Butt and Military Rehabilitation and Compensation Commission (Compensation)

[2022] AATA 4690

Butt and Military Rehabilitation and Compensation Commission (Compensation) [2022] AATA 4690 (23 December 2022)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2021/1840

Re:James Edward Butt  

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

Decision

Tribunal:Senior Member Dr Linda Kirk

Date:23 December 2022

Place:Sydney

The Reviewable Decision is set aside and substituted with a decision that the Applicant’s skin cancers are compensable injuries under section 14 of the Act.

...................................[SGD].....................................

Senior Member Dr Linda Kirk

Catchwords

MILITARY REHABILITATION AND COMPENSATION – defence-related claims – whether Tribunal has jurisdiction to consider claims not specified in original claim form – whether employment contributed to a material or significant degree to the injury – solar keratoses (skin cancers) – where onset of cancers may be after significant latency – history of sun exposure over lifetime considered – decision set aside and substituted.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)

Cases

Comcare v Power (2015) 238 FCR 187

Comcare v Sahu-Khan [2007] FCA 15; 156 FCR 536
Lees v Comcare [1999] FCA 753

Portors v Comcare [2018] FCA 914

REASONS FOR DECISION

Senior Member Dr Linda Kirk

23 December 2022

1. James Edward Butt (‘the Applicant) was born in 1942.[1] The Applicant enlisted in the Citizens Military Forces (‘CMF’) on 5 October 1960 and was discharged on 20 January 1966.[2]

   [1] Exhibit R1, T1.

   [2] Exhibit R1, T3.

2. On 23 February 1996, the Applicant lodged a claim for compensation under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (‘the Act’) for Solar Keratoses (Face, Ears, Shoulders) (‘skin cancers’), Bunions (Feet), Chaffing Rash (Groin), and Haemorrhoids (Backside) (‘the claimed conditions’).[3]

   [3] Exhibit R1, T8, 25.

3. On 30 June 1997, a delegate of the Military Rehabilitation and Compensation Commission (‘the Respondent’) determined that the Applicant was not entitled to compensation for the claimed conditions (the Determination’).[4]

   [4] Exhibit R1, T18.

4. On 3 September 1997, a delegate of the Respondent affirmed the Determination on the basis that the likely impact of genetic disposition, childhood sun exposure and other adult sun exposure were the cause of the Applicant’s skin cancers, and concluded that that his CMF service could not be regarded as the probable cause of the conditions.[5]

   [5] Exhibit R1, T20.

5. On 23 December 2020, the Applicant was advised that to seek reconsideration of the Determination he would need to provide new medical evidence or a new contention about the cause of the skin cancers.[6]

   [6] Exhibit R1, T26.

6. On 18 January 2021, the Applicant requested a fresh reconsideration of the Determination.[7] He annexed a report of Dr Eric Acevedo, general practitioner.[8]

   [7] Exhibit R1, T27.

   [8] Exhibit R1, T27.1.

7. On 10 March 2021, a delegate of the Respondent affirmed the Determination (‘the Reviewable Decision’). The delegate was not satisfied that the Applicant’s service was a contributing factor in the contraction of the skin cancers, and noted the skin cancers were said to be due to genes and lifelong solar exposure, and there would be a minor contribution from his CMF service.[9]

   [9] Exhibit R1, T1.1.

8. On 18 March 2021, the Applicant applied to the Tribunal for review of the Reviewable Decision.[10]

   [10] Exhibit R1, T1.

9. The review application was heard by the Tribunal at a hearing in Sydney on 28 and 30 June 2022. The Applicant appeared by video-link and was represented by his advocates. The following witnesses gave oral evidence and were cross-examined at the hearing.

   ·the Applicant;

   ·Dr Gerard Ingram, Dermatologist

   ·Associate Professor Robyn Saw, Melanoma and Surgical Oncologist

10. The following documents were before the Tribunal:

    ·T-Documents (Exhibit R1);

    ·Clinical Notes of Dr Shenouda dated 20 October 2018 (Exhibit R3);

    ·Report of Dr Ingram dated 28 July 2021 (Exhibit R4);

    ·Report of Dr Ingram dated 05 October 2021 (Exhibit R5);

    ·Report of Associate Professor Saw dated 02 February 2022 (Exhibit A1);

    ·Four Photographs from the Applicant’s Statement of Facts, Issues, and Contention (Exhibit A2);

    ·Applicant’s Statement of Facts, Issues, and Contentions (‘ASFIC’);

    ·Respondent’s Statement of Facts, Issues, and Contentions (‘RSFIC’);

    ·Statement of James Butt, undated, filed 13 April 2022 (‘Statement’);

    ·Medical Reports of Dr Ting dated 25 January 2022 and 22 April 2021;

    ·Medical Reports of Dr Tai Phan dated 18 October and 21 April 2021;

    ·Medical Report of Dr Yeh dated 21 January 2022; and

    ·Histopathology Report of Dr Peduto, undated, filed 19 November 2021.

    LEGISLATIVE FRAMEWORK

11. The liability of the Commonwealth to pay compensation is provided for in subsection 14(1) of the Act. It relevantly provides:

    (1)Subject to this Part, the Commonwealth is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

12. Section 5A of the Act provides a definition of an ‘injury’

    (1) In this Act

    injury means:

    (a)a disease suffered by an employee; or

    (b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

    (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

    but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

13. ‘Disease’ is defined in section 5B as follows:

    1)   In this Act:

    disease means:

    (a)an ailment suffered by an employee; or

    (b)an aggravation of such an ailment;

    that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

    …

    (3) In this Act:

    significant degree means a degree that is substantially more than material.

14. The term “ailment” is defined by subsection 4(1) to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’ and “Aggravation” includes acceleration or recurrence.

15. Subsection 5(1) of the Act defines the word “employee” to mean “a member of the Defence Force”. Subsection 5(2) provides:

    (2)For the purposes of this Act, a person who is a member of the Defence Force is taken to be employed by the Commonwealth, and the person’s employment is taken to be constituted by the person’s performance of duties as such a member of the Defence Force.

16. The Act applies to an injury or an aggravation of an injury that arises out of, or in the course of, the employee’s employment as a member of the Defence Force, which employment occurred after the commencement of the Commonwealth Employees’ Rehabilitation and CompensationAct 1988 (Cth),[11] but before the commencement of the Military Rehabilitation and Compensation Act 2004 (Cth).[12]

    [11] 1 December 1988.

    [12] 1 July 2004 – subsection 4AA(1).

17. Subsection 7(4) of the Act provides that an employee is taken to have sustained an injury, being a disease, or an aggravation of a disease, when, inter alia, the employee first sought medical treatment for the disease, or aggravation.

