Headaches;
9. Migratory arthralgia (joint pain);
10. Sleep disturbance (hypersomnia or insomnia);
11. Neuropsychological complaints (one or more of photophobia, absent/depressed vision, such as visual scotoma, forgetfulness, irritability, confusion, difficulty concentrating, depression); and/or

50. Acute onset (over a few hours to a few days).

10. Where only 6 of the above symptoms are diagnosed, at least 2 of the following physical signs must be present. These physical signs must be documented by a medical practitioner twice, at least 1 month apart:
a. Low grade fever;
b. Pharynx inflammation, or pharyngitis; and/or
c. Cervical or auxiliary lymph node enlargement or disease.”
(T34 – original emphasis)

Dr Beaman replied, by letter dated 22 May 2002, as follows:

“Further to your letter of the 1 May 2002 I can confirm that it is probable that Mr Pollard’s military service contributed in a material degree to the causation, aggravation and acceleration of his disease. I confirm that he fulfils two major criteria and six minor criteria of chronic fatigue syndrome namely myalgias, fatigue, arthralgia, sleep disturbance, neuropsychological complaints and acute onset. ...” (T35 – original emphasis)

22. A report of Dr Beaman, dated 6 November 2002, to the MCRS states as follows:

“ This gentleman re-attended my rooms on 6 November 2002 in order to be reviewed in respect to your most recent correspondence of 28 October 2002.
In regard to the issue of permanent impairment for chronic fatigue syndrome, it is my professional opinion that the prognosis of an illness of the duration of Mr Pollard’s (ie from 1994) is poor and the prospect for recovery is minimal. I do not expect any major clinical improvement over the ensuing years in this gentleman.
Therefore, the conditions set out in your letter appear to have been satisfied, namely that he suffers impairment as a result of work related injury, all reasonable rehabilitative treatment has been undertaken, the impairment is permanent (ie likely to continue indefinitely) and the degree of whole person impairment has stabilised at 10% or more.
I understand that other medical advice received by you has suggested a wait and see approach with further medical review, but it is my opinion that his current status will not change.
...” (T45)

23. A report of Dr Beaman, dated 8 October 2005, to the respondent states as follows:

“ This gentleman was reviewed on 15.9.05. Essentially there has been no meaningful improvement in his medical state since the onset in 1994, although in recent years the back pains have become the most prominent component and limit his activities to virtually self caring only. He is able to do light house duties, but sleeps up to 18 hours a day and spends his waking hours resting.
I assessed his degree of permanent impairment as 70%. This is based on the history and examination obtained at that time and perusal of supplementary documents provided. The Permanent Impairment Schedule is attached.
...” (T58)

In the Permanent Impairment Schedule attached to his report Dr Beaman indicated that he had assessed the degree of the applicant’s permanent impairment resulting from chronic fatigue syndrome as 70% on the basis of Table 13.1 in the Guide to the Assessment of the Degree of Permanent Impairment (“the approved Guide”).

24. Dr Beaman’s most recent report, dated 4 April 2007, to the respondent states as follows:

“ This gentleman recently reattended my rooms to seek help in responding to his latest Departmental assessment by Dr John Hayes.
It appears that this gentleman’s case has reached a stalemate because of an overly beaurocratic (sic) approach from the Department and its Doctors. It has not been disputed in previous correspondence that Mr Pollard’s current illness is a direct result of his service in the Armed Forces. The only matter in dispute appears to be that the accepted medical diagnosis in this case, Chronic Fatigue Syndrome (CFS), does not appear in the table of the impairment instrument that the Department chooses to use (American Medical Association Guide to the evaluation of Permanent Impairment).
This appears to be a procedural ploy by the Department and Dr Hayes to avoid making a decision in this case. It is an accepted medical fact, which is well documented in the international literature (see British Medical Journal 2006: 333; 575-80), that CFS is a bona fide medical diagnosis and that it may cause permanent disability. In fact, the Specialist Society that Dr Hayes and myself are both members of (the Royal Australasian Society of Physicians) not only accepts this diagnostic category as bona fide but has recently produced guidelines on its appropriate management (Medical Journal of Australia 2002: vol 176: Supplement 8). I also note that the civilian Medical Insurance Industry not only accepts the existence of this medical entity but has for many years made financial settlements for long-term disability due to it (I have been involved in many similar cases).
I would suggest that the Department change its impairment instrument to one that is in accord with the medical literature and the Insurance Industry of Australia and settle this interminable case to give some long term certainty to this unfortunate gentleman.” (Exhibit A3)

25. In his oral evidence Dr Beaman acknowledged that chronic fatigue syndrome does not fit into the approved Guide and he added that, in arriving at his assessment of the degree of the applicant’s permanent impairment, his use of Table 13.1 in the approved Guide involved “trying to fit a square peg into a round hole”. He described the approved Guide as “a flawed instrument”.

Dr John Hayes

26. Dr Hayes, Consultant Rheumatologist, has prepared three reports regarding the applicant, and he also gave oral evidence.
27. Dr Hayes’ report, dated 19 January 2006, to the respondent, which was based on his assessment of the applicant on 12 January 2006, states as follows:

“ ...
HISTORY:
Occupation/Work Duties:
Mr Pollard was born in the United Kingdom and came to Australia in 1983. He undertook an apprenticeship as a stonemason in December 1983 for five years. He then returned to the United Kingdom before coming back to Australia in September 1993. He joined the Australian Army Reserve in April 1994.
Mechanism of Alleged Illness/Symptom Onset/Sequence of Events:
Mr Pollard was participating in an Army exercise during which he was camping at Bindoon, between 28 November 1994 – 6 December 1994. He described how he suffered several insect bites to his body over this period and how he felt generally weak, cold and clammy. He was unable to continue with the Army exercise. He described multiple sores all over his body as well as generalised joint and muscle pain.
Initial/Early Treatment Received:
Mr Pollard was initially seen by military doctors at the RAP. He also attended Dr Corinne Gower, General Practitioner of Victoria Park, on 7 December 1994. He was allegedly told he had “Tick bite fever’. Dr Gower performed blood tests which revealed past infection with Ross River Virus.
Subsequent Progress/Specialist Management:
Mr Pollard described how he was unable to undertake any physical activity as he rapidly became short of breath, suffered generalised fatigue and weakness in both legs. As a result he was unable to continue in the Army.
He remained out of the workforce, but in 1997 he attempted to return to stonemasonry work with his father, however he had to cease this type of work after approximately six months. He has not worked at all since 1998.
In November 2002 he was admitted to Bentley Hospital as an involuntary psychiatric patient and later transferred to the Swan Clinic for assessment over a three-week period. As a result, he continues under the care of Dr Neil Molin, Psychiatrist, whom he sees on a regular basis. He continues to take Risperadone, 2mg per day, and Amitriptyline, 125mg per day.
Mr Pollard was also referred to Dr Glen Brand, General Physician, in February 2001. Prior to this Mr Pollard had been admitted to Kalamunda Hospital on several occasions with ‘chest infections’. Dr Brand felt this was due to chronic bronchitis secondary to cigarette smoking. Dr Brand also felt that Mr Pollard’s general fatigue and widespread symptoms were due to ‘Chronic Fatigue Syndrome’.
Mr Pollard was also assessed by Dr Philip Hardcastle, Orthopaedic Surgeon, Dr John Pearce, Occupational Physician, Dr Anne Durack of Health Services Australia, and Dr Miles Beaman, Infectious Diseases Physician and Clinical Microbiologist.
Current Status:
Mr Pollard’s ongoing symptoms are as follows:

1. Chronic fatigue: As a result of this he does not wake up until 10.00am and on occasions he may sleep for 18 hours per day.
2. Widespread muscle and joint pain: These symptoms are felt especially in the knees, ankles and lower back and as a result his walking is limited.
3. Recurrent sore throat and painful glands in the neck: In addition he is prone to periodic chest infections. The latter is probably the result of chronic bronchitis from smoking.
4. Headaches: These are mainly frontal headaches and occur four days per week.
5. Impairment of short-term memory and concentration: As a result he finds it difficult to read newspapers and watch television. He often feels ‘dizzy’ or unsteady on his feet if he gets up too early.

Mr Pollard’s symptoms are generally worse in wet weather or when the weather is hot or humid. Other associated symptoms include sore eyes and occasionally this may trigger aggravation of his physical symptoms.
Present Work Status:
Mr Pollard last performed stonemasonry work on a part-time basis with his father in 1997. He has not worked since.
He did attempt a Vocational Rehabilitation Program through the Commonwealth Rehabilitation Service in 2003, however this was not successful.
Present activities:
Mr Pollard is able to drive a vehicle.
He will occasionally cook, vacuum, and wash and hang out the clothes.
He does not garden.
He is not involved in any sporting activities due to his marked symptoms of chronic fatigue.
Present Treatment:
Mr Pollard continues to attend Dr Molin, Consultant Psychiatrist on a four-monthly basis.
He is taking Risperadone, 2mg per day and Amitriptyline, 125mg per day, prescribed by Dr Molin.
His other medications include Panadeine Forte, up to four tablets per day and Ducene, 5mg as required.
Past Medical History:
In 1999 Mr Pollard suffered indigestion and underwent endoscopy, which was allegedly normal.
Between 1998-2002 he was admitted to Kalamunda Hospital on three occasions with ‘chest infections’. Dr Brand regarded Mr Pollard as having chronic bronchitis secondary to cigarette smoking. I note Mr Pollard also uses Ventolin and Seretide inhalers.
Personal/Social History:
Mr Pollard was previously engaged, however the relationship broke up in 1999. He has a 7-year old child as a result of this de facto relationship. The mother of the child has custody.
Mr Pollard is paying off his home and has a boarder to supplement his income.
He smokes 25 cigarettes per day and regularly drinks at a hotel on most days. He finds that drinking alcohol (3-5 pints of beer per day) assists to ease his physical symptoms.
PHYSICAL EXAMINATION:
Mr Pollard is a 37-year old man who stood at 182cm in height with a weight of 92kg.
There was extensive tattooing on both arms and the anterior chest.
He demonstrated features of illness behaviour while undressing, with deep sighing and groaning.
The following areas were examined as they relate to my field of expertise.
Upper Limbs/Shoulder Girdles:
The shoulders, elbows, wrists and small joints of the hands were normal.
Muscle power was normal in all upper limb muscle groups.
Likewise, sensation was normal.
Back/Spine:
Examination of the lumbosacral spine revealed that forward flexion was limited to mid-shin level and was performed slowly with complaint of low back pain. The range of lumbar flexion over a 15cm segment however measured 8cm (normal).
Mr Pollard demonstrated loss of rhythm on standing upright from the forward-flexed position.
Lateral flexion to either side was demonstrated to 30˚ and was performed freely without pain. Likewise, rotation to either side measured 30˚, but did produce moderate thoracolumbar pain.
Palpation of the lumbosacral spine did not reveal any localised tenderness.
Mr Pollard demonstrated significant features of illness behaviour on examination of the lumbosacral spine.
Lower Limbs:
The hips and knees all demonstrated a full range of movement. Passive movement however induced diffuse pelvic pain. Likewise, Mr Pollard complained of generalised stiffness.
When examined in the supine position, straight leg raising was demonstrated to 65˚ bilaterally without nerve tension signs. The hamstring muscles were tight.
Lower limb muscle power, sensation and reflexes were normal.
The knee, ankle and feet likewise were normal.
General:
Auscultation of the chest revealed scattered rales consistent with chronic bronchitis from smoking.
INVESTIGATIONS:
Serology for Hepatitis B and C was negative for both.
Ross River Virus serology revealed evidence of a past infection.
Barmah Forest Virus serology was negative.
Tests for Rickettsia infections were allegedly negative.
SUMMARY AND ASSESSMENT:
Mr Pollard is a 37-year old man who presents with symptoms consistent with a diagnosis of Post-Infective Chronic Fatigue Syndrome. This was complicated by the development of depression in November 2002 requiring hospitalisation and ongoing psychiatric treatment.
The serology for Ross River Virus indicated that Mr Pollard had had a past infection.
The multiple skin lesions suffered by Mr Pollard at the onset of his illness however are not at all suggestive of Ross River Virus infection.
In response to the specific questions in your letter dated 7 December 2006:
...
Accepted condition(s): Chronic Fatigue Syndrome

