Australia: Unreliable Historian Exposed In Chemical Exposure Claim

Last Updated: 23 April 2009
Article by James McIntyre and Geoffrey Miles

In Baker and Telstra Corporation Limited and Comcare [2008] AATA 1136, the Administrative Appeals Tribunal considered an application for a review of two decisions which denied Mr Baker's claim for occupational asthma. The employee also claimed to suffer from a depressive disorder which was contributed to by exposure to dust and exacerbated by his occupational asthma.

Mr Baker worked for Telstra's predecessors or related entities intermittently between 1970 and 1975 and permanently from 1976 to 1988. In 2002, Mr Baker lodged a claim for compensation for numerous chest complaints, which he claimed to have suffered as a result of his employment. The claim was rejected in December 2003 and that rejection was affirmed on reconsideration in June 2004. In May 2006, Mr Baker lodged a similar claim with Comcare. This claim was denied, and the denial of liability was affirmed by reviewable decision issued in February 2007. Proceedings for review of these reviewable decisions were then commenced in the Tribunal.

It was not disputed that Mr Baker suffered from asthma. However, the symptoms of occupational asthma and constitutional asthma are identical, and can only be distinguished by a close temporal relationship between the symptoms and exposure to asthmagenic agents. Consequently, it was essential that the history which Mr Baker provided the medical experts who diagnosed him with occupational asthma was accurate and reliable.

Inconsistencies In Evidence

Mr Baker submitted that there was a temporal relationship between his employment and his symptoms in view of the following matters:

  • His lengthy and consistent exposure to formaldehyde, weed killers, asbestos, unknown dusts, epoxy resins and glues during his employment with Telstra.
  • A pattern of illness and chest complaints soon after his first exposure to these substances.

In relation to his level of his exposure, a number of inconsistencies were exposed. Between 2001 and 2003 Mr Baker was examined by Dr Allen, Dr Brown and Dr McKeon. Both Dr Brown and Dr McKeon's reports excluded an occupational connection to his symptoms, while Dr Allen did not make a diagnosis of asthma. It was on the basis of Dr McKeon's report that Telstra rejected Mr Baker's original claim. Notably, Mr Baker only informed the medical experts of his possible exposure to asbestos, and not to gases and other toxic substances. It was only after Mr Baker undertook research into the causes of asthma and bronchitis that he claimed to have been exposed to anything other than asbestos.

After Telstra's decision to deny liability was affirmed in June 2004, Mr Bakers' union suggested that he see Dr Maurice Heiner as he 'might support a connection between [Mr Baker's] symptoms and [his] exposure to dust ...'. When Mr Baker was examined by Dr Heiner, Mr Baker gave (for the first time) a history which included possible exposure to gases, other dusts, soldering products and chemicals.

Mr Baker's evidence in chief was contained in an affidavit setting out the extent of his exposure to asthmagenic agents with reference to particular tasks and periods of time. However, as employment records cast doubt on Mr Baker's claimed levels of exposure. Consequently, the Tribunal noted that, at best, Mr Baker was reckless in presenting this information in his affidavit without equivocation or conceding that his evidence was an estimate of his exposure.

The evidence also cast doubt on his claim that he had a pattern of illness and chest complaints. Prior his claim for occupational asthma, Mr Baker had commenced proceedings for a knee and back injury suffered in 1987 while working for Telstra. During these proceedings, Mr Baker claimed that he had enjoyed good health and an active social and sporting life prior to the incident, and did not report any unusual coughs, colds or influenza to medical experts. Further, his inconsistent recollections of the accident in which he injured his knee exposed a propensity for giving tailored accounts to doctors.

In 2001, Mr Baker again consulted a solicitor, this time in relation to an injury suffered when he was a passenger in a bus that began moving before he had a chance to take his seat. In pursuing that claim, Mr Baker consulted a number of doctors who obtained a history that Mr Baker had an active social and sporting life, which he was unable to pursue since the 2001 accident. One doctor reported that Mr Baker denied any 'significant past medical history'.

The Tribunal also noted that sick leave records from Telstra did not suggest any unusual level of absence during Mr Baker's period of employment. This was in stark contrast to the evidence given by him before the Tribunal.


As the diagnoses of Dr Heiner and Dr Lader, another doctor seen by Mr Baker, were based on patient histories inconsistent with those originally provided to Dr Allen, Dr Brown and Dr McKeon, the Tribunal could not be satisfied that the evidence supporting a link between Mr Baker's occupation and his asthma was reliable.

This case illustrates the importance of obtaining all relevant medical records where there has been a significant interval of time between the alleged injury and a claim for compensation being made. In relation to chemical exposure claims, the decision also demonstrates the necessity of reviewing employment records to verify allegations in relation to the extent of an employee's exposure.

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This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.

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