18. For compensation to be payable in respect of an injury, notice of the injury must be given under the terms of section 53, and a claim for compensation must be made in compliance with the terms of section 54 of the Act.

    54 Claims for compensation

    (1) Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.

    (2) A claim shall be made by giving the relevant authority:

    (a) a written claim in accordance with the form approved by the MRCC for the purposes of this paragraph; and

    (b) except where the claim is for compensation under section 16 or 17—a certificate by a legally qualified medical practitioner in accordance with the form approved by the MRCC for the purposes of this paragraph.

    (3) Where a written claim, other than a claim for compensation under section 16 or 17, is given to a relevant authority under paragraph (2)(a) and the claim is not accompanied by a certificate of the kind referred to in paragraph (2)(b), the claim shall be taken not to have been made until such a certificate is given to that authority.

    (4) The MRCC must cause a copy of any claim it receives to be given to the Secretary of the Defence Department.

    (5) Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.

19. Under paragraph 62(1)(a) of the Act, the Respondent has the power to reconsider on its own motion a determination that it has made, and under section 62 it must reconsider a determination on the request of the claimant:

    62 Reconsideration of determinations

    (1) A determining authority may, on its own motion:

    (a) reconsider a determination made by it; or

    (b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;

    whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.

    (2) A request to a determining authority to reconsider a determination made by it may be made by:

    (a) the claimant; or

    (b) if the determination affects the Commonwealth—the Commonwealth.

    (3) A request for reconsideration of a determination shall:

    (a) set out the reasons for the request; and

    (b) be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.

    (4) On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.

    (5) Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.

    (6) The determining authority or person must decide a request made by a claimant to reconsider a determination within the period prescribed by the regulations.

20. Section 60 defines terms used in Part VI:

    60 Interpretation

    (1) In this Part:

    claimant means a person in respect of whom a determination is made.

    decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.

    determination means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 29A, 30, 31, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.

    determining authority, in relation to a determination, means the person who made the determination.

    reviewable decision means a decision made under subsection 38(4) or section 62.

21. Section 64 provides for review of ‘reviewable decisions’ by the Tribunal:

    64 Applications to the Administrative Appeals Tribunal

    (1) Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:

    (a) the claimant; or

    (b) if the decision affects the Commonwealth—the Commonwealth.

    (3) Despite section 27 of the Administrative Appeals Tribunal Act 1975, a person may not make an application to the Administrative Appeals Tribunal for a review of a reviewable decision except as provided by subsection (1) of this section.

    ISSUES FOR DETERMINATION

22. The issues to be determined by the Tribunal are:

    1)The scope of the Tribunal’s jurisdiction to review the Reviewable Decision – ‘Jurisdiction’.

    2)Whether liability exists under section 14 of the Act in respect of the Applicant’s skin cancers, specifically whether or not they were contributed to, ‘to a material degree’ or ‘to a significant degree’ by the Applicant’s CMF service – ‘Liability’.

    evidence before the tribunal

    Applicant’s evidence

    Early years

23. The Applicant was born in Sydney in 1942 and is aged 80 years.[13] He lived in Balmain and then Balmain East and attended Nicholson Street Public School until 1950, when he moved to Gladesville. He had a war service home there until he got married.

    [13] Exhibit R1, T1.

24. When the Applicant was young and living in the Balmain area, he played a little bit of rugby league with the local school. This was for about half an hour on the football field at Leichhardt Oval during the half-time break of the main games. He also was involved in activities at the Balmain East boys’ club. These were all indoors and included boxing and numerous other sporting activities.[14]

    [14] Transcript, 15.

25. As a young boy the Applicant occasionally went swimming at the Balmain swimming pool. He would only stay a short time as his parents gave him a strict time to go down and come back again.[15] He would swim with his shirt off and would not wear zinc cream.[16] The pool was covered with awnings around the dressing sheds and he would jump into the water, play around, and then get out again so he was under cover.[17]

    [15] Transcript, 15-16.

    [16] Transcript, 18.

    [17] Ibid.

26. During his childhood, the Applicant spent an average number of days outdoors but did no specific sun-bathing.[18] At the hearing, the Applicant was asked how often he would get sunburnt as a boy up until he turned 18 years. He said that he ‘possibly’ was sunburned during these years.[19] He does not recall telling Dr Shenouda that he got sunburnt three times a year when he was young. He knows ‘for sure’ that he ‘never’ had skin peel off his back.[20]

    [18] Exhibit R4, 2.

    [19] Transcript, 19.

    [20]Transcript, 20.

    Work history

27. The Applicant left school in 1958 at the age of 15 years and he worked at a warehouse. He did numerous jobs for the warehouse in a couple of different areas, all of which involved working inside. He then worked at Drug Houses of Australia as a driver. In late 1969, he went to the Maritime Services Board and worked on buoys and beacons. Most of the work was on the beacons inside an enclosure as they were all propane gas. Sometimes he travelled on the launch down the harbour which was fairly big and covered. Most of the equipment that was carried was inside and the work was done inside the launch. After seven years at the Maritime Services Board, the Applicant joined the New South Wales Fire Brigade (now New South Wales Fire and Rescue) and worked in Fleet Management.[21] He was supplied with and wore protective gear, including a peak cap, blue long sleeve overalls, gloves and safety boots. He worked at the Fire Brigade for 27 years and retired in 2005.[22]

    [21] Exhibit R1, T17, 47.

    [22] Transcript, 15.

    CMF service

28. The Applicant joined the CMF in October 1960 when he was 18 years old.[23] He served with the Royal Engineers,[24] and he was discharged in January 1966.[25]

    [23] Exhibit R1, T17, 47.

    [24] Statement, [2].

    [25] Exhibit R1, T5, 20; Transcript, 16.

29. The Applicant’s CMF service was part-time and included attending training camps for two to three weeks per year, attending training on a weekend once a month, and attending most Wednesday nights.[26] During his five years of service he spent between 12 and 15 weeks at training camps. The Applicant’s duties were building roads, constructing bridges, driving vehicles, planned operations, and normal training under the engineers’ strategy. The three weeks of training per year were conducted at numerous training facilities in New South Wales and Queensland: Gan Gan army base in the Newcastle area, Ingleburn, Holsworthy, and the Port Stephens area, and Wacol.[27] These training sessions were conducted in the warmer months (October, November or December)[28] and were outside in the sun, especially when the work involved constructing of bridges and roads.

    [26] Exhibit R1, T17, 47.

    [27] Transcript, 16.

    [28] Ibid.