1. Does the client suffer an impairment as the result of his compensable condition?

Mr Pollard has suffered an impairment as a result of his compensable condition, however, it is not rateable according to the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th and 5th editions.
I refer you to Section 18.3(b) of the 5th edition on p 571. Individuals with ambiguous or controversial pain syndromes such as fibromyalgia and chronic fatigue syndrome cannot be assessed under the terms of the AMA Guides.
Likewise, Mr Pollard does not qualify for impairment under the DVA (sic) Guide to the Assessment of the Degree of Permanent Impairment. There is thus no satisfactory method for assessing impairment in patients with chronic fatigue syndrome or fibromyalgia.

2. Is the impairment permanent (likely to continue indefinitely)? If the impairment is not permanent, please comment.

Mr Pollard has been symptomatic for 11 years and shows no sign of improvement. His condition is thus presumed to be permanent and his impairment is likewise permanent.

3. Does the client suffer other related impairments, but which did not result from his compensable condition? If so, please comment.

Mr Pollard has developed secondary depression and this required hospitalisation in 2002. He continues on long-term psychiatric treatment. It is probable that his depression has developed as a complication of his chronic fatigue syndrome.
For assessment regarding psychiatric impairments, I would refer you to Mr Pollard’s psychiatrist, Dr Neil Molin of the Swan Mental Health Clinic.
Mr Pollard also has chronic bronchitis from cigarette smoking, however this is not a complication of his chronic fatigue syndrome.

4. If the impairment is permanent, please complete the details in the appropriate table below. Please complete only one of the following tables (4a, 4b or 4c).

4a. Stable permanent impairment (not expected to change in the foreseeable future)
Mr Pollard has a permanent impairment associated with his chronic fatigue syndrome. This however is not rateable under the AMA Guides or the DVA (sic) Guide Tables.

5. Does the client have any immediate or intermediate needs regarding his compensable condition which are not being met? (eg home attendance care, household services, aids and appliances, pain management program, physiotherapy, etc). If so, please list the needs.

Mr Pollard does not require home attendant care, household services, aids or appliances, nor will he be assisted by physiotherapy or pain management programs.
He needs to continue with regular visits to his psychiatrist and will continue on psychiatric medication.

6. Do you consider that the percentage whole person impairment listed above may be reduced by further medical or rehabilitative treatment? If so, please state what treatment you advise and what reduction in whole person impairment could reasonably be expected as a result of that treatment.

I do not expect that Mr Pollard’s level of impairment will change with further medical or rehabilitative treatment.

7. What date did the loss become permanent and static? (If, at question 4, you have shown the injury as being likely to deteriorate or likely to improve, show only the date the injury became permanent.)

Mr Pollard’s physical symptoms began in December 1994 and I consider his condition became permanent and static as of 1 January 1997.

8. Is the client totally incapacitated for work or likely to become so because of this condition?

Mr Pollard is totally incapacitated for work and is likely to remain so indefinitely.
...
In conclusion, there is no satisfactory method for assessing permanent impairment in patients with fibromyalgia or chronic fatigue syndrome. This is stated categorically in the AMA Guides 5th Edition, Section 18.3(b) on p 571.
...” (T61 – original emphasis)

28. A report of Dr Hayes, dated 25 July 2006, to the respondent’s solicitors states as follows:

“ Thank you for your correspondence dated 28 June 2006 regarding Mr Pollard. You have asked me to comment on the following:

1. We have been asked by the Tribunal to request that, if possible, you expand on your reasoning as to why you consider that there are no tables of the American Medical Association Guide to the Evaluation of Permanent Impairment or the Comcare Guide to the Assessment of the Degree of Permanent Impairment that are appropriate for assessment of permanent impairment relating to the applicant’s compensable condition of “chronic fatigue syndrome” condition (sic).

Mr Pollard has been diagnosed with chronic fatigue syndrome with a secondary depressive illness. The American Medical Association Guides to the Evaluation of Permanent Impairment, 4th and 5th Editions, state categorically that patients with ambiguous or controversial pain syndromes are considered unrateable according to the Guides.
Furthermore, I attended the WorkCover workshop on the AMA Guides, 5th Edition, conducted in May 2005 by Professor Ranavaya. Professor Ranavaya strongly emphasised that conditions such as chronic fatigue syndrome, fibromyalgia syndrome and myofascial pain syndrome are all considered unrateable according to the Guides, 4th and 5th Editions. I have enclosed extracts from Pages 571 and 573 of the AMA Guides, 5th Edition, in reference to this (Section 18.3B and Section 18.3D).

2. Would you please also provide your comment in relation to Dr Beaman’s assessment.

I note that Mr Pollard has been assessed as having a 70% whole person impairment under Table 13.1 of the DVA (sic) Guides. Table 13.1 is for assessment of people with ‘intermittent conditions’ and is used in the assessment of disorders of the hemopoletic system, such as anaemia, polycythaemia, leukocyte and platelet disorders and intermittent disorders such as asthma, migraine, tension headache, epilepsy etc. Mr Pollard does not have any of these conditions and his chronic fatigue syndrome is not an ‘intermittent condition’. In view of this, his chronic fatigue syndrome is not rateable under DVA (sic) Table 13.1
Mr Pollard does suffer from a secondary depressive illness and his impairment for depression can be assessed by a psychiatrist. Furthermore, there is no doubt that his chronic fatigue syndrome and secondary depression symptoms are closely interrelated.
Mr Pollard continues to be totally incapacitated for work and is likely to remain so indefinitely.
...” (Exhibit R1)

29. Dr Hayes’ final report, dated 25 July 2007, to the respondent’s solicitors states as follows:

“ Thank you for your correspondence dated 5 July 2007 regarding Mr Pollard.
I have studied in detail the three volumes of papers relating to his medical history and multiple medical reports.
I have the following comments to make.

1. In May 1987 Mr Pollard was diagnosed with acute schizophrenia and admitted to Heathcote Hospital for treatment. He was subsequently followed up at the Bentley Psychiatric Clinic in 1987/1988.
2. When he joined the Australian Army in April 1994 he denied having any prior psychiatric history.
3. In 2002 he was diagnosed by the late Dr Mark Rooney, Psychiatrist, as having paranoid schizophrenia.
4. In May 2003, Dr C Graham, Psychiatrist, at the Swan Mental Health Clinic, felt that Mr Pollard had suffered from a ‘chronic low grade paranoid psychosis for many years’.
5. In February 2007, Dr Peter McCarthy, Consultant Psychiatrist, felt that Mr Pollard had a ‘pre-existing chronic psychotic condition which accounts for his longstanding physical and psychiatric symptoms’.

My answers to your specific questions are as follows:

1. Are you still of the opinion that the applicant suffers from ‘chronic fatigue syndrome’ that is causally related to his military employment? Please outline the reasoning for your opinion with reference to the evidence and information that you consider to be relevant.

According to the Royal Australasian College of Physicians (RACP) guidelines for the diagnosis of chronic fatigue syndrome, that diagnosis can only be made in the absence of underlying physical or mental diseases which could explain his symptoms. It is evident to me that Mr Pollard has suffered from a psychiatric condition since 1987 and this would more than likely explain his ongoing symptoms of chronic fatigue syndrome.

2. If you do not believe the applicant suffers from ‘chronic fatigue syndrome’ that is causally related to his military employment, please provide your opinion as to what condition the applicant does suffer from and whether it wholly or partially accounts for the applicant’s symptoms, incapacity for employment and requirement for medical treatment. Please outline the reasoning for your opinion with reference to the evidence and information that you consider to be relevant.

In my opinion, this man’s symptoms of chronic fatigue syndrome are thus not causally related to his military employment, but rather are related to his chronic psychiatric condition. In my opinion this would wholly explain this man’s ongoing fatigue symptoms as well as his incapacity for employment and requirement for medical treatment.
My reasoning for this opinion is that Mr Pollard has suffered from a chronic mental illness for many years and this could well explain his ongoing symptoms of chronic fatigue syndrome. The diagnosis of true chronic fatigue syndrome can only be made in the absence of other medical conditions which may produce this type of symptomatology.
...” (Exhibit R2)

The Royal Australasian College of Physicians clinical practice guidelines in respect of chronic fatigue syndrome (2002), referred to in Dr Hayes’ abovementioned report, relevantly state:

“ ...
Clinical Overview
FATIGUE CAN BE DEFINED as a pervasive sense of tiredness or lack of energy that is not related exclusively to exertion. It is a common complaint in the community and is usually transitory. If fatigue is prolonged beyond six months, is disabling, and is accompanied by other characteristic constitutional and neuropsychiatric symptoms, then a diagnosis of chronic fatigue syndrome (CFS) should be considered.
What is CFS?
‘CFS’ is a descriptive term used to define a recognisable pattern of symptoms that cannot be attributed to any alternative condition. The symptoms are currently believed to be the result of disturbed brain function, but the underlying pathophysiology is not known. Therefore, CFS cannot be defined as a specific ‘disease’ entity at present. Indeed, there is growing evidence that the disorder is heterogeneous, and it will probably prove to have no single or simple aetiology.
It is important for practitioners to appreciate the distinction between disease, illness and disability.
Diseases are defined and categorised according to our contemporary understanding of causal mechanisms and pathophysiology. As new knowledge emerges, disease definitions and terminology change. Illness, by contrast, is the subjective experience of suffering and, as such, can only be defined by reference to the sick person. Disability is the functional impairment – physical, psychological and social – caused by disease and illness.
Even though an underlying disease process cannot presently be defined in patients with CFS, the suffering and disability caused by the illness can be very considerable – in many cases comparable to that seen in multiple sclerosis and rheumatoid arthritis. It is therefore important that doctors acknowledge the reality and seriousness of the suffering and disability experienced by people with CFS. Our goal as physicians is not only to identify and treat disease, but also to help relieve suffering and disability, whatever the cause.
Diagnosis
CFS is diagnosed on clinical grounds. It relies on the presence of characteristic symptoms (see Box B), and the exclusion of alternative medical and psychiatric diagnoses. In individual patients, the symptoms of CFS may overlap with other common syndromes such as fibromyalgia and irritable-bowel syndrome, and the primary diagnosis will depend on which symptoms are the most dominant and disabling. People with CFS often have concurrent depression, and this need not exclude the diagnosis.
As similar symptoms can also occur in a range of other disorders (eg, thyroid disease, anaemia, major depression), the first priority in clinical assessment is to exclude alternative explanations. This can be achieved by careful history-taking, physical examination and a restricted set of laboratory investigations.
Clinical history
It is important to take careful note of the character of the fatigue. In people with CFS, fatigue is typically exacerbated by relatively minor physical or mental activity, and is associated with a protracted recovery period lasting hours or days. The fatigue should be differentiated specifically from weakness (neuromuscular disease), dyspnoea and effort intolerance (cardiac or respiratory disease), somnolence (primary sleep disorders), and loss of motivation and pleasure (major depression).
Additional clues which could point to alternative diagnoses include unexplained weight loss (occult infection, malignancy, thyrotoxicosis, Crohn’s disease); dry skin and cold intolerance (hypothyroidism); snoring and daytime sleepiness (sleep apnoea); risk factors for transmission of blood-borne infections (HIV, hepatitis C); prior episodes of depression or anxiety (vulnerability to psychiatric disorder); arthralgia or rash (connective tissue disease); and prescribed or illicit drug misuse. A history of altered bowel habit may indicate an underlying gastrointestinal infection (eg, giardiasis), coeliac disease, thyroid disease, or inflammatory bowel disease.
Examination
Characteristically, there are no abnormal physical findings in people with CFS. The physical examination and mental state examination are therefore primarily directed towards excluding other disorders. A careful assessment for neurological deficits or signs of anaemia, cardiac failure, respiratory disease, hidden infection, connective tissue disease or tumour should be conducted. The presence of persistent fever, lymphadenopathy, or enlargement of the liver or spleen are not features of CFS and always warrant further investigation.
The behavioural signs of psychiatric disorder should also be sought, including psychomotor slowing (major depression), physiological arousal (anxiety states and panic disorder) and cognitive deficits (delirium or dementia).
...

B: Diagnostic criteria for chronic fatigue syndrome 1. Fatigue Clinically evaluated, unexplained, persistent or relapsing fatigue persistent for six months or more, that: is of new or definite onset; is not the result of ongoing exertion; is not substantially alleviated by rest; results in substantial reduction in previous levels of occupational, educational, social or personal activities: and 2. Other symptoms Four or more of the following symptoms that are concurrent, persistent for six months or more and which did not predate the fatigue: Impaired short term memory or concentration Sore throat Tender cervical or axillary lymph nodes Muscle pain Multi-joint pain without arthritis Headaches of a new type, pattern, or severity Unrefreshing sleep Post-exertional malaise lasting more than 24 hours

...” (Exhibit R3 – original emphasis)

Dr Rodney Thelander

30. Dr Thelander, General Practitioner, said that he commenced to treat the applicant for chronic fatigue syndrome symptoms in 1999, and he subsequently issued various medical certificates certifying the applicant as unfit for work by reason of those symptoms. He confirmed that he had written a letter dated 19 November 2002, on behalf of the applicant, to the MCRS as follows:

“ I am writing on behalf of Mr Pollard who has been to see me recently following a letter from Ms Jocelyn Cablao, Military Compensation and Rehabilitation Service, Melbourne, on 28th October 2002. In this letter, Ms Cablao informs Mr Pollard that as a result of the medical assessment of Dr J L Pearce dated 17th October 2002, a final payout for permanent impairment due to this Chronic Fatigue Syndrome has been deferred until 15th October 2004. The reason for this deferment is due to Dr Pearce’s assessment that Mr Pollard’s Chronic Fatigue Syndrome has not reached its final stage of recovery. Dr Pearce also recommended referral to a General Physician and a Psychiatrist for aggressive appropriate management followed by a review and reassessment on the aforementioned date of 15th October 2004.
Mr Pollard was quite angry and upset at this assessment when he first consulted me in regard to the report on 1st November 2002.
I subsequently saw Mr Pollard on 4th and 11th November 2002, and during these visits he related to me the course of events, as he sees it, leading up to the present state of his health and associated compensation.
He informed me that during his military service he sustained a back injury in September 1994, and then contracted Ross River Virus between September and December 1994, due to multiple tick bites. The Ross River Virus infection subsequently resulted in his developing Chronic Fatigue Syndrome.
According to his recollection, he was discharged medically unfit on 22nd October 1996, and as a result of his injury and disease his future job prospects were poor.
He also complained that he had never received compensation from the Army for either his back injury or his Ross River Virus and subsequent Chronic Fatigue Syndrome. He went on to describe how the back injury had caused chronic low back pain and that this has prevented him from getting a job subsequently.
He said that in October 2002, he received his first payments for incapacity due to his Chronic Fatigue Syndrome. When he received the letter from Ms Jocelyn Cablao on 28th October 2002, which stated that any final payout would be delayed until 15th October 2004, he became very upset as he felt that his Chronic Fatigue Syndrome had finally been recognised as a service related disability.
I asked Mr Pollard what he wanted the Department of Veterans’ Affairs to do for him. He stated to me that he wanted the Department to make a final assessment of his disability due to the Chronic Fatigue Syndrome and his back injury and to make a compensation payment to him for these two service related conditions.
He wanted me to write a report to the Department of Veterans’ Affairs to put these facts across in the hope that his views will be heard and considered. In particular, he takes offence at the suggestion that he needs to see a Psychiatrist. He feels that this is an attempt by the Department of Veterans’ Affairs to deny responsibility for his injury and illness in order to avoid paying him compensation.
In view of this situation, I would like to make the suggestion that a meeting be arranged with Mr Pollard and an advocate be appointed to try to resolve the impasse which seems to have developed between Mr Pollard and the Department of Veterans’ Affairs.
...” (T46)

Dr Thelander said that he had not seen the applicant recently. He said that, when he was treating the applicant, he was aware that the applicant was using alcohol and amphetamines, and that he found it difficult to treat his symptoms.

Mr Philip Hardcastle

31. Mr Hardcastle, Consultant Orthopaedic Surgeon, assessed the applicant on 22 February 2002 at the request of the MCRS and he prepared a report dated 26 February 2002 (T33) in relation to that examination. In that report Mr Hardcastle noted that the applicant complained primarily of neck pain, low back pain and bilateral knee pain but that, following a physical examination of the applicant and a consideration of x-ray reports, he found no evidence of any degeneration in any of those regions and concluded that he was unable to make a specific diagnosis of the applicant’s condition.

Dr Anne Durack

32. Dr Durack, Medical Adviser, Health Services Australia, assessed the applicant on 5 April 2005 at the request of the MCRS and provided a report dated 27 April 2005. In that report Dr Durack noted that the purpose of her examination was to assess the applicant’s permanent impairment resulting from chronic fatigue syndrome, and continued:

“ ...
PRESENTING COMPLAINTS/DIAGNOSES:

• Fatigue and widespread joint and muscle pain

EMPLOYMENT AND EDUCATION HISTORY:
Mr Pollard completed school to Year 10. He was involved in many sports including soccer, martial arts and boxing. He undertook an apprenticeship as a stonemason (family business) which he completed over a period of 4 years. In March 1994 at the age of 25 he joined the Army Reserves and became a ‘full-time volunteer’ as a rifleman with 5 Training Group. He enjoyed the work which involved a routine of 2 weeks on exercise, 1 week at home and then a further 2 weeks away. He worked at Bindoon, Northam and Lancelin. In October 1996 he was discharged at his own request, although he describes his discharge as being ‘on medical grounds’ with personal issues and chronic ill-health.
Following his discharge he attempted to return to work in January 1997 as a stonemason in his father’s business. He was able to work for only 3 months before becoming ‘very sick’. He says the pattern of recurring inability to work has persisted since that time. He has done no paid work since 2000. He attempted a vocational rehabilitation programme co-ordinated through the Commonwealth Rehabilitation Service in 2003 with graduated return to work as a stonemason but the rehabilitation plan was closed since he was not able to persist with work.
SOCIAL HISTORY:
Mr Pollard is separated from his de facto partner. He has a 6 year old daughter living in Tasmania. He lives alone in his own home (with a mortgage) and his income consists of a part-Disability Support Pension and disability payments from MCRS (since 2002). He has 2 small dogs that he cannot take for walks because of his physical limitations.
He smokes 20-25 cigarettes a day and drinks alcohol (which he says assists with pain relief) most days at the pub to the level of about 5 pints of beer. He drinks coffee 4-6 times each day.
He will sleep up to 18 hours at a stretch usually rising in the early afternoon and going to bed by midnight. He undertakes no regular physical activity.
He believes that his de facto relationship broke down because of his continuing illness and inability to work. His partner left him in November 1999 because of his ‘negative outlook’.
He describes a typical week as consisting of 3 days when he is ‘really bad’, mostly confined to bed and in constant pain. A further 2 days he is in a lot of pain but can function with the use of Panadeine Forte, and for 2 days of each week he is ‘reasonably mobile’.
PAST MEDICAL HISTORY:

• Childhood asthma (no problems for years prior to enlistment)
• Haemoptysis/Pleurisy/Pneumonia 1991
• Fracture of both forearms (accidents) in childhood
• Back injury September 1994 (persistent intermittent low back pain)

FAMILY HISTORY:
His mother and maternal grandfather had heart attacks in their 40s; his father had a heart attack in his early 50s. His father and grandmother have arthritis.
HISTORY OF COMPENSIBLE CONDITION:
Mr Pollard was well until about September 1994 when he remembers suffering from recurrent ‘sniffles’.
He was on exercise from 28 November to 6 December 1994, camping at Bindoon when he first became seriously unwell.
While on patrol he recalls the sensation of being struck on the inner side of his left leg and within minutes became clammy and cold with blurred vision. All through the ensuing night he was cold, shivering, dizzy, clammy and recalls shaking until morning.
He attempted to rejoin the patrol the next day but after walking only a few metres was not able to continue. He was sent to the aid post at Bindoon. He broke out in sores over his back, neck, legs and arms. He was able to ‘carry on’ for the one remaining day of the exercise and recalls seeing a civilian doctor on 7 December 1994.
From the next day he was not able to get out of bed. His hands were swollen and ‘seized up’, he was feverish with heavy sweats, nightmares and hallucinations. There was marked weight loss and he was virtually bedridden for about 6 weeks, requiring his father’s help for self-care. He recalls painful swallowing, swollen painful glands and being ‘sore all over’ with multiple septic tick bites.
On 27 February 1995 he had a number of blood tests. The reports were not available to me but he reports confirmation of infection with Ross River Virus and was given a diagnosis of possible tick bite fever. He was treated with anti-inflammatories which were later discontinued because of cardiac arrhythmia and indigestion.
He became angry, confused, disillusioned and frustrated when his symptoms did not settle.
He attempted to attend training on Tuesday nights and went on one further exercise as assistant to the Commanding Officer but was unable to cope with the physical demands. He had breathing difficulties and loin pain. In October 1996 he left the Reserves at his own request.
Following discharge he was housebound for weeks with anorexia, joint and muscle pains, fevers, night sweats and nightmares.
He assisted his father in the stonemason business for a short time in early 1997 but was unable to continue. He has had recurrent ‘flu’ and chest infections, with 3 admissions to Kalamunda Hospital for breathing difficulties.
On (sic) November 2002 he was admitted to Bentley Hospital as an involuntary psychiatric admission and transferred to Swan Clinic for assessment over 3 weeks. The admission was triggered by ‘allegedly threatening behaviour’, he describes himself as being delusional, depressed and anxious. He was commenced on psychotropic medication and continues to be reviewed by Dr Neil Molin (Psychiatrist) every 2-3 months.
He has been reviewed by Dr Beaman, an Immunologist, and Dr Brand, a General Physician.
CURRENT TREATMENT:

• Respiradone 2mg/day
• Amitriptyline
• Panadeine Forte up to 4 times/day
• Ventolin/Spirival/Seretide
• Hot Packs

CURRENT STATUS:

• Constant fatigue, sleeping up to 18 hours a day, waking unrefreshed. Sleep disturbed by pain, heavy night sweats and nightmares.
• Constant pain in back, knees, ankles, feet, shoulders, neck muscles. Pain rated as baseline of 4/10, increasing to 8-9/10 ‘in bouts’.
• Pain exacerbated by light activity such as cleaning teeth, washing up. Unable to mow lawns, difficulty with bending and lifting. Low back pain exacerbated by lifting 4kg or more.
• Sitting tolerance about 15 minutes, standing 10 minutes, driving 10-15 minutes with discomfort.
• Blurred vision/difficulty concentrating and focussing. Unable to concentrate on TV programmes or reading.
• ‘Patchy memory’; uses lists to assist
• Some suicidal ideation when pain is severe; ‘can’t come to terms with always being sick’.
• Slowly deteriorating over time.

