DEFENCE COMPENSATION INSTRUCTION - NO. 17
Military Compensation Scheme - Safety Rehabilitation and Compensation Act 1988
Subject
Claims For Chronic Fatigue Syndrome
1.The purpose of this Defence Compensation Instruction is to outline the policy concerning claims for Chronic Fatigue Syndrome (CFS).
2.CFS may be referred to as:
a.myalgic encephalomyelitis (ME);
b.post viral fatigue syndrome (PVFS);
c.chronic fatigue and immune dysfunction (CFIDS);
d.post infectious fatigue syndrome (PIFS);
e.neurasthenia;
f.fibrositis myalgia; and
g.by some sectors as "Yuppie flu".
Background
3.According to experienced researchers, the chief characteristics of CFS are:
a.symptoms of marked and prolonged fatigue;
b.fatigue which is of new onset;
c.symptoms lasting more than six months; and
d.up to 50% reduction in activity.
4.Research has indicated that there is widespread agreement within the medical profession that there is no specific diagnostic test for CFS and that it does not represent a specific disease. The cause of the condition is unknown and there is much disagreement about what it constitutes.
5.Administrative Appeals Tribunal (AAT). A recent AAT ruling has now provided guidance in dealing with these claims.
6.The case of Swanson and Comcare (No Q94/396) involved a claim that the employee's work environment (mainly the air conditioning and formaldehyde 'off-gassing' from furniture) aggravated his CFS. His symptoms were non-specific, being stated as fatigue, difficulty concentrating, skin rashes, poor memory and abdominal pains.
7.The AAT affirmed, in unequivocal terms, Comcare's decision to reject liability. Its conclusions were reached after looking at medical evidence indicating that CFS is an unknown condition for which there are no diagnostic tests. Further, there was nothing to suggest that Mr Swanson was suffering from an organic disease.
Policy
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:
a.New onset fatigue lasting longer that 6 months with a 50% reduction in activity, and
b.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:
a.Low grade fever (ie 37.5 to 38.6 C);
b.Sore throat;
c.Painful cervical or auxiliary (armpit) lymph node enlargement or disease;
d.Generalised muscle weakness;
f.Myalgias (muscle pains);
g.Fatigue lasting 24 hours or more after moderate exercise;
h.Headaches;
i.Migratory arthralgia (joint pain);
j.Sleep disturbance (hypersomnia or insomnia);
k.Neuropsychological complaints (one or more of photophobia, absent/depressed vision, such as visual scotoma, forgetfulness, irritability, confusion, difficulty concentrating, depression); and/or
l.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.
11.Specific research into CFS, which has been conducted on Comcare's behalf by Dr Peter Grant and has involved select studies worldwide, has suggested that any assertions that the onset of the condition was a result of an infection acquired in the workplace should be treated as speculative unless:
a.The client has had serum tests to indicate recent infection with a viral agent, and
b.There is clear evidence of a widespread epidemic infection within the workplace of the type of viral agent infecting the employee.
12.There is no evidence that heredity, genetic or developmental factors play a part in the onset of CFS. Nor is there any consistent evidence that the condition is associated with particular types of occupation, lifestyle, mental or physical stress or pre-existing psychiatric illness.
13.As these findings and recommendation are impossible to prove or disprove, in the absence of any other evidence, it cannot be said that on the balance of probabilities, CFS can generally be contracted in the workplace.
14.The Federal Court case of Comcare v Mooi (QG 75 of 1995, Drummond J) has held that:
"there would be no need for that ... (elaborately defining 'injury' in section 4) ... if s 14 (1) makes compensable any condition or circumstances in which an employee finds himself, so long as it arose in the course of his employment and so long as it interferes with his capacity to work ... before an employee can have any entitlement to compensation under s 14, one of the things he must show is that he has suffered something that can be regarded as an injury or something that can be regarded as a disease."
15.Aggravation of CFS. Given current findings on CFS, it is clear that the aggravation of this condition will also be difficult to substantiate. This is again supported by the decision made in the Swanson and Comcare AAT case, which involved the aggravation of CFS.
16.Assuming that symptoms as outlined at paragraphs 8, 9 and 10 are present (including fatigue, headaches and neuropsychological complaints), there may be grounds to show that the condition itself is affecting the employee's work, as distinct from the employee's work causing or contributing to any aggravation.
17.Procedure. Claims for the contraction and aggravation of CFS need to be examined very carefully. Despite any supporting evidence provided by treating doctors, it is essential that specialist medical evidence be sought from a qualified immunologist or another specialist in the field.
18.It is most unlikely that claims for CFS, including its aggravation, will succeed unless it can be established that the causal infection has been contracted in the workplace and is clearly linked to an epidemic of the same infection.
19.It is to be made clear in correspondence to clients claiming CFS that the Department is not questioning the general existence of the condition, but rather the connection between the onset or aggravation of the condition and work needs to be established.
20.Any enquires concerning the information contained in this DCI should be directed to Ann Finlay on (06) 2668636.
[Original signed by]
CLAUDE NEUMANN
ASCRAS
31 December 1996