4. The Tribunal heard evidence from the applicant, his spouse, physicians Dr Sharp, Dr Little and Dr Brand and psychiatrists Dr Ots and Dr Walton. In addition, the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975, "T documents", and additional reports were received in evidence.

5. The applicant was born on 31 January 1960. He commenced employment with the Australian Customs Service in September 1982. He worked initially as a clerk in William Street Melbourne, then for about 18 months as a cargo examiner and patrol officer variously at South Wharf, Tullamarine Airport and Victoria Dock. In June 1984, he was transferred to the World Trade Centre "WTC" building in Spencer Street on clerical duties.

6. In late 1984, he began to experience soreness in the nose and throat, severe headaches, lack of concentration and general lethargy. He also had intermittent bouts of fever. He consulted his general practitioner, Dr Oei who referred him to Dr King and in turn to Dr Sharp. The applicant was off work for about two months. Dr Sharp prescribed medication and recommended a transfer to another work area. In December 1984, the applicant returned to work at Appleton Dock on predominantly outdoor work - examining and checking cargo. His symptoms resolved. In April 1985, he transferred to Victoria Dock on similar duties. In 1987 and 1988 he obtained promotions to the rank of acting inspector performing mainly office duties. In September 1989, following an internal disciplinary matter, he was transferred against his wishes back to the WTC building. There he was located on the 3rd Floor of Building E on clerical duties. Until then he had enjoyed his work and had been symptom free since 1984. It was his evidence that within two months of returning to the WTC he suffered a recurrence of his earlier symptoms when working there, except that he no longer had any bouts of fever. He sought a transfer but was refused. The applicant ceased work in February 1990 and in March consulted Dr Sharp who provided further medication and sprays to ease nasal and throat discomfort.

7. In April 1990, the applicant returned to work but at a different location. In fact, he was tried unsuccessfully at three different locations spending about one week at each - 17 Victoria Dock, National Terminals and Blythe Street. At each location he was mainly inspecting container freight and complained of not feeling any better. He remained off work until July 1991. When threatened with dismissal he returned to work at the WTC. After two weeks he found he was unable to continue and has not worked since. At present he is in receipt of unemployment benefits. Currently, he is not receiving any medical treatment and has not had any medication for over a year. The applicant is not able to identify from experience the substances to which he has any subjective reaction other than to say that car exhaust fumes make him feel lethargic and drowsy.

8. Dr Sharp saw the applicant for the first time in October 1984. The applicant gave a four and a half month history of distinct bouts of throat soreness, hoarseness, weakness in limbs, lethargy and a persistent headache for three or four days at a time recurring at monthly intervals. The applicant had also had a recent bout of fever requiring two days in bed. On examination, Dr Sharp noted nasal congestion, mild tonsil enlargement and typical "allergic shiners" (dark rings under the eyes). Allergy skin tests revealed a weak positive reaction to house dust mites only. Serum proteins and immunoglobulins were normal. Dr Sharp made a tentative diagnosis of sensitivity to a contaminated humidified central air system (humidifier fever) which he thought was related to the work environment at the WTC. By February 1985, the symptoms had cleared.

9. In March 1990, when Dr Sharp next saw the applicant, he noted mild allergic shiners with slight puffiness under the eyes and nasal congestion. On that occasion, the applicant was also complaining of limb and back soreness. At that time, Dr Sharp thought the pattern of the applicant's symptoms were consistent with humidifier fever, "due almost certainly to a contaminant present in the cold water humidified, central air system". In a medical certificate dated 23 May 1990, he wrote: "Persistent throat inflammation due to air conditioning and back pain". Further certificates were issued.

10. In July 1990, Dr Sharp's conclusions changed. Until then, Dr Sharp considered the applicant was suffering from humidifier fever related to the air conditioning system. However when investigation and testing of the air conditioning system at the WTC found that the system did not incorporate a cold water humidifier nor an evaporative cooler, the diagnosis of humidifier fever was virtually ruled out. However, he considered there was a possibility that the pattern of upper respiratory symptoms was connected with a sick building syndrome. Dr Sharp, while acknowledging that the subject of chemical reaction is not primarily in his field, was finally of the view that the applicant had a systemic form of chemical intolerance associated primarily with fume exposure.