CLINICAL FINDINGS:
Mr Pollard presents as an overweight man with a minor limp who was restless during interview, shifting his position in his chair after about 10 minutes. He was lucid and cooperative with no obvious thought disorder.
His height of 176cm and weight 102kg gives a body mass index of 33.0. He had multiple tattoos and pock-marked skin with small scars over his neck, shoulders, trunk and upper arms. He was sweating slightly. His blood pressure was recorded as 140/100, pulse 96 and regular. There were a few inspiratory moist sounds at both lung bases. His abdomen was lax with no palpable liver or spleen and there was no lymphadenopathy.
There was no restriction to (sic) movements of his neck and limb joints, although he described discomfort at extremes and there was pain on palpation of muscles of his neck, shoulders, upper arms and thighs. He could heel-toe walk with difficulty and was unsteady.
Flexion of his back was restricted to fingertips to mid-shin with normal lateral flexion and rotation. On measurement flexion was to approximately 70˚ (normal 90˚) and extension to about 30˚ (normal 50˚) with total movement in the flexion/extension plane of about 100˚ (normal 130˚). He was uncomfortable lying flat on the examination couch and held his lower back ‘for support’. Straight leg raising was limited to about 30˚ due to muscle and back pain.
He was observed to climb stairs with difficulty holding the rail and ascending with both feet to each step; he climbed 7 steps (staircase at 45 degrees) and declined to climb further. He descended with similar difficulty. He was accompanied on a walk of about 250m during which time his limp was observed to have increased and he stated that he ‘wouldn’t want to go further without a rest’ due to increased pain in his legs and back. A mild upward grade of 15 degrees increased his difficulty and discomfort.
ASSESSMENT:
Mr Pollard is a 36 year old man who is unable to work due to chronic fatigue and widespread muscle and joint pain.
He has had continuous fluctuating symptoms for about 10 years. He has been reviewed by an Immunologist and General Physician and has been diagnosed with Chronic Fatigue Syndrome secondary to multiple tick bites and Ross River Virus infection.
He has had specialist Psychiatric supervision since November 2002 and review every 2-3 months in ongoing.
He was assessed by Dr John Pearce, Occupational Physician, for MCRS on 5 January 2002 at which time Dr Pearce expressed his opinion that the condition could not yet be considered stabilised and recommended psychiatric referral and review in about two years’ time. Both these requirements have now been met and Mr Pollard has persisting symptoms.
Mr Pollard has significant pain, fatigue and problems with endurance. He has no clinically apparent restriction in movements of his limbs. There is restriction in movement of his back. He can rise to a standing position and walk, but has difficulty with grades and steps.
There are no appropriate tables under the Guide to the Assessment of the Degree of Permanent Impairment under which his pain and fatigue can be assessed.
I presume that the psychiatric component of this condition has been assessed by an independent psychiatrist.
Under Tables 9.1 and 9.4 he has no Whole Person Impairment since there is no loss of range of movement or function of his upper limbs.
Under Table 9.2 he has no Whole Person impairment since there is no loss of range of movement of his lower limbs.
Under Table 9.5 he has a 10% Whole Person Impairment since he can rise to a standing position and walk, but has difficulty with grades and steps.
Under Table 9.6 he has a Whole Person Impairment of 10% as has loss of less than half the normal range of movement of his thoraco-lumbar spine. (This loss of range of movement has been assessed as more than a minor restriction of movement.)
Please note that the impairment of the thoraco-lumbar spine is most likely to be due to his reported back injury in September 1994, a condition for which assessment has not been requested at this time.
...” (T53)

Evidence relating to the applicant’s psychiatric condition

33. Documentary exhibits tendered in evidence by the respondent include the following relevant material:
    • Heathcote Hospital Discharge Summary, dated 12 June 1987, in which it is stated that the applicant was admitted on 3 May 1987, diagnosed with Acute Schizophreniform Psychosis, and discharged “to Aftercare Status” on 8 June 1987 (Exhibit R6);
    • clinical notes regarding the applicant’s regular attendances at Bentley Clinic in the period from 16 June 1987 to 12 January 1988, and a clinical note dated 8 April 1988 which states as follows:

“Mr Pollard has not kept an appointment at this clinic for over 3 months. Has been very irregular in continuing his Modecate therapy. He is a 19 year old male of immature personality, limited social skills, moderate to heavy user of alcohol most of the time, and moderate to heavy user of Marijuana most of the time who, in a setting of psychological stresses and a virus infection and insomnia 10 months ago, became psychotic for a period of a few days, and was admitted to Heathcote Hospital, diagnosed as having an acute Schizophreniform Psychosis treated with Phenothiazines by depot injection since, and experiencing what he regards as many side effects. He is most resistant to continuing further treatment and quite insightless, even though his younger brother aged 16 had a similar psychotic episode just two weeks ago, and was taken by Dean to Graylands Hospital. In fact, Dean is so insightless he states many of his difficulties and symptoms were created by the doctors and the medications he was given. On the positive side, he is maintaining a job in his father’s firm as a Stone Mason; he does have some social relationships; he is staying within his family system without adverse report from them. The father has been monitoring for relapse of psychotic phenomena. It was only with the greatest of difficulty and much persuasion that I managed to get Dean to agree to previous plans of management for him to continue Modecate therapy for a full year after discharge from hospital, which agreement had been reached (sic) Dr J Lawrence and Dr J Rampono, and this would mean a further 2 Modecate injections.” (Exhibit R7)

34. A report of Dr Mark Rooney, Consultant Psychiatrist, Swan Adult Mental Health Centre, dated 13 September 2002, to Dr Fischer (the applicant’s then general practitioner) states as follows:

“I met with Mr Pollard this afternoon – he had presented to Sir Charles Gairdner Hospital on the 12/09/02 in company with his father – he was assessed by a Psychiatric Registrar, who recommended follow up at this clinic.
Asked why he had attended Sir Charles Gairdner, Mr Pollard said, ‘those traitors – 16th Battalion – they turn on me – the Army Reserve didn’t pay me any compensation. I volunteered in Newmarket, England – they turned up on a building site and wanted volunteers for a bomb sweep’. He proceeded to describe, in a markedly thought disordered fashion, an elaborate delusional system incorporating the CIA, Iraq, the United States military, the Australian military and the Government Health System. He contends that he became ill in either 1991 or 1994 while employed by either the Army Reserve or the Australian Army – he said he was bitten by a tick, and subsequently developed Chronic Fatigue Syndrome. He also states that he has a chronic neck problem associated with a variety of symptoms including ‘flashing lights’ and headaches. He states that he has been denied compensation by the Army, and made frequent references to his belief that his current psychiatric assessment is related in some way to his claim for compensation, and may constitute an attempt to discredit him in some way (he also links this with his father’s attempt to ‘do the same thing’ when he arranged for Dean to be assessed at Heathcote Hospital at the age of 17).
It was a little unclear why Mr Pollard had agreed to attend the clinic today (a Community Mental Health Nurse visited him at home and provided him with a taxi voucher) – I gained the impression that he attended because of his belief that this matter is related in some way to his attempt to gain compensation from the Armed Forces.
Family psychiatric history – Mr Pollard described his brother as ‘a psychopath – he was born evil ... I don’t feel safe around a person like that’, and said that his brother dabbles in the ‘dark arts’. I understand that his brother has attracted a diagnosis of schizophrenia.
Past medical history – Neck problems, possible Chronic Fatigue Syndrome described by patient; he denied any psychiatric history, other than acknowledging that he had been tricked into attending Heathcote Hospital at the age of about 17.
Medications – a variety of anti-inflammatory medications and lotions, and panadeine forte until recently.
Personal history – Mr Pollard is the eldest of three full siblings, having a 32 year old sister and a 30 year old brother, Brian (as above). His parents separated when he was around 4 years of age, and he also has a 19 year old half-brother, Andrew, from his father’s second marriage. His mother died in 1994.
Mr Pollard tells me after his parents separated when he was aged between 4 and 6, in Blackpool, he was initially accommodated in a Catholic Orphanage for a brief period, then went to a ‘teenagers’ place’ for about a year, then went to live with his father when he was aged about 7 or 8. His father, stepmother and siblings moved to Australia in 1984, when he was aged about 15 – he said that he hated Australia and pined for the United Kingdom, and missed his friends a great deal. He said that most kids at school hated him, but then went on to say ‘ that children in England hated me too – I wasn’t confirmed, apparently ... so I couldn’t have the bread and wine’.
Mr Pollard proceeded to tell me about his tendency to over-heat – he told me that he died in 1991, and returned from the dead.
Mr Pollard subsequently worked as a stone mason, both in Australia and Britain – he states that he became involved in various high level military activities while in Britain, and at one stage apropos nothing in particular, stated that there is a deadline in 10 days – ‘whether we strike Iraq or not – I have a civilian role’.
Mr Pollard is now in receipt of welfare benefits – it was difficult to determine the precise nature of these. He tells me that he is buying his house in Maida Vale, where he lives alone.
Mental state examination – Mr Pollard presented as a slim, casually dressed but clean man, who maintained eye contact but did not establish rapport. His talk was of normal rate, and unremarkable while discussing neutral topics but characterised by florid formal thought disorder when he talked about his various conspiracy theories (marked loosening of associations and illogicality). Among other things, he informed me that the doctor whom he saw at Sir Charles Gairdner Hospital last night was a man he had seen in Hyde Park, London, ‘there’d been a murder there – I’d say it’s Celtic ... I’ve been a member of the Druid Lodge myself’. He also informed me that he was attacked in Forrest Place in 1988 – ‘by the BLF, but they were IRA, obviously. They’d been filming MI-6, I presume, for two years ... It involved most of the Labor Party’.
Mr Pollard’s affect was somewhat restricted, and he occasionally laughed in an idiosyncratic, rather incongruous fashion. He denied the experience of any hallucinations, though at one stage made reference to phenomena which may have constituted auditory hallucinations. I was unable to elicit any clear history of thought interference, but he said he sometimes feels a ‘pressure in my head, and I get the feeling sometimes that people are into the black arts’.
I did not perform a formal assessment of Mr Pollard’s cognitive function; he displayed no evidence that he has any insight into the presence of mental illness. When I suggested that I might write to you, he laughed and said, ‘military action!’. He then said ‘’cos that’s what it’s about. I’m still in military service – I still have my dog tags. It’s difficult ... I’m linked to NASA and to Eurosat’.
I believe that Mr Pollard presents with longstanding features of paranoid schizophrenia – his father allegedly told the Registrar at Sir Charles Gairdner Hospital that Dean has displayed this behaviour intermittently for many years. It will obviously be important to obtain additional collateral history, and I would be grateful if you would perform a thorough organic screen, provided that Mr Pollard cooperates. I’d recommend performance of Cranial CT, full blood picture, U&E, LFT, syphilis serology, thyroid function tests and Gamma GT. I’d also check B12 and folate status. There is a small chance that Mr Pollard’s psychosis is attributable to a potentially reversible organic factor, such as intra-cerebral or systemic pathology.
I recommend that Mr Pollard start taking RISPERIDONE – I prescribed the drug at a dose of 0.5 mgs bd, and provided him with a script for a 30 days’ supply. He stated that he would check with you, and with a ‘Doctor of Psychology in Tasmania’ before proceeding to take the medication. I attempted to offer him a follow up appointment but he said that he would check with you first.
I am concerned about Mr Pollard’s ongoing wellbeing – there are not grounds to invoke the Mental Health Act at present, but it will be important to monitor his wellbeing over the forthcoming months.” (Exhibit R11)