30. At other times the Applicant participated in parades at local RSL clubs as well as ANZAC parades and commemorations once a year.[29] On Wednesday evenings they would train outside in the yard. The one weekend of training per month (12 weekends per year) would involve travelling to a training base (Holsworthy or Ingleburn) on a Friday evening and returning on Sunday.[30] The Applicant did convoy training and also drove different styled vehicles that the army supplied so he could get all his army driving licenses. The Applicant confirmed that when he was driving, he was in a covered truck which could have been a left-hand or right-hand drive. His arms were exposed on whatever side the steering wheel was, as he used to drive with his arm out the door. The army vehicles in those days were very hot as the sun would be beaming in through the windscreens and there was no air-conditioning.[31] The Applicant also did planned equipment driving and mine-laying during training weekends. Some of this was done indoors on a blackboard, but at other times it was done outside and was practical.[32]

    [29] Transcript, 14, 17.

    [30] Transcript, 17.

    [31] Ibid.

    [32] Ibid.

31. The Applicant wore ‘jungle greens’ with the sleeves rolled up to five fingers from the shoulder down,[33] and the collar flattened down to the shirt. He wore these both while working and as a uniform on parade in the summer months.[34] Most of the time he and his fellow soldiers did not wear shirts. Instead, they would wear singlets or just their bare skin because of the heat in heavy work, especially during bridge formations, working in the fields, being trained with landmines, and rifle shooting.[35] These duties were conducted ‘in full sun’.[36]

    [33] Transcript, 14.

    [34] Statement, [4].

    [35] Transcript, 14.

    [36] Ibid.

32. In his statement filed on 13 April 2022, the Applicant stated that he wore a slouch hat with the left side turned up as part of his uniform with the jungle greens. He sometimes wore the slouch hat when he working, but most of the time he either wore no hat at all or a dark blue beret. This was because the slouch hat did not stay on his head as it got knocked off or fell off when he was bending down to lift equipment or digging or manoeuvring parts into place so that they could be bolted together.[37] The Applicant wore his beret most of the time when training because of the ‘clumsiness’ of a slouch hat when working in the bush and in the field, especially when he was building and driving vehicles. The hat was too high and would hit against the roof of the cabin and would be knocked forward over his eyes. It would get in the way when he was trying to turn his head to see to the side or rear. Wearing a beret was safest in the field when he was trying to manoeuvre a dozer or similar machine to grade or dig, and where he was being guided and had to see all around to make sure he got the plant in the correct position and did not hit anyone who was working nearby.[38] The Applicant can recollect that the sun was always on his face when he wore the beret.[39]

    [37] Statement, [6].

    [38] Statement, [8].

    [39] Transcript, 14.

33. In his statement, the Applicant described the sun exposure he experienced when he was conducting his CMF duties:[40]

    I was exposed to the sun when wearing my slouch hat on the left side of my face, my ear, my neck and my chin and partially my nose. Every soldier would end up with a white stripe across his face from the chin strap, from above the left ear around the chin. The rest of the side and front of the face was exposed, particularly when working bending, twisting, having to look up or to the side.

    When I wore my beret, all of my face was exposed; my ears, nose, lips, neck and forehead. I would often get sunburnt on the forehead to a line where my beret reached and also on my nose and both ears.

    My right ear, neck and chin were exposed when I was operating a truck or other vehicle as it was the driver’s side of the vehicle and my beret didn’t cover them.

    [40] Statement [9]-[11].

1. At the hearing, the Applicant was asked whether he could ever recall having sunburn during his CMF service. He confirmed that he did, particularly times when he had been out in the field for most of the day. He can remember, especially in the late afternoon or early night, that he could feel his face and arms were burnt.[41] This ‘was just a common thing’ with his skin.[42] The Applicant told the Tribunal that he did not wear sunscreen during this service, as it was not available until the 1970s.[43] He reported that he ‘changed to sunscreens from 1970 to 1990’.[44]

   [41] In addition, in May 2011 and September 2013, the applicant reported to Dr Andrew Li, GP at Drummoyne Surgery and Skin Cancer Clinic, that he only used sunscreen ‘sometimes’ and was burnt ‘>3x/year’ (summonsed records of Dr Li, p 4-5).

   [42] Transcript, 14.

   [43] Transcript, 18; Statement [2]

   [44] Applicant’s response to the request for particulars.

   Applicant’s skin cancer treatment history

2. In early 1970 the Applicant began developing solar keratoses which were treated by his GP. His first skin cancer requiring treatment was on 15 January 1991. This involved the inner helix and upper portion of the left ear.[45] In September 2017 the Applicant had radiotherapy for recurrence of the basal cell carcinoma (‘BCC’) in this area. In total he has had 20 surgical excisions for BCC, Squamous cell carcinoma (‘SCC’) and Bowen’s disease from 1991 to 2019.[46]

   [45] Dr Ingram report, 2

   [46] Dr Ingram report, 2-3

3. Records were received under summons from 11 practitioners who treated the Applicant for various skin cancers. The following history of cancers was recorded in these documents:

   ·     January 1991: Basal cell carcinoma of the left ear;[47]

   [47] Exhibit R1, T7.

   ·     May 2001: Recurrent basal cell carcinoma behind left ear;[48]

   [48] Summonsed documents of Dr Megan Hassall (report dated 30 May 2001).

   ·     September 2001: Multifocal basal cell carcinoma behind left ear;[49]

   [49] Summonsed documents of Dr Megan Hassall (report dated 26 September 2001).

   ·     March 2007: Recurrent basal cell carcinoma on the right chest, new nodular basal cell carcinoma on the right lower eyelid and conchal fossa (hypertrophic intra epidermal squamous cell carcinoma) and ulcerated lesion of the left ear;[50]

   [50] Summonsed documents of Dr Megan Hassall (report dated 19 March 2007).

   ·     December 2009: Squamous cell carcinoma of central chest in situ;[51]

   [51] Summonsed documents of Ryde Sun Doctors Skin Cancer Clinic (histopathology report dated 9 December 2009)

   ·     May 2010: multifocal superficial basal cell carcinoma of the left jaw ‘confined to the papillary dermis’, nodular and infiltrating basal cell carcinoma (1.5mm deep) of the right anterior chest, nodular superficial basal cell carcinoma (<1mm deep) of the right posterior ear without evidence of malignancy;[52]

   [52] Summonsed documents of Ryde Sun Doctors Skin Cancer Clinic (histopathology reports dated 10 May 2010, 20 May 2010, and 24 May 2010).

