CSIRO worker disabled by wireless signal tests awarded compensation
The Administrative Appeals Tribunal (AAT) has approved worker compensation for a man who claims he can no longer work due to complete disability from sensitivity to wireless signals, despite it not being a formally recognized medical condition.
The Tribunal said former Commonwealth Scientific and Industrial Research Organisation (CSIRO) employee Dr Alexander McDonald was entitled to compensation for his electromagnetic hypersensitivity (EHS).
“The definition of ailment does not require that it be a condition which fits within a particular diagnostic criteria,” AAT Deputy President, Mr JW. Constance ruled in the case, handed down on 28 February 2013.
The Tribunal found that Dr McDonald had suffered a workplace injury when his alleged sensitivity to electromagnetic frequencies (EMF) from office equipment, was made worse after the CSIRO subjected him to a number of trials using specially designed office equipment – such as a computer enclosed in a faraday cage – in an attempt to allow him to work in a modern office environment.
“In this case the perceptions, if any, of Dr McDonald are that the disorder (and therefore the ailment) from which he suffers is caused by exposure to EMF and that the aggravation of the disorder was caused by his exposure to EMF during the trials carried out by his employer,” Mr Constance ruled.
“For these reasons I determine that Dr McDonald has suffered an aggravation of an ailment that was contributed to, to a significant degree, by his employment by CSIRO.”
Dr McDonald was employed as a senior research scientist at CSIRO in 1994 although he told the selection panel that he was ‘diagnosed’ with sensitivity to EMF by his GP in 1993. Due to his existing aliment the CSIRO initially provided him with administrative support so that he could limit his exposure to computers while at work.
However, in 2005 his administrative support was withdrawn due to a workplace restructure which required him to use computers. For two weeks he claimed to experience nausea, fatigue and very poor concentration. On the advice of his doctor, he was provided with part-time administrative support, which allowed him to continue to perform his duties.
In 2006, the CSIRO asked Dr McDonald to trial various pieces of electronic equipment including a Blackberry, a desktop computer enclosed within a Faraday cage and an electronic projector. However, Dr McDonald claimed he became ill within minutes each time these devices were switched on. He experienced nausea and headaches and suffered severe migraines 2-12 hours later. He felt unwell for several days after each attack. He claimed his symptoms were worse than they had been before the trial commenced.
“Dr McDonald has experienced heightened sensitivity to EMF, with the above immediate symptoms returning when he is in close proximity to functioning computers (especially laptops), new-generation mobile phones, WIFI networks and high-voltage power lines. He now also experiences this heightened sensitivity to his Blackberry device,” Dr McDonald’s GP reported after the trails.
His GP recommended that the trials cease and administrative support continue until the release of new technology, which might alleviate his symptoms.
Contrary to internal OH&S advice, in 2007 CSIRO ceased to provide Dr McDonald with any form of administrative support and again required him to trial the use of various electronic devices. After the second set of trials, Dr McDonald claimed he became so ill that he could not return to work.
Consequently, he filed a workers compensation claim that the electronic trials aggravated his electromagnetic hypersensitivity and caused his migraines resulting in a chronic adjustment disorder with depressed moods and this became a permanent impairment.
Comcare, the Australian government agency in charge of enforcing worker safety laws, refused each claim, arguing that EHS is not an ailment. The case was brought to the Administrative Appeals Tribunal of Australia, which overturned Comcare’s decision on all claims except the claim of permanent impairment.
“I am satisfied that from about 1993 Dr McDonald has suffered from an ailment, albeit one which may not be the subject of a recognized diagnostic label. The condition he has described is that of suffering nausea, disorientation and headaches. It is a condition which he believes was caused by exposure to electromagnetic fields,” Mr Constance said.
This condition is properly described as a derangement of physical or mental health or function and therefore is a physical or mental disorder or defect within the definition of ailment under the law Mr Constance explained.
Under Australian law where an injury to an employee results in a permanent impairment, Comcare is liable to pay a lump sum compensation as well as a payment for pain and suffering, therefore the decision to not award the claim of permanent impairment is significant.
“I am satisfied that Dr McDonald has not undertaken all reasonable treatment for the condition from which he suffers. I am satisfied also that there is a likelihood of improvement of his condition if such treatment is undertaken. For these reasons I am not satisfied that this impairment from which Dr McDonald suffers is permanent,” Mr Constance ruled.
Although the Tribunal did not recognize electromagnetic hypersensitivity as a medical condition, Mr Constance cited a number of legal precedents to support his reasoning that this was not required.
In Wiegand v Comcare Australia the Federal Court stated:
“If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled.”
In Commonwealth v Beattie the Full Court of the Federal Court said:
“It is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place.”
The World Health Organization (WHO) has concluded that while the symptoms of EHS are real for the individuals involved there is no scientific basis to link the symptoms to exposure to electromagnetic fields.
The WHO convened a workshop on this topic in Prague in October 2004 to review what was known about EHS and develop advice to help people with the reported symptoms. A key outcome was the WHO fact sheet that concludes:
“EHS is characterized by a variety of non-specific symptoms that differ from individual to individual. The symptoms are certainly real and can vary widely in their severity. Whatever its cause, EHS can be a disabling problem for the affected individual. EHS has no clear diagnostic criteria and there is no scientific basis to link EHS symptoms to EMF exposure. Further, EHS is not a medical diagnosis, nor is it clear that it represents a single medical problem.”
The backgrounder goes on to provide advice to EHS individuals, physicians, governments and researchers. For physicians it states:
“Treatment of affected individuals should focus on the health symptoms and the clinical picture, and not on the person’s perceived need for reducing or eliminating EMF in the workplace or home.”
The WHO backgrounder also says there is some evidence to show negative expectations could be responsible for the symptoms experienced and said:
“There are also some indications that these symptoms may be due to pre-existing psychiatric conditions as well as stress reactions as a result of worrying about EMF health effects, rather than the EMF exposure itself.”