35. A Mills Street Centre Discharge Summary, dated 3 January 2003, relating to the applicant’s discharge from the Centre on 3 December 2002 following his admission on 28 November 2002, states as follows:

“ ...
DIAGNOSIS: Schizoaffective Disorder – Manic Type
HISTORY OF PRESENT COMPLAINT:
Dean is a 33 year old male who was re-admitted nine days after discharge from the Mills Street Centre with a quite similar presentation. He was preoccupied with paranoid delusions regarding a conspiracy to deprive him of workers’ compensation monies by the Department of Veterans’ Affairs. On the day of admission he had made threats to kill staff of Veterans’ Affairs with firearms.
On initial presentation Dean felt aggrieved about having been returned to hospital and stated that he had been fine since his previous discharge. Only a limited history was obtainable as Dean was reluctant to co-operate.
MENTAL STATE EXAINATION:
On mental state examination Dean was a fit-looking man, casually dressed, who had brought in to the interview with him a large pile of documents from Veterans’ Affairs. He was basically hostile but at times laughed out loud inappropriately. He terminated the interview by walking out of the room. His speech was noted to be loud and pressured and he described his mood as furious. He had an irritable and manic affect. He showed tangentiality and loosening of associations and was preoccupied with themes of persecution and his legal rights. He denied any hallucinations but appears quite insightless as to his condition. Dean refused physical examination.
PROGRESS & MANAGEMENT:
Dean remained combative throughout his admission and generally refused his prescribed medication. He was frequently verbally abusive and on one occasion was involved in physical conflict, which resulted in the laceration of an ear of one staff member. He did not accept the possibility that he may be suffering from a psychiatric illness and maintained that he was the victim of a conspiracy by the Department of Veterans’ Affairs. He required sedation regularly throughout his admission.
Dean was transferred back to the Swan Valley Centre on the 3rd December 2002. He had originally not been admitted there as his brother was an inpatient at the time.” (Exhibit R14)

36. A report of Dr Carolyn Graham, Psychiatrist, Swan Valley Centre, dated 14 May 2003, concludes as follows:

“ ...
Dean was treated as an involuntary in-patient at Swan Valley Centre until the 30th of December, when he was discharged on a continuing involuntary treatment order in the community. His mental state slowly stabilised on treatment with antipsychotic medications, he remained insightless into the fact he had been suffering a paranoid mental illness, however became settled in behaviour and accepting of mental health services input. Discussion with current treating psychiatrist Dr Molin, indicates that his mental state remains stable to the present (12/05/03). Mr Pollard had one previous psychiatric admission approximately twenty years ago to East Perth Hospital with a paranoid psychosis He believed this episode of illness had been substance induced. In my opinion, it is likely that Mr Pollard has suffered a chronic low grade Paranoid Psychosis for many years, however he has not required Mental Health Services intervention until the recent episode of illness. His delusional disorder appears to be exacerbated by stress and also by use of illicit substances or high doses or withdrawal from prescribed medications. Prior to this episode of illness Mr Pollard had numerous stresses including an inability to work due to his back injury, financial difficulties and lack of access to his daughter, in addition to the lengthy process of his claim for compensation through Veterans’ Affairs Department.” (Exhibit R15)

37. A report of Dr Raj Sekhon, Registrar in Psychiatry, Swan Adult Mental Health Service, dated 7 July 2003, to the Mental Health Review Board states as follows:

“Mr Pollard is a 34 year old single gentleman who currently resides in Maida Vale. He is on a Disability Services pension due to chronic back pain and Chronic Fatigue Syndrome. Prior to this he was in the army.
Mr Pollard is separated and has a 4 year old daughter who resides with her mother in Tasmania.
Psychiatrically Mr Pollard most probably has a diagnosis of Paranoid Schizophrenia. His first involvement with psychiatric services was at the age of 17 when he was admitted to Heathcote Hospital voluntarily and was given a diagnosis of Schizophreniform Psychosis. He became unwell again around the middle of last year and required admission under Mental Health forms to the Mills Street Centre. It was quite clear during his admission to the Mills Street Centre that he was very unwell, expressing very significant paranoid beliefs and ongoing themes of persecution by the Department of Veterans’ Affairs. He had also made a threat to an individual at the Department of Veterans’ Affairs. He lacked insight into the fact that he was unwell and attempts to engage Mr Pollard prior to his admission were unsuccessful. He was commenced on RISPERIDONE but he was noncompliant with this prior to his admission.
During his admission to the Mills Street Centre Mr Pollard became acutely aroused, misinterpreted the actions of some nurses and required restraint. He subsequently bit one of the staff members on the ear during this restraint. It was quite obvious that he was very unwell at the time and that he now has significant remorse regarding this incident.
Mr Pollard was transferred to the Swan Valley Centre for ongoing treatment and was initially discharged on 30th December 2002 on a Community Treatment Order. He was prescribed OLANZAPINE 20 mgs nocte.
I have been managing Mr Pollard since the beginning of this year and he has been quite well from a symptomatology point of view. His mood has been euthymic and his persecutory delusions and psychotic features are much improved. He is also much warmer and he is very remorseful regarding the actions which occurred at the Mills Street Centre. He has also been compliant with his OLANZAPINE.
During this period Mr Pollard has had a few major psychosocial stressors, namely a court case with regards to the assault to the nurse in the Mills Street Centre and he was given an Administrative Order for 12 months, but he did not face any gaol term. Another ongoing stress is his perceived unpaid pension from the army. Fortunately Mr Pollard has taken our advice and has asked an advocate to act on his behalf with regards to negotiating the unpaid pension from the army.
In summary then, Mr Pollard is a gentleman who most probably has a paranoid schizophrenic illness, who when untreated becomes very unwell and potentially becomes a risk to others and also to himself. He is currently on OLANZAPINE 20 mgs which appears to be helpful. My concern is that Mr Pollard, despite having a good rapport with myself, still has only partial insight into his condition. He is not fully convinced that he has a treatable mental illness, however he is in agreement for the Community Treatment Order to continue, mainly as a form of structure and he told me that he was happy to continue to see me to monitor his mental state and to continue taking OLANZAPINE.
...” (Exhibit R17)

38. A report of Dr Sekhon, dated 16 August 2006, “to whom it may concern”, states as follows:

“I am writing in my capacity as Mr Pollard’s treating psychiatric doctor at the Swan Adult Mental Health service. My qualifications are Bachelor of Medicine and Surgery from the University of Western Australia in 1996 and I am currently a Senior Psychiatric Registrar with the Royal Australian and New Zealand College of Psychiatry.
I am currently treating Mr Pollard for the following psychiatric conditions:

1. Persecutory Delusional Disorder. This is currently in remission. He first displayed symptoms of this condition in the year 2002 with the main symptoms being persecutory delusions, irritability and hypervigilance. He is currently on Risperidone 2mgs at night for this condition.
2. Dysthymia which is chronic feelings of depression and anxiety. He is currently on Amitriptyline 125mgs at night which is assisting him with this condition.

In addition to the above conditions Mr Pollard has chronic fatigue syndrome which is an independent medical condition separate from the above diagnoses.
Mr Pollard also has a significant amount of psychosocial stressors related to his medical and psychiatric conditions and I assist him via supportive psychotherapy during our appointments. I have also referred him to our senior social workers for additional support during difficult periods in his life.
In summary then, Mr Pollard is a gentleman who I treat who is responding to treatment and is an active participant in his therapy and requires ongoing psychiatric management. I hope that this summary has been beneficial.” (Exhibit R20)

39. A further report of Dr Sekhon, dated 13 December 2006, “to whom it may concern”, states as follows:

“I am writing in my capacity as Mr Pollard’s Treating Psychiatric Doctor at the Swan Adult Mental Health Service.
I first met Mr Pollard in April 2003 and have been managing him for approximately a two year period since then.
Mr Pollard is a 38 year old gentleman who resides on his own in Maida Vale. He has a daughter who resides with his ex partner interstate. Mr Pollard is an ex soldier who has had to stop serving in the Armed Forces due a diagnosed Chronic Fatigue Syndrome.
Psychiatrically Mr Pollard appears to have a Dysthymic Disorder which is chronic depressed and anxious mood.
It is my professional belief that Mr Pollard’s psychiatric illness is a direct impact of his Chronic Fatigue Syndrome and resultant loss of ability to maintain employment with associated psychosocial stressors.
Mr Pollard is currently on Amitriptyline 125mgs nocte and Risperidone 2mgs nocte.
I see Mr Pollard at approximately two monthly intervals for the following:
1. Supportive psychotherapy.
2. Psychiatric symptom monitoring.
3. Medication efficacy monitoring.
I will continue to see Mr Pollard as I believe he requires ongoing psychiatric management.” (Exhibit R19)

Dr Hector Divinagracia

40. Dr Divinagracia, Psychiatric Registrar, Swan Valley Centre, completed a medical report form, dated 5 June 2008, for the purpose of the applicant’s claim for compensation for permanent impairment. In that form Dr Divinagracia listed the diagnoses of the applicant’s current conditions as:
    • dysthymic disorder
    • chronic fatigue syndrome
    • amphetamine and alcohol misuse
    • amphetamine-induced psychosis

and he opined that the applicant’s dysthymia “may be related to” his chronic fatigue syndrome. (Exhibit A4)

41. In his oral evidence Dr Divinagracia said that the applicant’s amphetamine misuse was presently “causing him the most trouble”, and had led to psychiatric admissions in 2007.