11. The applicant consulted Dr Ots on three occasions in mid 1991 on referral from a locum of Dr Oei. Dr Ots considered that the applicant suffered from a severe anxiety depressive reaction to work which started in 1984 and came to clinical significance in September 1989. He prescribed anti-depressant medication (which the applicant refused to take) and thought the applicant's fears about being moved back to the WTC were realistic. He certified the applicant unfit for work.

12. Dr Rose examined the applicant in March 1991 at the request of the respondent. In a report dated 28 March 1991 he wrote that the applicant was not suffering from any psychological condition or psychiatric illness and from that standpoint had no incapacity for work.

13. Dr Walton, who examined the applicant on 19 March 1992 also at the request of the respondent, considered that the applicant was not suffering from any form of psychiatric disorder but was somewhat hypochondriacal. He believed the applicant was resentful of being transferred against his will from a place of employment he found agreeable, to a place he perceived as putting him in a situation of medical hazard. Dr Walton saw no reason why the applicant could not return to full-time employment.

14. In March 1991, the applicant consulted Dr Little, a physician in the areas of allergy and immunology. The consultation with Dr Little came about after the applicant read an article in Readers' Digest about sick building syndrome and thought it applied to him. He made some further inquiries and was given the name of Dr Little. On examination, Dr Little noted minor inflammation of the throat and some nasal congestion. Allergy skin tests were normal except for a weak reaction to aspergillus, a common indoor mould. The history he obtained from the applicant was suggestive of intolerance to certain chemicals, or expressed another way an enhanced susceptibility to certain chemicals in particular buildings. He believed the applicant's history was consistent with chronic fatigue syndrome in that the syndrome can be associated with adverse reaction to foods or chemicals. The applicant did not have any history of food intolerance and food tests did not reveal anything of significance.

15. Dr Little conducted a series of tests he called environmental controlled tests and a double blind test to evaluate immune function. For these Dr Little admitted the applicant to Ainslie Hospital where a ward had been specifically modified to effectively exclude exposure to any chemicals the applicant would normally encounter in everyday life. The tests were conducted at Ainslie Hospital in June 1991. Measured doses of particular chemicals were administered to assess any toxic reaction.

16. The tests were performed by injecting at a regulated rate a solution of the test chemical via a syringe pump onto a hotplate which vaporises it in a mixing chamber. Pure air is also separately introduced. After mixing, it leaves the mixing chamber and is delivered by tube to a test booth in which it is allowed to equilibrate for a minute. The patient then enters the booth (basically the size of a telephone booth) where he remains for a test period of 15 to 20 minutes. The booth has an air filter system designed to remove contaminants and trace chemicals.

17. The patient is observed for 8 to 12 hours afterwards. Dr Little gave evidence that when the applicant was tested, the testing process was relatively new, and that some alterations to test procedures have subsequently been made. These include patients being asked to complete questions independent of anyone being present and asking the questions.

18. Ratings are given under the following symptom headings:

* Headache or Lightness

* Myalgia

* Fatigue

* Nasal Symptoms

* Abdominal Distension

* Bloating

* Poor Concentration

* Sleep Disturbance

* Depression

* Cold Intolerance

* Sore Around Eyes

* Sore Throat

* Itch Trunk

* Pain Back/Legs"

19. The ratings scale starts with "good", meaning no response to the chemical substance. It then has four other categories to indicate the intensity of any reaction to the substance. These categories are "slight", "mild", "moderate" and "severe". They are numbered from 1-4 to indicate the patient's strength of response to the substance. Several nurses were involved in administering the tests and in subsequently eliciting subjective ratings from the applicant.

20. Dr Little explained the procedure as follows in cross-examination (Tr. p 231-32):

"And what I am asking you is in relation to the symptom rating sheet

for him, can this tribunal be satisfied when it comes to look at these

results that those figures that appear in those tables are based upon

what the patient has rated his own health?---Yes.