   ·     June 2010: nodular and infiltrating basal cell carcinoma (<1.5mm deep) of the right anterior chest, actinic keratosis of the right temple with some mild cytologic dysplasia and no evidence of invasive malignancy, well-differentiated squamous cell carcinoma of the left neck infiltrating the dermis (0.5mm);[53]

   [53] Summonsed documents of Ryde Sun Doctors Skin Cancer Clinic (histopathology report dated 3 June 2010, 17 June 2010, and 21 June 2010).

   ·     August 2010: Solar keratosis and superficial basal cell carcinoma of the left shoulder, nodular basal cell carcinoma (2mm deep) of the right shoulder, with antinic keratosis at a margin, squamous cell carcinoma of the right forearm and right shoulder in situ (Bowen’s Disease);[54]

   [54] Summonsed documents of Ryde Sun Doctors Skin Cancer Clinic (histopathology report dated 16 August 2010 and 26 August 2010).

   ·     May 2011: Superficial basal cell carcinoma of right anterior chest, acantholytic dyskeratosis[55]

   [55] Summonsed documents of Dr Andrew Li (histopathology report dated 7 May 2011).

   ·     February 2012: Squamous cell carcinoma in situ (Bowen’s Disease) of the right forearm and right shoulder;[56]

   [56] Summonsed documents of Ryde Sun Doctors Skin Cancer Clinic (histopathology report dated 13 February 2012).

   ·     March 2012: Superficial well-differentiated squamous cell carcinoma of actinic keratosis type of the right forearm and right neck;[57]

   [57] Summonsed documents of Ryde Sun Doctors Skin Cancer Clinic (histopathology report dated 26 March 2012).

   ·     April 2012: Squamous cell carcinoma (Bowen’s Disease) of the left anterior chest wall and right forearm in situ;[58]

   [58] Summonsed documents of Ryde Sun Doctors Skin Cancer Clinic (histopathology report dated 23 April 2012).

   ·     May 2012: Nodular basal cell carcinoma of the right upper shoulder;[59]

   [59] Summonsed documents of Ryde Sun Doctors Skin Cancer Clinic (histopathology report dated 21 May 2012).

   ·     June 2012: Basal cell carcinoma of nodular type of the right shoulder, actinic keratosis of the right forehead with at least one area approaching squamous cell carcinoma in situ (Bowen’s Disease), multifocal superficial basal cell carcinoma of the left ear confined to papillary dermis;[60]

   [60] Summonsed documents of Ryde Sun Doctors Skin Cancer Clinic (histopathology report dated 4 June 2012 and 18 June 2012).

   ·     September 2013: Squamous cell carcinoma of the left shoulder, completely excised, Basal cell carcinoma of left lower leg, completely excised;[61]

   [61] Summonsed documents of Dr Andrew Li (histopathology report dated 25 September 2013 and 2 October 2013).

   ·     October 2013: evolving Bowen’s disease / squamous cell carcinoma in situ with underlying distorted cystic follicle of the right forearm, excised, distorted cystic follicle of the right forearm, excised, large cell acanthoma focally abutting 3 o’clock margin of the right forearm, ulcerated basal cell carcinoma of left chest, excised;[62]

   [62] Summonsed documents of Dr Andrew Li (histopathology report dated 14 October 2013 and 5 November 2013)

   ·     November 2014: Bowen’s disease of the right frontal scalp, completely excised with no dermal invasion seen;[63]

   [63] Summonsed documents of Dr Andrew Li (histopathology report dated 24 November 2014).

   ·     December 2014: Invasive well-differentiated squamous cell carcinoma of the right forehead, squamous cell carcinoma (Bowen’s Disease) left shoulder in situ;[64]

   [64] Summonsed documents of Ryde Sun Doctors Skin Cancer Clinic (histopathology report dated 10 December 2012).

   ·     October 2015: Multifocal superficial squamous cell carcinoma of the right arm; basaloid cells with palisading are present and confined to the papillary dermis (<0.5mm deep), actinic keratosis of the right shoulder with at least one area suggestive of squamous cell carcinoma in situ and no evidence of invasion;[65]

   [65] Summonsed documents of Ryde Sun Doctors Skin Cancer Clinic (histopathology report dated 14 October 2015).

   ·     February 2016: solar keratosis of the mid frontal scalp and mid anterior chest wall;[66]

   [66] Summonsed documents of Ryde Sun Doctors Skin Cancer Clinic (histopathology report dated 3 March 2016 and 17 March 2016).

   ·     March 2016: Basal cell carcinoma of the back as follows:

   §T1 fibrous papule with no evidence of malignancy

   §T6 multifocal superficial basal cell carcinoma, confined to the papillary dermis (<0.5mm deep)

   §T8 nodular basal cell carcinoma (0.5mm deep); residual basal cell carcinoma with incidental intradermal naevus present involving one peripheral margin

   §T9 multifocal superficial basal cell carcinoma, confined to papillary dermis (<0.5mm deep)

   §T10 multifocal superficial basal cell carcinoma, confined to the papillary dermis (<0.5mm deep)

   ·   June 2017: Superficial infiltrative basal cell carcinoma of left ear invading the full thickness of the specimen into the dermis;[67]

   [67] Summonsed document of Associate Professor Robyn Saw (report dated 6 July 2017).

   ·   November 2017: moderately differentiated squamous cell carcinoma of left midline lip;[68]

   [68] Summonsed documents of Prof Harvey Stern (histopathology report dated 30 November 2017).

   ·   February 2018: squamous cell carcinoma of right lower lip;[69]

   [69] Summonsed documents of Prof Harvey Stern (histopathology report dated 27 February 2018).

   ·   October 2018: well differentiated squamous cell carcinoma of the vertex (top of head), infiltrating into superficial reticular dermis without lymphovascular invasion, completely excised, nodular basal cell carcinoma of the right shoulder extending into reticular dermis, no lymphovascular space or perineural invasion, completely excised, atypical melanocytic lesion and associated pigmented seborrhetic keratosis and solar lentigo of the right chest wall in situ;[70]

   [70] Summonsed documents of Dr Mike Shenouda (histopathology report dated 15 October 2018, 22

   October 2018).

   ·   November 2018: ulcerated nodular and morphoetic basal cell carcinoma of the left neck, completely excised;[71]

   [71] Summonsed documents of Dr Mike Shenouda (histopathology report dated 5 November 2018).

   ·   December 2018: moderately differentiated squamous cell carcinoma and associated squamous cell carcinoma of the left maxilla (jaw) in situ, completely excised;[72]

   [72] Summonsed documents of Dr Mike Shenouda (histopathology report dated 7 December 2018).