Dr Peter McCarthy

42. Dr McCarthy, Consultant Psychiatrist, said that he had 3 consultations with the applicant – namely, on 15, 19 and 20 September 2006 – whose total duration was approximately 5 hours, and that he provided a report, dated 5 February 2007, to the respondent’s solicitors.
43. In his report of 5 February 2007 (Exhibit R21) Dr McCarthy set out in detail the applicant’s pre-1994 social and employment history (which included references to various events which Dr McCarthy described as “unbelievable”) and he then set out the history of the applicant’s military career as follows:

“xvii. Mr Pollard says he attended an Army Reserve evening over Christmas 1993 and in March and April 1994 attended recruit training at Irwin Barracks and then at Leeuwin Barracks Western Australia. He says he was trained by 1 Training Group (not 5 Training Group which is the WA Army training organisation); he did some field exercises at Bindoon and was then posted to 16 Battalion 13 Bde RWAR. He was working as a stonemason at the time in early 1994; that work ended, he was on the Dole for a time and he was then offered full-time Army Reserve duties on various activities such as acting as the special forces enemy party on exercises and was involved intermittently on full time duties through to December of that year preparing the various training activities, much of it involving 11/28 Bn. He says he developed problems in September 1994 when he was on exercise in the bush, sleeping on a ground sheet and using a one-man hochie tent. He recalls one night, with a full moon, when he awoke with a pecking sensation in his heels. He opened his eyes and saw what he thought was a bat which had bitten him while he slept in his tent. He says he went back to sleep but when he woke up he could not move his legs. He said he felt a movement in his sleeping bag; a big snake came out of his sleeping bag so that he and the snake were face-to-face and he then passed out. He recalls that the SAS had a black python snake as a mascot back at Scale A (a small hut/replenishment area at the camp) but he is not sure whether that was the snake that bit him. He says he did not tell anyone about the snake bite and during the exercise he also injured his back while working in the field, which was witnessed by an officer.

18. Mr Pollard says that over the rest of September he developed a mild flu-like illness, which has now lasted for the last 12 years. He was able to remain at work despite suffering joint pains affecting all joints but particularly his ankles, knees and lower back. He said he initially put in a claim for his back injury rather than his flu-like illness, which he says did not prevent him from attending exercises. He says that at one exercise he was shot in the face with blank ammunition. He recalls two exercises of relevance in November 1994. He says in the first exercise he and a Corporal ... were together when they were told to run to a location. He says as they did so they were crop-sprayed by a Tiger Moth, which he felt was suspicious. He says he mentioned the presumed chemical exposure to Corporal ... who told him to keep quiet.
19. He had another incident when he attended an exercise between 28th November and 6th December 1994 when, he says, he was an observer of British, American and Australian exercises in the area patrolling 12 km a day. He says that on 3rd or 4th December, at the end of an evening, he felt something ‘strike’ him resulting in some kind of discomfort on the left side of his left leg. He says that within a short time his eyes began to play up, he felt cold and clammy, developed a fever with sweating and he says he could ‘smell the snake venom’. He says he could not continue in the field and was taken back to Scale A but he cannot recall if he told them about the snakebite/s. He says he remained at Scale A with a visiting Eastern Battalion overnight and was going to be medivacced via RAAF Pearce Airbase the next day. He says the Adjutant of 16 Battalion ... turned up and talked him into staying in the field at Bindoon. He says he remained and, in fact, participated in simulated infantry attacks the next day although that day he again strained his back when he slipped over carrying an M-60 machine-gun. He says that the ‘enemy Battalion’ found their vehicle and therefore he was obliged to leave the Exercise field.
20. He still suffered back pain and he felt unwell so he saw a local Doctor, Dr Gower and returned to Perth. He is unsure of what had affected him, whether a snakebite, tick or bat bite/s however he was pleased with his activities in the field. He says he saw a local medical officer on 7th December and by 8th December he was unable to lift himself out of bed, he could not close his hands, he felt febrile and still noticed a smell which was reminiscent of snake venom. He says he continued to suffer from flu-like symptoms and he now realised that he had developed ‘Chronic Fatigue Syndrome’ although he is not sure whether this claimed illness is secondary to a Ross River virus infection, a tick bite, a bat bite, a snakebite or chemical contagion from the crop duster. He says in 1995 the OIC of Delta Company was a Lieutenant ... who, like him, developed Ross River virus. He says a Captain ... of the unit gave him his mobile number to take care of his sick colleagues. He said he, along with two other soldiers, expected to receive a commendation for his efforts during the exercise and was very disappointed this did not occur. Indeed he says back at 16 Battalion he was interrogated on two occasions over his symptoms and although he could not see the equipment he believes he was gassed during one of these interviews as he heard a hiss. He says he could not work or parade during 1995 but he could attend weekend exercises and recalls a live fire exercise where he was down the Butts of the rifle range with an officer by the name of ... as part of target control. He recalls that he was nearly hit by a bullet that went over his head; he felt unwell and signed off sick. He complains that a Lieutenant ... was an officer who was appointed to support him but complains that the officer wrote to the Department of Veterans’ Affairs saying he was a fraud.
21. Mr Pollard says that during 1995 he could not return to work, he felt betrayed and went on sickness benefits. He also read a book about a UFO over Perth and after reviewing a photo from NATO sources began to wonder if there was a connection between his flu-like illness and the UFO. He says that in 1996, although still ill, he was transferred to the Mortar Platoon of Support Company 16th Battalion which he found, to his horror, had no record of his illness. He said he was able to parade on occasional Tuesday evenings and his life and health improved. He met a lady that same year and formed a relationship that lasted intermittently for three to four years. He says on 22 October 1996 he was discharged from the Army Reserve and that in November 1996 he attempted to return to work, building a separation wall for a neighbour but had difficulties because of continuing tiredness and joint and muscle pain. He says that in January 1997 he went to Melbourne to work at the Crown Casino for three months. He then went to Williamtown in Victoria where, for three months, he worked as a stonemason until his ‘flu-like’ symptoms got worse.”
    

Dr McCarthy then set out the applicant’s history in respect of the period 1997-2000 and continued:

“xxv. Mr Pollard says in 2001 he was back home and he contacted the DVA concerning his lumbar and cervical spine and his low back pain. He was reviewed by the orthopaedic surgeon, Dr Hardcastle, and also saw the rheumatologist, Dr Hayes, who, he says, told him his condition was permanent. He says that during 2002 he began to become emotionally distressed as he received no satisfaction from the Department of Veterans’ Affairs application for benefits, he had gone bankrupt, he had lost contact with his child and he suffered what he considered to be Chronic Fatigue Syndrome. He complained of continuing pain and fatigue and he eventually became depressed over his situation. By depressed he means he was irritable during the day and at night felt sad. He complains that the Department of Veterans’ Affairs formed the impression he was dangerous and that an Occupational Physician, Dr Pearce, wrote a letter suggesting that he, Mr Pollard, required aggressive psychiatric treatment.

26. Mr Pollard says that in late 2002 he was admitted to the Mills Street Mental Health Centre from the Swan Valley Mental Health Centre for emergency (apparently involuntary) psychiatric care. He remained there for two weeks and could not recall transpired (sic). His treating doctor, in his letter of 18 August 2006, refers to ‘a traumatic admission to the Mills Street Centre where he was secluded with great force’. Mr Pollard believes he has been the victim of a miscarriage of justice. He says he was charged with assault, resisting arrest and disorderly conduct and that he was apprehended and mistreated by seven policemen who, he was happy to say, had been ‘busted’ by an officer from Police Internal Affairs. He did, however form the opinion that he is increasingly being let down by those who he thought would support him. He recalls that in approximately 1994 he was a guest of the Governor at a Reserve Service dinner and did some work on Government House. He says the Governor let him down when the Queen left although he was a bit vague about what that meant but Mr Pollard does recall talking to a senior policeman concerning torture and aspects of organised crime.
27. Mr Pollard was also troubled by continued rumination on the meaning and cause of his illness. He recalls that in Melbourne in 1998 he saw a Dr Anderton who did some tests in reference to possible biological weapons that may have been in the area of the nuclear facility in the United Kingdom. Mr Pollard said he had had the impression he had suffered from pneumonia (and a temporary suspension of life) when he was admitted to Blackpool hospital and reflected that his great grandfather had died of pneumonia in the United Kingdom. He says he was told by Dr Anderton that he had never had pneumonia and Mr Pollard began to wonder whether he had been exposed to biological weapons, including anthrax, while working in England. He pursued this in 1995 through a psychic and Buddhist group in Perth. He showed them a photograph which, he said, caused them to be fearful and Mr Pollard referred vaguely to matters to do with the psychic world and the undead. He says that during 2003 he remained at home on a Disability Pension and 2004 and 2005 was spent either at home or pursuing his case which he says has been going on since the year 2000.

Recent Progress

28. Mr Pollard remained at home during 2006. He says he has telephone contact with his daughter aged seven, who is currently in the United Kingdom and is due to return to Australia in the near future. He says he is now sleeping ‘fine’ with only occasional difficulty sleeping but he may sleep for 18 hours a day for three days. He says his mood is a bit anxious; he is not depressed or tearful but he is somewhat irritable. He says he continues to suffer from tiredness, which is increased with any activity but is not relieved by anything. He says he has difficulty with his memory and concentration and has not been able to read a book for years. His appetite and weight are satisfactory. There was no history of self-harm or suicidal thoughts and he has a poor libido. There were no feelings of hopelessness, worthlessness and guilt but he does worry about his various symptoms. He says he gets headaches every day although the nature and site of the headaches varies and he says he continues to suffer from pain affecting his elbows, knees, back, shoulder and ankles.
29. He is able to attend to his own bills and household administration and his own self-care. He has few friends and goes for walks. He seems to have no clear external source of fun or interests. He is able to shop and enjoy his TV and Foxtel. He drives an automatic, power-steered car without any difficulty. He sees his General Practitioner, Dr Thelander, and a psychiatric doctor at Swan Mental Health regularly and his current medication is:-
    • the tricyclic antidepressant Amitriptyline at 125 mg/day; and
    • the antipsychotic medication Risperdol, 2mg daily.
30. Mr Pollard says he smokes a packet of cigarettes a day; he denies using any illicit substances and does not drink much alcohol because he cannot afford it but occasionally has two to four cans of beer. He is vexed by his current medico-legal case. He believes that the insurance company’s solicitors have made false allegations about him and he feels that his threat to kill people with firearms has resulted in a misunderstanding with the Occupational Physician, Dr Pearce, and Department of Veterans’ Affairs officials’”
    

Dr McCarthy then expressed his opinion as follows:

“xxxiii. Mr Dean Pollard offered the above extraordinary, fantastical history, which indicates that he has suffered from significant psychiatric symptoms of a psychotic or quasi-psychotic nature for much of his adult life. He has a chronic underlying delusional state with grandiose and paranoid beliefs, ideas of reference and, at times, passivity phenomena with a claim of extraordinary, implausible experiences. He describes perceptual abnormalities and has also a long history of hypochondriacal, delusional mis-interpretation of physical symptoms including either day-to-day physical symptoms or actual illnesses he has suffered. He also has a history of a degree of social and relationship difficulties and eccentricities of behaviour.