Or is it a combination of his ratings and a nurse assessment?---Well,

we did change the system - the exact date of change was, I believe,

subsequent to this, where we only allowed the patient to make a rating

without reference to any proceeding ratings and they did it without

questions.

Doctor ---?--- But at that stage I think it was by response to

questions by the nursing staff.

Well the answer is, it is the patient?---I believe so, at that stage.

And the patient then also picks a figure from one to four?---As well

as he is able.

From zero to four?---Normally, yes."

21. The double blind test, Dr Little explained, is where the patient does not know whether he received a chemical vapour or a blank (water). The point of this test is to note the patient's reaction to see whether there is a real basis for the patient's subjective symptoms. A double blind test was performed using formaldehyde. The results of the double blind test were not conclusive.

22. Dr Little in a report (T67), wrote that testing showed the applicant to be adversely affected by vehicle exhaust, components of polyester fabrics, components of rubber, and of polyurethane foam, nitrogen dioxide, formaldehyde (omitted from particle board and textiles), toluene (a widely used solvent) and phenol.

23. While Dr Little thought the applicant's condition was a chronic fatigue syndrome disorder, he wrote as the final diagnosis in the Ainslie Hospital patient records "anxiety neurosis" which he conceded in cross-examination was a separate diagnosis. Dr Little stated that this was done for medical benefit purposes and after consultation with the Health Department. In the result, the Tribunal was left in some doubt as to the final diagnosis of the applicant's condition.

24. Under cross-examination, Dr Little agreed that exposure in other situations to the chemicals to which an adverse reaction was found, was likely to contribute to the applicant's symptoms. In response to a question from the Tribunal, he agreed that the kind of exposure the applicant may have got from air conditioning could not be duplicated by the testing undertaken at Ainslie Hospital.

25. Dr Brand examined the applicant on 25 May 1990 and 24 July 1992 for the respondent. On physical examination on both occasions, the applicant had a healthy appearance. Skin sensitivity tests to a number of common inhalant allergens were carried out at the first examination with negative results. He disagreed with the diagnosis of chemical sensitivity or chronic fatigue syndrome (if indeed those conditions exist), as Dr Brand was sceptical about the very existence of these conditions. Dr Brand was critical of the tests performed by Dr Little - he believed they were inappropriate and had no scientific validity. He said of the applicant's symptoms:

"Finally my analysis of his symptoms are that they are supratentorial

i.e. they are engendered in the psychosomatic way and not due to any

inflammatory condition either infective, traumatic, neoplastic or

allergic or for that matter chemically inspired."

26. Before the Tribunal, Mr Ingram, Counsel for the applicant contended that the chronic fatigue syndrome from which it was said the applicant suffered or the aggravation of that ailment was, due to the applicant's chemical sensitivity, contributed to in a material degree by exposure to chemicals in his place of employment at the WTC. Alternatively, the applicant's chemical sensitivity was enhanced by reason of chemical exposure in the workplace which constituted an aggravation of the condition of chemical sensitivity which in turn lead to chronic fatigue syndrome resulting in a continuing incapacity for work.

27. In all of this, it is necessary not to lose sight of the fact that the correctness of the initial determination of liability is not in issue. It was not subject to challenge in the reviewable decision. The presentation of the case for the applicant necessarily involves considering the facts surrounding the initial determination of liability as well as a consideration of the facts in support of the claim for ongoing compensation. As part of his case, the applicant is asking the Tribunal to consider his allergy problem in the context of chemical exposure in the workplace and the consequences said to flow from that.

28. Overall, it seems reasonably clear from a reading of the symptom rating sheets that the tests in Ainslie Hospital did not show any marked chemical sensitivity, as about seventy five per cent of the recorded ratings were "good" (no response). Dr Little conceded as much (Tr p 233).

29. Quite apart from that the Tribunal has reservations about the validity of the test procedures relying as they do heavily on the subjective responses of patients. Dr Little's answer (Tr p 233) "I think that he (the applicant) may have rated things higher than they were although it is not easy to be certain on that", illustrates the dilemma as to the weight to be attached to the results.