   ·   January 2019: ulcerated nodular basal cell carcinoma of left chest wall, narrowly completely excised at a transverse edge, ulcerated hypertrophic solar keratosis of vertex (top of head), completely excised;[73]

   [73] Summonsed documents of Dr Mike Shenouda (histopathology report dated 7 January 2019 & 14

   January 2019).

   ·   February 2019: dermal scar and adjacent superficial basal cell carcinoma of right mid back, completely excised, suborrhoetic keratosis with prominent acantholysis of right upper back, as well as solar keratosis of the right upper back;[74]

   [74] Summonsed documents of Dr Mike Shenouda (histopathology report dated 6 February 2019 & 14

   February 2019).

   ·   March 2019: solar keratoses of right nasojugual, right lower eyelid and right maxilla (jaw);[75]

   [75] Summonsed documents of Dr Mike Shenouda (histopathology report dated 18 March 2019).

   ·   April 2019: ulcerated moderately differentiated squamous cell carcinoma of the left shoulder, completely excised, ulcerated superficial basal cell carcinoma of the left lower clavicular, completely excised, mixed superficial and nodular basal cell carcinoma of left shoulder anterior, superficial basal cell carcinoma of left chest wall lateral;[76]

   ·   May 2019: superficial basal cell carcinoma of left chest wall extending to a transverse edge, epidermal ulceration with underlying dermal scar and mixed inflammation of the left shoulder, no in situ or invasive tumour identified;[77]

   ·   October 2019 actinic keratosis on mid lower lip;[78]

   ·   November 2019: squamous cell carcinoma of the right anterior chest with margin involvement, squamous cell carcinoma of the right anterior chest in situ, atypical junctional melanocytic hyperplasia, cannot exclude early evolving melanoma in situ, basal cell carcinoma of the left posterior shoulder, narrow margin of excision;[79]

   ·   July 2020: recurring basal cell carcinoma of the left shoulder;[80]

   ·   September 2020: recurrent superficial basal cell carcinoma adjacent of the left clavicle, completely excised, 2 areas of nodular basal cell carcinoma are clear of margins of the left shoulder, separate superficial basal cell carcinoma of the left shoulder;[81]

   ·   January 2021: Basal cell carcinoma of the left chest;[82]

   ·   March 2021: Ulcerated squamous cell carcinoma of the right vertex (top of head), 15x13mm present for the past 12 months with previous cryotherapy x4;[83]

   ·   April 2021: Squamous cell carcinoma of the left vertex (top of head), clear of margins;[84]

   ·   May 2021: Nodular basal cell carcinoma of the nose, clear of margins.[85]

   [76] Summonsed documents of Dr Mike Shenouda (histopathology report dated 26 April 2019).

   [77] Summonsed documents of Dr Mike Shenouda (histopathology report dated 8 May 2019).

   [78] Summonsed documents of Royal Prince Alfred Hospital (histopathology report dated 28 October

   2019).

   [79] Summonsed documents of Royal Prince Alfred Hospital (histopathology report dated 22 November

   2019).

   [80] Summonsed documents of Royal North Shore Hospital (referral letter dated 20 July 2020).

   [81] Summonsed documents of Royal North Shore Hospital (histopathology report dated 25 September

   2020, see also progress note of same date).

   [82] Summonsed documents of Royal North Shore Hospital (histopathology report dated 29 January

   2021).

   [83] Summonsed documents of Dr Tai Phan (report dated 22 March 2021).

   [84] Summoned documents of Dr Tai Phan (histopathology report dated 22 April 2021, see also report

   dated 15 April 2021).

   [85] Summonsed documents of Dr Tai Phan (histopathology report dated 31 May 2021, see also

   consultation noted dated 27 May 2021).

   Medical reports

4. On 16 January 1991, Dr Lisa MacRae GP issued a histopathology report for the Applicant’s skin legion.[86] On 24 June 1996, Dr MacRae wrote a handwritten letter, attributing the skin cancers to potential aspects of the Applicant’s service.[87]

   [86] Exhibit R1, T7.

   [87] Exhibit R1, T12.

5. On 16 June 1997, Dr Peter Stevenson, Consultant Physician, issued a report.[88] Dr Stevenson considered the Applicant’s exposure during his service would not ‘represent a substantial occupational exposure to the sun, which would significantly alter his risk of developing the condition, of either solar keratosis or basal cell carcinoma’. Dr Stevenson described the connection to service as ‘insignificant and inconsequential’ and ‘immaterial’.[89]

   [88] Exhibit R1, T17.

   [89] Ibid, 51.

6. The Applicant underwent radiotherapy to the upper part of his left ear for basal cell carcinoma between July and September 2017.[90]

   [90] Summonsed records of A/Prof Robyn Saw.

7. The clinical notes of Dr Mike Shenouda, skin specialist, dated 20 October 2018 state:[91]

   Sun exposure for the first 20 years of life – plus plus. Some exposure after the age of 18. Regular outdoor work, sports – plus. Frequency of sunburn in younger years more than three times per summer. Frequency of sunburn in recent years, once per summer. Episodes of severe sunburn as a child.

   [91] Exhibit R3, 2.

8. On 18 January 2021, Dr Eric Acevedo GP issued a one page report, noting that:[92]

   Mr Butt has a Photo type 2 skin and although his sun exposure has been protracted throughout his life in Australia, the exposure reported for his Army stint has been significant. It is my professional opinion that Mr Butt should receive DVA cover for skin related issues.

   [92] Exhibit R1, T27.1.

9. On 9 March 2021, the Contracted Medical Advisor issued a Minute, stating that the sun exposure during the Applicant’s service would have made only a ‘minor contribution’ to the Applicant’s diagnosed conditions.[93]

   [93] Exhibit R1, T29.

10. In a report dated 18 October 2021 Dr Tai Phan, Dermatologist, stated, ‘James' exposure to solar radiation is the same as that which caused the skin cancers to his left ear as to other parts of his face’.[94]

    [94] Medical Report of Dr Tai Phan dated 18 October 2021.

11. On 21 January 2022, Dr Rudy Yeh, Dermatology Registrar for Dr Moreno, recorded:[95]

    In my professional opinion it is reasonable to assume that any sun exposure causing cancers to his left ear could also have caused cancers to his face, neck, head and other ear due to the close proximity of these areas.

    While a hat may provide some sun protection it is certainly possible that damaging sun exposure can still occur due to radiating UV rays beneath the brim of the hat.

    [95] Medical Report of Dr Rudy Yeh dated 21 January 2022.

12. In a report dated 22 April 2021, Dr Dorothy Ting, GP, connected the claimed cancers to the Applicant’s CMF service on the basis that he reported ‘arduous outdoor physical activity’ in NSW and Queensland with minimal sun protection.[96]

    [96] Medical Report of Dr Dorothy Ting dated 22 April 2021.