34. This man is probably suffering from a Schizotypal Personality Disorder (DSM-IV 301.22). ... This disorder refers to a pervasive pattern of social and personal deficits as well as cognitive and perceptual distortions and eccentricities of behaviour. This pattern begins by early adulthood and is present in a variety of contexts. This man has a history of odd beliefs, magical thinking, unusual perceptual experiences, ideas of reference, odds thinking, suspiciousness, peculiar behaviour and, at times, physical symptoms with hypochondriacal tendencies. To a lesser extent there is a lack of close friends or confidantes other than first-degree relatives and there is a degree of social anxiety. The differential diagnosis of this gentleman’s condition is of a Chronic Paranoid Schizophrenic Disorder, or a Chronic Paranoid Delusional Disorder. Although this man has also suffered from a Major Depressive Disorder in the past I do not think he has been suffering from a mood disorder with psychotic features. He may have suffered from Dysthymia (moderately severe, chronic, fluctuating depression) in the past but he does not now do so, perhaps reflecting a response to his antidepressant treatment.
35. I do not believe Mr Pollard suffers or has suffered from any psychiatric disorder attributable to a general medical condition whether due to Ross River virus or one of the numerous other illnesses, injuries and traumas this man claims to believe he has suffered including nuclear radiation poisoning, various forms of other poisoning, various forms of insect and animal bites, and chemical exposure. He has had psychotic symptoms from time to time; however I do not think he is suffering from a Borderline Personality Disorder or simply from a Paranoid Personality Disorder. I did not receive a history of drug or alcohol abuse or dependence nor of neuropsychiatric disorders such as a serious head injury.”
    

Dr McCarthy then answered specific questions asked of him by the respondent’s solicitors as follows:

“ ...
3. What is your diagnosis of the applicant’s condition?
This man is suffering from a chronic psychotic or semi-psychotic condition. He is probably suffering from a Schizotypal Personality Disorder but the significant differential diagnoses include, Chronic Paranoid Schizophrenia and a Chronic Paranoid Delusional Disorder.

4. The applicant’s present condition and whether it was caused by the incident at work.

This man’s present condition is of a chronic personality disorder associated with psychotic breaks and delusional thinking, at times of a hypochondriacal nature. This condition is attributable to Mr Pollard’s genetic and constitutional nature and upbringing and has no relationship to the incident reported at work with the Army. His pre-existing chronic, serious psychiatric condition is very highly likely to interfere with his interpretation of physical symptoms or of reality generally. These same comments apply if the diagnosis of a Chronic Persecutory Delusional Disorder or of Chronic Paranoid Schizophrenia is preferred. I do not accept the hypothesis that he suffers depression, psychosis or any other psychiatric disorder secondary either to an imagined Chronic Fatigue Syndrome or to a valid diagnostic entity such as Ross River Virus.

5. Whether the applicant has any pre-existing or underling condition that partly or wholly accounts for the applicant’s symptoms.

This gentleman has a pre-existing, serious, chronic psychiatric condition, which, in my view, may readily and wholly account for his physical and psychiatric symptoms. At various times in his life he has formed the belief that he has suffered from a variety of medical illnesses, most of an implausible nature. This man’s underlying Personality Disorder or chronic psychosis is highly likely to interfere with his interpretation of reality and internal psychological events with the mis-attribution of internal events, feelings or physical symptoms to an external reality or construed illness or injury.

6. On the balance of probabilities, did the applicant’s employment with the Army make a material contribution to the applicant’s condition?

On the balance of probabilities I think it is highly unlikely that the applicant’s employment with the Army made a material contribution to his psychiatric condition. It is more likely that his service in the Army Reserve, as in other areas of his life, has formed a stage for him to manifest his chronic non-work-related psychiatric and at times psychotic illness.
...
9. What, if any, future treatment the applicant should undergo.
This man requires ongoing psychiatric treatment for his chronic psychiatric condition. He currently takes an appropriate antipsychotic medication as well as a low to moderate dose of an antidepressant. He currently sees his general practitioner and also a psychiatric doctor at the Swan Clinic, part of the public mental health system. From a psychiatric perspective this is adequate treatment and I suggest he continues with such treatment. He has been depressed in the past but is not currently significantly depressed or particularly anxious and he does not suffer from Panic Attacks, Agoraphobia or obsessive-compulsive symptoms. For the moment he is not distressed and should be able to manage on his current treatment. I believe his psychiatric state and his requirements for psychiatric treatment are attributable to his chronic pre-existing psychiatric illness and not to any alleged work-related psychiatric illness nor any pre-existing psychiatric illness aggravated by work.
...
12. The prognosis of the applicant’s work-related condition, if any.
I do not believe this gentleman is suffering from any work-related psychiatric condition. He is suffering from a chronic pre-existing psychiatric disorder, which has a poor prognosis and may deteriorate over time. Antipsychotic treatment should reduce the severity and frequency of psychotic relapses but will not cure his condition. His psychiatric prognosis is poor, his requirement for psychiatric treatment is indefinite and, to some extent, he will be disabled for the rest of his life but that is not attributable to any work-related psychiatric condition. I do not believe this gentleman is suffering from a work-related psychiatric condition.
...”

44. In his oral evidence Dr McCarthy said that his preferred diagnosis of the applicant’s psychiatric condition was now chronic paranoid schizophrenic disorder. He opined that it was unlikely that that disorder was drug-related, but he acknowledged that possibility.
45. Dr McCarthy subsequently provided a report, dated 21 July 2008, to the respondent’s solicitors. That report (Exhibit R23) commences as follows:

“Thank you for your letter of 15 July 2008, inviting a review of the integrated progress notes covering the period June 2006 to date from the Swan Valley Clinic. You have my previous report and you have heard my opinion, expressed in court (sic), in which I believed this gentleman was suffering from a Chronic Paranoid Schizophrenia or a Chronic Paranoid Delusional Disorder although I offered the differential diagnosis of a Schizotypal Personality Disorder; I noted his use of amphetamines. I also believed that he may have suffered from Dysthymia, that is moderately severe, chronic, fluctuating Depression in the past but he did not do so in 2007, perhaps reflecting a response to treatment.”

Dr McCarthy then comprehensively set out his review of the abovementioned “integrated progress notes” (part of Exhibit A4) and then answered questions asked of him by the respondent’s solicitors as follows:

“ 1. Does the report on the new notes cause you to change your previous diagnosis? Is so how?
This man is probably suffering from Chronic, Paranoid Schizophrenia, with recurrent paranoid delusions and, when psychotic, schizophreniform thought disorder in the form of tangential and circumstantial thinking and ideas of reference. The most significant differential diagnosis is of an Amphetamine-Induced Psychosis. These diagnoses are not mutually exclusive. Some patients with schizophrenia find that the use of narcotics or stimulants, such as amphetamines, subjectively improves their psychotic symptoms or at least distracts them from their symptoms, despite the observation of observers that amphetamine abuse worsens the state of someone with schizophrenia and may itself induce a temporary schizophreniform state. It is not unusual for young persons, at least nowadays, when presenting with first episode psychotic disorders, to have a history of amphetamine, cannabis or similar drug use and at first it is often unclear whether their psychosis is purely drug-induced or whether there is an underlying schizophrenic or other psychosis. The fact that Mr Pollard’s diagnosis in 1987 was of an amphetamine-induced psychosis doesn’t really help us in deciding whether he has a primary schizophrenic illness which is exacerbated by his amphetamine use or whether he has a primary amphetamine-induced psychosis. The fact that he didn’t admit his amphetamine abuse when he went to hospital in 1987 is not unusual and doesn’t change anything. The idea that Mr Pollard doesn’t know how the medical records from Bentley Clinic came into existence is compatible with his presentation and doesn’t change anything.
It is quite possible that Mr Pollard does not suffer from a primary schizophrenic illness and it is possible that he does suffer from an amphetamine-induced psychosis. A factor in favour of this is the apparent improvement in his mental state, after ceasing amphetamines for only 10 days, if that in fact was the case. Factors favouring a diagnosis of schizophrenia, albeit exacerbated from time to time by amphetamine usage, are the long history of this man’s recurrent psychotic illness from 1987 and the existence of a related psychotic disorder in his genetic brother. With the information we have at the moment, I don’t think I can be dogmatic that he is definitely suffering from schizophrenia as opposed to a recurrent amphetamine-induced psychosis however I think it is clear from the descriptions that this man not only suffers from paranoid persecutory delusions when unwell, but he is also thought disordered, with ideas of references, and he demonstrates a typical spectrum of schizophrenic symptoms although those symptoms may be completely mimicked in the acute circumstance by amphetamine toxicity and an amphetamine-induced psychosis.
From my experience the history strongly suggests to me a diagnosis of schizophrenia; however; if he has been regularly abusing amphetamines all these years, that of itself, without reference to a separate primary schizophrenic illness, may be responsible for his psychiatric and physical symptoms. An amphetamine-induced psychosis will usually settle within weeks, if not days, of stopping the amphetamines; however, in the presence of chronic amphetamine use, it may not be possible to differentiate the two conditions. This man also almost certainly suffers from a chronic personality disorder, which I described as schizotypal in my initial report and which his treating doctors have described as antisocial or psychopathic personality disorder. I note that the commonest manifestation of a personality disorder in adulthood is drug and alcohol abuse and it could be that, instead of this man suffering from a primary schizophrenic illness, he may suffer from a chronic personality disorder, with chronic amphetamine usage and therefore recurrent amphetamine-induced psychosis. The alcohol abuse is likely to add to this but this man’s main problem appears to be his persistent amphetamine abuse.

2. Do you agree that the applicant suffers from Dysthymia? If so, how does this affect the diagnosis you outlined at the Tribunal Hearing?

Dysthymia refers to a depressive disorder, occurring over at least 2 years in which one is depressed for most of the day, more days than not. That is not the history offered by Mr Pollard over the last few years, nor is it the history in his clinical notes as written by his treating doctors at the Swan Clinic. This man presents with a recurrent psychotic disorder, usually associated with amphetamine use, and his overt psychotic symptoms improve when he is said to be not using amphetamines. Incidentally, amphetamine withdrawal is a cause of depression and amphetamine at a therapeutic dose is also used for the treatment of depression. This man is also said to be taking a tricyclic antidepressant medication, albeit at a low dosage, which may also help explain the absence of depressive symptoms. This man’s differential diagnosis does not include a Dysthymic Disorder. He does not present as depressed; he presents as reasonably affable, with a stable mood when well and quite psychotic in a schizophreniform sense when unwell. He presents not just with paranoid delusions but with schizophreniform thought disorder and ideas of reference, more compatible with schizophrenia or an amphetamine-induced psychosis. There is no evidence of a Bi-Polar Disorder.
I note that no explanation is given in the notes for the sudden change in diagnosis to Dysthymia in July 2006. It appears that Dr Molin has been the psychiatrist supervising Mr Pollard. Despite his supervision, I don’t actually see his writing in the notes or his explanation of the diagnosis. Both Dr Selkon (sic) and Dr Divingracia (sic) are either medical officers or psychiatric registrars; the latter referring to trainee psychiatrists. Without trying to be unkind, by definition they are not qualified to give an independent psychiatric opinion as there may be some uncertainty about their level of experience, their training or their competence to offer dogmatic diagnoses or dispute diagnoses in an important venue such as a court of law. ... There is great doubt in my mind about Mr Pollard’s compliance with antipsychotic medication, that is Risperdal, particularly given that he doesn’t believe that he has a psychotic disorder. I note once again the absence of urine testing for illicit drugs in his outpatient files and the apparent acceptance of his chronic amphetamine usage. Realistically, there may be little alternative but one could try to persuade him to deal with this issue particularly if one believes his amphetamine abuse is the real cause of his recurrent dangerous psychotic state. The probability of this man being successfully treated for his chronic amphetamine usage is not high. The description however, of Mr Pollard’s symptoms in the notes is not compatible with Dysthymia; it is compatible with a recurrent psychotic disorder, whether attributable to amphetamine abuse or schizophrenia or some other disorder.