30. It should also be noted that the points on the ratings scale are not conceptually distinct and do not, therefore, provide for equal intervals between response categories as the approximating numbers would indicate.

31. The fact that questions were not asked in the same way casts some doubt on the reliability of the ratings that were obtained. The ratings rest entirely on the subjective report of patients. We accept that this is necessarily common in research of this nature and that the results are compared with the observed physical responses of patients. Nevertheless, we find it somewhat surprising that there is apparently no attempt to test the credibility of patients' responses by, for example, a double-blind test that, in fact, involved no chemical substance being introduced into the booth.

32. Only one double-blind test was used with regard to the inhalation of chemicals. A greater number of double-blind tests, including a bogus test, would allow for a better assessment to be placed on the test results.

33. Another problem in evaluating the effect of specific exposures was the action of the applicant in breaking his diet on more than one occasion during the test period. This did not assist the attempts to maintain a controlled environment for the conduct of the tests.

34. Further difficulties with the applicant's case are immediately apparent. In the first place, there was no evidence of the presence at the WTC, where the applicant worked in an office environment with usual office equipment and furniture, of the agents used in the testing process by Dr Little in quantities of any unusual significance. The chemicals to which it is said the applicant is reactive - urban pollutant chemicals such as nitrogen dioxide, vehicle exhaust emissions, toluene, and formaldehyde are encountered in daily living whether at work, home or leisure for someone living in an urban environment like Melbourne.

35. For instance, the applicant possesses more than one motor car and his new home apparently contains everyday household furniture and fittings; see also report of Kilpatrick and Associates Pty. Ltd. (Exh 3) in which the residence is described as 'a typical modern brick house'. No chemical-like odour was found in the house or garage in which some leftover hairdressing chemicals from a hairdressing business conducted by Mrs Milenkovic until 1988 and household detergents (removed from the house) were stored.

36. Included in the T documents (T35) is a report by N.A. Arnold and Associates, Building Health management consultants of the inspection of buildings C and D, 4th and 5th Floors, WTC which concluded as a result of an investigation of the heating ventilation and air conditioning system that there was no significant levels of indoor pollutants and that there was an adequate fresh air supply. Although that report was made in reference to floors 4 and 5 some handwritten additions suggest that part of building E was surveyed. However there is no evidence to suggest that investigations were made on floor 3, building E where the applicant worked. The relevance of the report to these proceedings was not explained to the Tribunal and accordingly, no regard is had to it or to the conclusions of Amcosh Occupational Health Services based on that report.

37. It is further noted that tests conducted in April 1992 by N.A. Arnold and Associates on air quality in building E revealed satisfactory air quality. The investigation was done by monitoring for airborne concentration of dust, carbon dioxide, carbon monoxide, formaldehyde and bacteria/fungi. Temperature and humidity were also examined. That survey was done in April 1992, and is not evidence of satisfactory air quality prior to the time of the survey. It should also be said that there was no evidence presented which suggested environmental factors were present in 1988/90 which were not present when the testing was undertaken in 1992.

38. Medical reports noted that the applicant had a consistent background symptom of sore throat. For many years the applicant has been a smoker - 20 cigarettes per day, recently reduced to 10. In September 1990, Dr Sharp noted improvement in symptoms after ceasing smoking for a month or so and increasing once more upon his resuming smoking. A Commonwealth Medical Officer suggested that his persistent sore throat may have been related to cigarette smoking. When reviewed by Dr Sharp in February 1991, at a time when he was out of the work environment for about four months, the applicant complained of mild nasal stuffiness and intermittent throat discomfort. Dr Little wrote (26 April 1991):

"It also should be mentioned, however, that he must cease smoking and

that he may be sensitive to chemicals encountered away from the work

site as he is currently not symptom-free, although improved, when not

at work."

39. Later (8 July 1991), Dr Little expressed concern that the applicant was still smoking. In cross-examination he agreed that the symptom of sore throat was not one upon which much weight could be placed, as that was a background symptom "more or less independent of anything else which has happened".