13. On 25 January 2022, Dr Ting provided a further report in which she stated:

    In conclusion. all parts of his face and neck including the right side of the face and right ear have at certain times of the day had constant sun exposure which is enough to cause his skin cancers in those areas. Due to the nature of the work he undertook for the Army, there were significant periods of time where it was dangerous and or impractical to wear a slouch hat or beret which subjected him to receive enough sun damage to cause skin cancers on his scalp. All his skin cancers have been a result of solar radiation on his fair skin, and he will continue to develop more skin cancers in the future from his earlier sun exposure.

    Expert medical evidence

    Dr Gerard Ingram, Dermatologist

14. On 15 July 2021, Dr Gerard Ingram, Consultant Dermatologist, examined the Applicant at the request of the Respondent and provided a report dated 28 July 2021.[97]

    [97] Exhibit R4.

15. In answer to the question, ‘what condition, if any, did the Applicant suffer in or around 1996 in respect of his claim for 'skin cancers'’, Dr Ingram wrote:[98]

    The whole process commenced with sun exposure in his childhood. However, cancer development is cumulative. (How many sunburns make a cancer? How long does it take in nature? Which cancer was caused by which sunburn etc). Yes, some of his damage was caused during his childhood, but so also is all further sun exposure … The ear cancer is an example of this. He wore a slouch hat during his time with the CMF. The left brim is raised and exposed to the sun during the time it is worn. Six years cumulative exposure can certainly generate skin cancer. How long does it take to develop cancer following sunburn events is not known. We do know it is a longitudinal process and the left ear cancer would appear to incriminate the CMF exposure time. Whether the others were caused directly by his service years is impossible to clarify. All sun exposure is cumulative over a lifetime. All skin types including pigmented people can develop skin cancer. Cancer of their non- pigmented areas -nail bed and lips particularly. It certainly is not unique to people of Celtic origin.

    [98] Ibid, at 4-5.

16. Dr Ingram stated the following in response to a question about whether the UV the Applicant was exposed to during the six years of his service made a material contribution to any skin cancer condition he suffered in 1996:[99]

    [The Applicant’s] history of sun exposure during his CMF service is significant. The substantial exposure not only from this but the whole of life's sun exposure causes skin cancer. It is impossible to quantitate a proportion during each year of his life which resulted in which skin cancer.

    [99] Exhibit R4, 7.

17. Dr Ingram made the following comment on Dr Stevenson’s report dated 16 June 1997:[100]

    In 1997 Dr Peter Stevenson, a physician, provided a report to the Military Compensation and Rehabilitation Service, a report which was incorrect in fact and outside his area of expertise. He was not a Dermatologist and his information was definitely not the dermatological knowledge known at that time.

    [100] Ibid.

18. On 27 September 2021 the Respondent requested a supplementary report from Dr Ingram and he provided a report dated 5 October 2021.[101] He provided the following opinion in relation to the Applicant’s skin cancers:[102]

    On the basis of probabilities, the left ear cancers which developed in 1991 and subsequently recurred in May 2001, September 2001, March 2007 (c) and squamous cell cancer June 2021 are part of the original disease or condition. You will note I have included the SCC of September. Both types of cancers are caused by solar radiation. The 6 years of solar exposure from October 1960 to January 1966, of the left ear can produce both of these cancers.

    [101] Exhibit R5.

    [102] Ibid, 2.

19. In answer to a question in relation to the aetiology of the Applicant’s basal cell carcinoma on his right lower eyelid in March 2007, and the solar keratoses on his right lower eyelid in March 2019, Dr Ingram stated:[103]

    The condition is caused by solar radiation. It is not probable that this has occurred from his service. The wide brim of the slouch hat has protected his face from radiation.

    [103] Exhibit R5, 4.

1. At the hearing, Dr Ingram was asked to explain why in his first report he stated that because the Applicant wore a slouch hat during his CMF service, that the left ear cancer would appear to incriminate the CMF sun exposure. He stated:[104]

   The reasoning there is that the only area where he developed cancer was significantly exposed at all times during his CMF service so if he wore the hat, the left ear was exposed. Another analogy is the golfer who whether he be left- or right-handed; if he is right-handed then as he faces the ball, his left ear is exposed. If he is left-handed then he addresses it with his right ear exposed, and they have significantly increased cancer on that area.

   [104] Transcript, 37.

2. Dr Ingram was asked whether he considered that the Applicant’s six years of sun exposure when he served in the CMF contributed to a material degree to the development of his left ear cancer, which arose in 1991. He stated that this is the ‘only thing that I am confident about.’[105]

   [105] Transcript, 38.

3. Dr Ingram was asked whether, if the Applicant was wearing a beret most of the time when he was undertaking his CMF duties, it would change his opinion about the left ear cancer. He stated:[106]

   historically his significant cancers were of the left ear and the others developed very much later so to tie them 30 years later to his service, I found very hard to reconcile.

   [106] Transcript, 37.

4. Dr Ingram was asked whether ‘all sun exposure is equally damaging’.[107] He stated that the risk to a person standing in a field that was not shaded during mid-January at noon, is not the same as if they were standing in the same field at noon in mid-July.[108] He explained that the most damaging is UVB, which is most predominant particularly in summer between the hours of 11am and 2pm. Other ingredients are UVA, which occurs essentially during most of the day but is less damaging. The UVB ‘depends on the distance of the sun from the earth which determines the degree of variation.’[109]

   [107] Transcript, 36.

   [108] Ibid.

   [109] Transcript, 36.

5. Dr Ingram was taken to the clinical notes of Dr Shenouda dated 20 October 2018 and asked whether, if the Applicant had multiple sunburns in his youth, this would affect his opinion. He stated that in his view this would have significantly contributed to the development of the Applicant’s later skin cancers, but this is not the history that the Applicant gave to him.[110]

   [110] Transcript, 37.

6. Dr Ingram agreed that because all sun exposure can increase the risk of skin cancer, there could be a very long latency period between the sun exposure and the cancer emerging.[111] He also agreed that it is ‘certainly probable’ that a cancer that arose in 1991, which is 25 years after the Applicant’s service, is within an acceptable latency period.

   [111] Transcript, 39.

7. Dr Ingram was asked how likely it is, in the absence of his CMF service, that the Applicant would have developed the skin cancers, particularly the 1991 left ear basal cell carcinoma. He stated:[112]

   Well, on one side of the cancer of the ear is unusual; I would have expected (indistinct) some exposure to produce his cancers, it would have occurred elsewhere sooner or certainly contiguous with the ear. In other words, if he had one on the ear, he may have had one on his shoulder and his face, and then he had the one on his lip which may or may not have been related, etc., etc. No, I can’t resolve that but I would have expected him, in the condition of his skin when I saw him, I was not surprised that he has had multiple skin cancers.