3. Assuming the applicant was admitted to the Bentley (sic) Hospital in 1987 for treatment of an amphetamine-induced psychosis, does this information change your opinion that the applicant suffers from chronic low-grade paranoid schizophrenia?

I have discussed this in question 1. It is possible after review of the situation that he doesn’t suffer from a chronic low-grade paranoid schizophrenia but that he suffers from a primary amphetamine-induced psychosis although as I indicate above, these diagnoses are not mutually exclusive.

4. In terms of causation are you able to provide your opinion as to whether it is likely on the balance of probabilities that when the applicant first complained of suffering from symptoms of Chronic Fatigue in late 1994/early 1995 he was in fact suffering from a psychiatric condition?

I have discussed Mr Pollard’s extensive history in my previous report. A suggestion was made that perhaps his history reflected a delusional memory. His history may indicate a false interpretation of remembered events and to be quite sure we would need further information from that time; however, since he presented in 1987 with a psychotic disorder, possibly attributable to amphetamines, I think it is likely this man was suffering from a psychiatric condition and not Chronic Fatigue Syndrome in 1994/1995.

5. Whether anything about the new information causes you to change your opinion that the applicant does not suffer from Chronic Fatigue Syndrome and that his current symptoms are caused by his psychiatric condition.

If we assume for the moment that Chronic Fatigue Syndrome is actually a legitimate diagnosable entity, then the diagnosis of this claimed disorder is essentially one of exclusion of other causes of the described fatigue and aches and pains. Dysthymia, which he has possibly suffered in the past, and psychotic disorders, whether schizophreniform or amphetamine-induced, as well as amphetamine use, apart from psychosis, are all associated with symptoms of chronic tiredness, a lack of energy, a lack of initiative, a deterioration in one’s determination and enterprise in life and chronic unemployment. These disorders are a quite adequate explanation of his chronic tiredness and in my view does not require the addition of a separate illness such as CRF (sic) to explain his clinical presentation. The negative symptoms of a Chronic Psychotic Disorder, drug-induced or otherwise, or the effects of a depressive disorder adequately explain his presentation. The complaint of Arthralgia and Myalgia is relatively non-specific and chronic physical symptoms are not uncommon in psychotic disorders or in depressed patients. There is nothing in this new information to change my opinion that the applicant does not suffer from a Chronic Fatigue Syndrome as a cause for his symptoms. When well, Mr Pollard is said to continue to suffer from fatigue; however, it is unclear from the notes whether this man is using amphetamines persistently or intermittently but I suspect he uses amphetamines as often as his finances allow. He has been able to mortgage the house, which suggests he has had the ability to purchase considerable amounts of illicit drug. His complaints of tiredness, when seen not to be psychotic by staff and when seen not to be depressed, does not persuade me that he suffers from Chronic Fatigue Syndrome. That symptom still may represent the underlying characteristics of his chronic illness which appears to be predominantly a psychotic disorder.

6. Whether you are still satisfied on the balance of probabilities that the applicant’s current psychiatric condition or his current symptoms have not been caused or materially contributed to by his military employment.

I remain satisfied on the balance of probabilities that this man’s current psychiatric condition and his current symptoms, all of which are explained by his current psychiatric condition, has not been caused by or materially contributed to by his military employment.
...”

THE RELEVANT LEGISLATION

46. Pursuant to s 14(1) of the SRC Act, the respondent 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.”

Section 24 of the SRC Act provides for the payment of compensation “where an injury to an employee results in a permanent impairment”.

47. Section 4(1) of the SRC Act (as in force at all material times) contained the following relevant definitions:

“ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
“disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”
“impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.”
“injury means:
(a) a disease suffered by an employee; or
...”
“permanent means likely to continue indefinitely.”

ANALYSIS

Has the applicant at any material time suffered, and does the applicant presently suffer, from chronic fatigue syndrome?

48. Although a determination was made by the MCRS (the predecessor of the respondent) on 7 June 2002 accepting liability under the SRC Act to pay compensation to the applicant in respect of chronic fatigue syndrome (with effect from 27 February 1995), and that determination has not subsequently been reconsidered by the respondent and remains in operation, it is permissible for the Tribunal, for the purpose of reviewing the reviewable decision of the respondent dated 7 January 2006 that compensation for permanent impairment in respect of chronic fatigue syndrome is not payable to the applicant, to consider and determine whether the factual basis of the abovementioned determination of 7 June 2002 was correct: Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253.
49. The determination of the MCRS, dated 7 June 2002, accepting liability under the SRC Act to pay compensation to the applicant in respect of chronic fatigue syndrome was, it seems, based largely on the reports of Dr Miles Beaman dated 12 December 2001, 18 March 2002 and 22 May 2002 (see paragraphs 19-21 above). Dr Beaman, in his reports of 12 December 2001 and 18 March 2002, noted that the applicant had been seen “six months ago ... by Dr Glen Brand who diagnosed chronic fatigue syndrome ...”
50. As regards Dr Beaman’s diagnosis of chronic fatigue syndrome, there is no reference in Dr Beaman’s reports to the applicant’s prior psychiatric history and it seems that that diagnosis was made by Dr Beaman without the benefit of knowledge of that psychiatric history (which, the Tribunal notes, dates back to at least 1987 – see paragraph 33ff above). As regards Dr Brand’s reports of 31 January 2001 and 9 May 2001, the Tribunal is not satisfied that Dr Brand made a definitive diagnosis of chronic fatigue syndrome in the applicant’s case. Although he stated, in his report of 31 January 2001, that the applicant’s “history of 6 years of fatigue ...” was “sufficient to make a diagnosis of chronic fatigue syndrome”, he immediately added:

“... but I think there is also a significant element of anxiety and depression and it is very difficult to determine how much his symptoms are due to this as opposed to post viral chronic fatigue.”

In his report of 9 May 2001 Dr Brand concluded:

“I cannot find any physical illness that requires treatment at the present time and I have therefore not arranged to see him again. A psychiatric opinion may be of benefit.”

51. The Tribunal notes the report of Dr Hayes, dated 25 July 2007, in which reference is made to the Royal Australasian College of Physicians clinical practice guidelines in respect of chronic fatigue syndrome (2002) which emphasise the importance of excluding alternative medical and psychiatric explanations for relevant symptoms before make a diagnosis of chronic fatigue syndrome (see paragraph 29 above). The Tribunal also notes the MCRS policy document regarding claims for chronic fatigue syndrome (see paragraph 21 above) which states that, for a diagnosis of chronic fatigue syndrome, one of the “major criteria” which “must be present” is:

“No other medical or psychiatric conditions that could cause symptoms.”

52. As regards the applicant’s psychiatric status, the Tribunal notes the following opinions expressed by qualified psychiatrists:
    • Dr Mark Rooney, in a report dated 13 September 2002, opined that the applicant presented with “longstanding features of paranoid schizophrenia” (see paragraph 34 above);
    • Dr Carolyn Graham, in a report dated 14 May 2003, opined that it was likely that the applicant “has suffered a chronic low grade Paranoid Psychosis for many years” (see paragraph 36 above);
    • Dr Peter McCarthy, in a report dated 5 February 2007, opined that the applicant’s history indicated that he had “suffered from significant psychiatric symptoms of a psychotic or quasi-psychotic nature for much of his adult life” (see paragraph 43 above).
53. Dr McCarthy opined, furthermore, that the applicant’s “chronic psychiatric condition ... may readily and wholly account for his physical and psychiatric symptoms”. In a report dated 21 July 2008, Dr McCarthy opined that:
    • it was likely that the applicant was “suffering from a psychiatric condition and not Chronic Fatigue Syndrome in 1994/1995”; and
    • all of the applicant’s current symptoms are “explained by his current psychiatric condition” (see paragraph 45 above).

Dr McCarthy’s preferred diagnosis of the applicant’s psychiatric condition is chronic paranoid schizophrenic disorder or chronic paranoid delusional disorder (see paragraphs 44 and 45 above).

54. On the basis of the expert psychiatric evidence summarised in paragraphs 52 and 53 the Tribunal finds that the applicant has, from at least 1987, suffered from, and continues to suffer from, a psychiatric condition of a psychotic nature, namely, chronic paranoid schizophrenia or chronic paranoid delusional disorder. The Tribunal is, furthermore, satisfied on the basis of that evidence that the relevant physical symptoms of which the applicant has been complaining since late 1994 are probably attributable to that psychiatric condition rather than to any other medically diagnosable condition, and the Tribunal so finds. In making that finding, the Tribunal notes the lack of objective medical evidence regarding any physical condition suffered by the applicant which might explain those symptoms.
55. The Tribunal accepts the opinion of Dr Hayes, as expressed in his report of 26 July 2007, that, given that the applicant has since 1987 been suffering from a psychiatric condition which would explain the relevant physical symptoms of which he has complained, a diagnosis of chronic fatigue syndrome, having regard to The Royal Australasian College of Physicians clinical practice guidelines in respect of chronic fatigue syndrome, was not, and is not, appropriate in the applicant’s case. The Tribunal also accepts Dr McCarthy’s opinion, as expressed in his report of 21 July 2008, that:
    • it is likely that the applicant was suffering from a psychiatric condition rather than chronic fatigue syndrome in 1994/1995 (when he complained of the relevant physical symptoms); and that
    • all of the applicant’s current symptoms are attributable to his psychiatric condition, namely, chronic paranoid schizophrenia or chronic paranoid delusional disorder.
56. Accordingly, the Tribunal finds that the applicant has not at any material time suffered from, and does not presently suffer from, chronic fatigue syndrome. It necessarily follows from that finding that the Tribunal also finds that, contrary to the determination made by the MCRS on 7 January 2002, the respondent has not at any material time been liable, and is not presently liable, under s 14 of the SRC Act to pay compensation to the applicant in respect of chronic fatigue syndrome.

CONCLUSION

57. The Tribunal concludes, therefore, that the respondent is not liable to pay compensation for permanent impairment, in accordance with s 24 of the SRC Act, to the applicant in respect of chronic fatigue syndrome.

DECISION

58. For the above reasons the Tribunal affirms the decision under review.

I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr P A Staer, Member

Signed: :...............[sgd D Brodie]........................

Associate

Dates of Hearing 9-12 June, 14 November 2008

Date of Decision 15 January 2009

Representative of the Applicant Self-represented

Solicitor for the Respondent Mr A Reilly

DLA Phillips Fox