Published: 06 September 2013
Author: Ryan Carlisle Thomas
Breakthrough decision recognises possible link between mobile phones and office equipment and injury
A scientist working for the CSIRO has been successful in overturning a decision by Comcare refusing him compensation for an illness he claimed had been exacerbated by exposure to electro magnetic radiation while at work.
In a decision handed down by the Administrative Appeals Tribunal, (David McDonald v Comcare), Deputy President Constance found that Dr McDonald's condition, which his doctors diagnosed as an intense sensitivity to electro magnetic fields (EMF), was either aggravated by increasing exposure to the radiation emitted by office equipment and/or that he had a genuine belief that his condition was being aggravated.
This is the first time to our knowledge that an Australian tribunal has found in favour of an employee claiming to have suffered workplace injury as a result of having been exposed to the types of radiation emitted by items such as desktop computers and mobile phones.
The case was won on review from a decision by the Commonwealth's workplace injury agency Comcare not to compensate Dr. David McDonald for his EMF hypersensitivity disorder which he argued had been aggravated by his employment with the CSIRO.
The decision is groundbreaking because it appears to be the first time that a legal decision had been handed down recognizing the possible link between exposure to electro magnetic fields and workplace injury.The implications of the finding are that it admits the possibility that exposure to electro magnetic fields can cause injury.
While this judgment does not go so far as to open the floodgates to compensation for all types of injury claims brought on the basis of electro magnetic field (EMF) exposure, it does offer hope to some sufferers who until now have had their compensation claims rejected by Comcare, and indeed other agencies such as WorkCover.
However, litigation in this area must be approached with caution. In Dr. McDonald's case, there was a very long and clear history of EMF exposure and the symptoms suffered by him..
Dr. McDonald was diagnosed as having a heightened sensitivity to electro magnetic fields in 1993, a diagnosis that he had made clear to his new employer when offered a position the following year. At first the CSIRO had assisted Dr. McDonald by providing him with administrative support, which limited his exposure to EMF-emitting office equipment. That assistance however was withdrawn in 2005 when he moved from Hobart to Melbourne leading to an escalation of symptoms such as nausea, fatigue and migraine.
These symptoms were exacerbated by "trials" conducted by the CSIRO's rehabilitation branch measuring his reaction to various levels of exposure.
Over time, Dr. McDonald's condition deteriorated to such an extent that he would become ill within minutes each time a computer was switched on, suffering from migraine and nausea that would persevere for several days. He was eventually medically retired by his employer because he was not able to perform his duties.
Dr McDonald's employer was aware, prior to his employment, that he had been diagnosed with a condition of heightened sensitivity to electro magnetic radiation and ultimately there was strong corroborative evidence that Dr McDonald did suffer symptoms when exposed to it.
The decision was reached by the tribunal despite expert evidence provided on behalf of Comcare that such low frequencies and type of electro magnetic fields would not lead to such symptoms.
In his decision, Deputy President Constance found: "on the balance of probabilities that Dr McDonald has suffered either an aggravation of his sensitivity to EMF; or an aggravation of his symptoms by reason of his honest belief that he suffers from the condition of EMF sensitivity and that his exposure to EMF associated with the trials has worsened his sensitivity."
"The real issue between the experts was the diagnosis of the cause of Dr McDonald's symptoms. Having found that the symptoms are in fact being experienced by Dr McDonald and that those symptoms have been made worse by his employment, it is immaterial as to whether those symptoms have a determinable pathological cause or whether the cause is purely psychogenic," he said.
Further, Deputy President Constance was satisfied that Dr McDonald suffered from chronic adjustment disorder with depressed moods and that this condition is an ailment within the meaning of subsection 4(1) as it is properly described as a mental disorder. He was satisfied that Dr McDonald's ailment had been contributed to, to a significant degree by Dr McDonald's employment with CSIRO.
He also found that the migraines, which immediately followed exposure to EMF, were contributed to by Dr McDonald's employment to a significant degree.
Under compensation law, injury claims might be upheld where the worker has a "reasonable perception" that the injury has arisen in the course of employment, regardless of whether there was a "real" contribution from work.