   [112] Ibid.

8. During cross-examination, Dr Ingram stated that having reviewed the photographs of soldiers provided by the Applicant, he concluded that ‘[t]he apex of the face, in this case the ear, is the most prominent and therefore attracts the most radiation.’[113] In his opinion:[114]

   ... the only cancer he has that in real terms that can be related to his service is his left ear because they are the early tumours and when time-related, the only ones possibly, relevantly or probably related to his service.

   [113] Transcript, 43.

   [114] Transcript, 46.

9. Dr Ingram was asked whether there is any medical evidence of reports or investigations that suggest that the onset of skin cancers or skin conditions related to solar exposure can be said to occur over a particular timeframe. He said that there is not.[115]

   [115] Transcript, 47.

10. Dr Ingram provided the following opinion in relation to the likelihood of the contribution of the Applicant’s CMF service to his skin cancers:[116]

    His term in the CMF over brief periods of time in the six years had him exposed regularly and the only tumour that emerged in a reasonable was the one on the ear. The rest, were they applicable to working as a sapper? Is it possible? Maybe, but the probability is low. The rest of his outdoor life? Well, all Australians experience some degree of skin damage and his appearance is compatible with having lived a normal life, I am afraid.

    [116] Transcript, 48.

    Associate Professor Robyn Saw, Melanoma and Surgical Oncologist

11. In a report dated 2 February 2022, Associate Professor Robyn Saw, Melanoma & Surgical Oncologist, Head of Department, Melanoma & Surgical Oncology, Royal Prince Alfred Hospital, provided her opinion in relation to the contribution of the Applicant’s service to his skin cancers. She stated:[117]

    As we know, exposure from the sun with fair skin, particularly at a young age does predispose people to significant skin cancer risk, both non melanoma skin cancers and melanoma, particularly where the skin is exposed. I would certainly expect this exposure whilst he was in the military would have been the antecedent event or at least contributed significantly to his skin cancer propensity.

    [117] Exhibit A1, 1.

12. During her oral evidence at the hearing, Associate Professor Saw told the Tribunal that the epidemiology indicates that fair-skinned individuals who were born in Australia have a significant incidence of non-melanoma and melanoma skin cancers.[118] She confirmed that the regular use of sunscreen probably did not occur until the 1990s or 2000s.[119]

    [118] Transcript, 25.

    [119] Ibid.

13. Professor Saw was asked whether the Applicant elaborated on the work activities in which he was involved during his CMF service. She told the Tribunal that she did not go into detail with the Applicant about this, and she relied on the description of these activities in Dr Ingram’s report. However, she understood ‘that it involved quite a lot of outdoor activity.’[120] She was asked whether she was aware that the Applicant’s service as a reservist was not full-time, and that his training was done in blocks of three weeks once per year, and weekends once a month; not every week or every day. She responded, ‘No, I was unaware of that.’[121] Associate Professor Saw was asked whether, with this knowledge, her opinion would be different. She stated:[122]

    I would still stand by my statements because every significant sun exposure increases the risk of a skin cancer and I think that was made very clear in Dr Ingram’s report – his first report on 15 July. I agree with him that every event of sun exposure increases the risk that skin cancer will result from that.

    [120] Transcript, 23.

    [121] Transcript, 24.

    [122] Ibid.

14. Professor Saw was asked about the finding in Dr Ingram’s supplementary report that because the Applicant was wearing a slouch hat, the only part of his body that was exposed to the sun was his left ear, and whether she had looked at the photos provided by the Applicant. She confirmed that she had reviewed the photos and stated:[123]

    I think the issue here is not that skin cancer is caused by intense sun exposure but I think it is the extent of exposure that [the Applicant] actually had and to which part of his body during his service activity. So I think the photos show very clearly that it wasn’t only the left ear that actually had sun exposure; it looks like from the photos that the whole face, neck and [the Applicant] reported there were times that they were stripped and had exposure to their upper body and even if they wore a shirt, they rolled their sleeves up so forearms would have been exposed as well. So the photos and [the Applicant’s] explanation to me of what clothing he wore when he was doing his activities suggests that it was not only the left ear that was exposed to sunlight.

    [123] Transcript, 24.

15. Professor Saw was asked to assume that the Applicant’s CMF service was for about a total of 200 days spread over five years and over all four seasons, and whether that would change her opinion that his service contributed to the development of his cancers. She stated:[124]

    I think that any intense period of sun exposure will actually increase the number of skin cancers that you have and … there’s no absolute quantity of exposure that we can document properly that will say, “This amount causes this skin cancer and this amount will not cause a skin cancer.” There’s no evidence and no literature related to that at all but we know that any amount of increased skin exposure will increase the person’s risk to skin cancer, so I think to try and cut it to say that 200 days is not enough to cause a skin cancer – even though those days may have been intense sun exposure – I don’t think that I can actually refute that because sun exposure is sun exposure. Intensity of sun exposure is certainly higher in summer months but it is still sun exposure in the winter months.

    [124] Transcript, 26-27.

16. Professor Saw told the Tribunal that jungle greens would provide protection from the sun because ‘[a]ny clothing that you can hold up to the sunlight and not see through provides a reasonable amount of protection.’[125] She went on to say that, whereas clothing provides reasonable protection from the sun, it is never 100 per cent which is only achieved if a person stays indoors. Even sunscreen does not provide full protection; all it does is stops a person from burning and they are still exposed to some UV rays through even a SPF 50.[126]

    [125] Transcript, 27.

    [126] Transcript, 29.

17. Professor Saw was asked how confident she would be in saying that the contribution during the Applicant’s CMF service contributed materially to the development of his skin-damaged skin and specifically the basal cell carcinoma he developed in 1991 on his ear. She stated:[127]

    I think no one can be absolutely certain and I guess I agree with you; you have a very difficult job (indistinct) people’s everyday lives and their childhood exposures, and trying to work out how much of the military exposure contributed. I think it is almost impossible to say. I suspect that the BCC on his ear, just because of the use of the slouch hat and that it was the place that was most exposed, is likely. That’s what Dr Ingram has actually said in his first report, which I have to comment that it was excellent. The face, the neck and the forearms that were exposed, I think would probably contributed significantly as well but it is very difficult to quantify. I think you will only have verbal evidence about the extent of the sun exposure to the parts of the body that were supposed to have been covered by uniform but may have not been; for example, the back and the chest and possibly the legs. You will only have verbal reports whether servicemen took off their garments while they were working or didn’t, so that part, I think, is difficult to be completely accurate but I think when I look at the photos of the soldiers, even in their uniforms, it is very clear that what is exposed is face, which includes ears and neck.