40. The test chemical toluene is a solvent found in certain glues and paints. Dr Little acknowledged it was likely to be found on building sites yet there was no suggestion of any symptoms while the applicant was building houses, notwithstanding Dr Little's evidence that the applicant had an enhanced susceptibility to toluene.

41. In commenting on the toluene test at Ainslie Hospital, Dr Little wrote:

"These tests indicated a worsening of certain cognitive processes

following the chemical challenge and supported a diagnosis of an

enhanced susceptibility to chemicals."

42. However the neuropsychologist, Ms Simpson would not appear to support Dr Little's conclusion of "a worsening of certain mental processes" when following the toluene test she wrote (Exh F):

"All test results were within the normal range. There was some

elevation of mood and a mild decline in visual memory performance 3

hours post challenge. The changes did not represent a significant

change but could affect his performance efficiency over time."

43. Dr Little was unaware that the applicant had been involved in building construction in 1988. In that year, the applicant became a registered builder intending to become involved in property development. With the help of sub-contractors he built the house in which he is now residing and the house next door, the latter of which he has since sold. The applicant's role in the construction of the houses was predominantly supervisory but he was actively involved in the foundation work, flooring, tiling and concreting. Prior to registration as a builder, the applicant had assisted friends in building houses.

44. In July 1989, the applicant, in partnership with his wife, commenced a transport business. A driver was employed. That business which had one truck and held a contract to deliver hot water service units, was conducted for about a year until the manufacturer terminated the contract.

45. The applicant has an intermittent history of nasal congestion and sore throat, the latter of a more persistent nature. On the state of the medical evidence before us we are left in doubt as to the appropriate diagnosis of his condition. In so far as it is necessary to do so for the purposes of a claim for an ongoing entitlement to compensation, we are satisfied that the diagnosis of chronic fatigue syndrome in the nature of an enhanced susceptibility to chemical exposure has not on all the evidence before us, been established.

46. In our view, the evidence of Dr Little does not in the absence of any evaluation of the work environment at WTC take beyond a possibility that whatever chemicals the applicant was sensitive to their presence at the place of his employment "contributed in a material degree" to his condition. Dr Little conceded as much as the following exchange reveals during cross-examination by Mr McInnes, Counsel for the respondent (Tr p 163):

"All right, so it is just a coincidence, though, that it happens at

this particular work place?---Well, the only thing that I can say in

that regard is that it is difficult to be able to make a statement but

if he were sensitised the degree to which he was affected may depend

upon the level of exposure he encountered. Now there is, I suppose,

the possibility that whatever he was sensitive too, he incurred a

higher exposure at the Trade Centre than he encountered anywhere else.

All right?---Now that is a possibility, that's all you can say.

That is all you can say. But you cannot say that without properly

looking at the Trade Centre and knowing what is there?---You can't be

without a detailed evaluation."

47. The applicant's symptoms in 1989/90 were in our view, complicated by the stresses in his life at that time. The undoubted resentment at the decision to transfer him back to the WTC following problems at work, allied to concerns about his career prospects and health, financial pressures in the form of heavy losses on property investments in 1989 and the closure of a profitable small transport business, and the recurrence of the ill health of his spouse were all stressful events in one way or another. The circumstances of his referral to Dr Ots were not before the Tribunal, as the Tribunal did not have the benefit of evidence from his general practitioner at the time or at least access to the clinical notes. The applicant, for his part, related the onset of his nervous condition to the internal investigation in September 1989 (see Dr Ots' report Exh 1). The evidence leads us to the view that these non compensable stress factors either separately or in combination did adversely impact upon the applicant's general well-being and in the prolongation of his symptoms rather than the work environment initially said to be the air conditioning, later chemical exposure which the applicant put forward as the source of his health problems. It was not put on behalf of the applicant that he was suffering any psychiatric illness or disorder related to work.

48. For these reasons, we are not satisfied that any incapacity for work on and from 16 July 1990 is work related.