    [127] Transcript, 28.

18. Professor Saw was asked whether she agreed with Dr Ingram’s conclusion that the Applicant’s cancers that arose after 1991, being a recurrence of his ear cancer in 2001, and then a series of cancers that arose in 2007 and later are just too remote in time to be connected to the Applicant’s CMF service. She stated, ‘I don’t agree. I think any sun exposure can bring up any skin cancer.’[128] She said that there can ‘definitely’ be ‘a very long latency period.’[129]

    SUBMISSIONS

    Applicant

    [128] Ibid.

    [129] Transcript, 29.

    Jurisdiction

19. The Applicant’s initial claim was for solar keratoses on the face, ears, and shoulders, and not specifically for the left ear. The Respondent advised the Applicant that it would reconsider the Determination dated 30 June 1997 if new medical evidence or contentions were provided.[130] The Applicant provided new medical evidence on 18 January 2021 and, based on the additional evidence, the Respondent decided to conduct a review of the Determination in relation to skin cancers. It is within the Tribunal’s jurisdiction to consider other skin cancers, and not just the left ear, based on new medical evidence.[131]

    [130] Exhibit R1, T26, F72-74.

    [131] ASFIC, [14].

    Liability

20. The Applicant relies on the following medical reports:

    ·Doctor Ingram’s first report dated 28 July 2021 that stated, ‘Mr Butt's history of sun exposure during his CMF service is significant. The substantial exposure not only from this but the whole of life's sun exposure causes skin cancer. It is impossible to quantitate a proportion during each year of his life which resulted in which skin cancer’.

    ·Doctor Acevedo’s report dated 18 January 2021 that stated, ‘Mr Butt has a Photo type 2 skin and although his sun exposure has been protracted throughout his life in Australia, the exposure reported for his Army stint has been significant. It is my professional opinion that Mr Butt should receive DVA cover for skin related issues’.

    ·Doctor Phan’s report dated 18 October 2021 that stated, ‘James’ exposure to solar radiation is the same as that which caused the skin cancers to his left ear as to other parts of his face’.

    ·Doctor Yeh’s report dated 21 January 2022 that stated, ‘In my professional opinion it is reasonable to assume that any sun exposure causing cancers to his left ear could also have caused cancers to his face, neck, head and other ear due to the close proximity of these areas. While a hat may provide some sun protection it is certainly possible that damaging sun exposure can still occur due to radiating UV rays beneath the brim of the hat’.

    ·Doctor Ting’s report dated 25 January 2022 that stated, “In conclusion. all parts of his face and neck including the right side of the face and right ear have at certain times of the day had constant sun exposure, which is enough to cause his skin cancers in those areas. Due to the nature of the work, he undertook for the Army, there were significant periods of time where it was dangerous and or impractical to wear a slouch hat or beret, which subjected him to receive enough sun damage to cause skin cancers on his scalp. All his skin cancers have been a result of solar radiation on his fair skin. and he will continue to develop more skin cancers in the future from his earlier sun exposure”.

    ·Associate Professor Saw’s report dated 2 February 2022 that stated, “As we know, exposure from the sun with fair skin, particularly at a young age does predispose people to significant skin cancer risk, both non melanoma skin cancers and melanoma, particularly where the skin is exposed. I would certainly expect this exposure whilst he was in the military would have been the antecedent event or at least contributed significantly to his skin cancer propensity”.

    Respondent

    Jurisdiction

21. The Tribunal’s jurisdiction is limited to the Applicant’s claimed left ear cancer, suffered prior to, on, or about 1996. As the skin cancers the Applicant suffered from 1997 onwards (the ‘other skin cancers’) were not the subject of the Applicant’s claim form, the Determination, the review of the Determination dated 3 September 1997, and the Reviewable Decision, the Respondent contends the Tribunal’s jurisdiction is limited to only considering the skin cancers claimed for in or around 1996.[132] Lees v Comcare (‘Lees’)[133] established the principle that only determinations that would be subject of reconsideration under section 62 of the Safety, Rehabilitation and Compensation Act1988 (Cth) (‘SRCA’) are reviewable decisions for the purposes of section 64 of the SRCA. In Lees, the Tribunal was seized of jurisdiction over one claim by an applicant, and the applicant then attempted to extend that to cover other claims that had not been decided and reconsidered.

    [132] RSFIC, [34.1].

    [133] [1999] FCA 753.

22. The Respondent contends that every compensation claim must be time specific and is considered only on its terms. This enables the claimed employment contribution within a specific time period to be properly analysed and considered within the relevant decision-making tiers, so that there is precision as to the scope of the matter before the Tribunal for review.[134] The terms of section 54 of the Act, together with sections 61 to 62 put beyond doubt the requirement for the terms of the claim to define the scope of the review.[135]

    [134] RSFIC, [35].

    [135] RSFIC, [37].

23. The Respondent therefore submits that any skin disease or skin cancer suffered by the Applicant after 30 June 1997 were not before the primary decision-maker or the reconsideration decision-maker, and they are therefore not before the Tribunal. Only the 1991 basal cell carcinoma and the solar keratosis are within the scope of the Tribunal’s jurisdiction.[136]

    [136] RSFIC, [35]-[38].

    Liability

    Left ear skin cancers

24. Only the basal cell carcinoma on Applicant’s left ear arose before 30 June 1997. It is the only cancer that is before the Tribunal, and the evidence bases the occurrence of that basal cell carcinoma as 1991, which is 25 years after the Applicant’s CMF service ended. There was a recurrence 10 years later which is not before the Tribunal.

25. The applicable test in relation to the Applicant’s left ear cancers is whether they were contributed to, to a material degree, by his CMF service. As Finn J observed in Comcare v Sahu-Khan,[137] ‘a material degree’ requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment. This will be a matter of fact and degree.[138]

    [137] [2007] FCA 15 at [16].

    [138] RSFIC, [39].

26. Both Associate Professor Saw and Dr Ingram agree that 25 years is certainly within a reasonable latency period and that the Applicant’s CMF service could be a material contribution. The Respondent concedes the Tribunal can be satisfied on the evidence of Dr Ingram that the Applicant’s left ear skin cancers were contributed to, to a material degree, by his service.[139]

    Other skin cancers

    [139] RSFIC, [40]; Transcript, 58.

27. If the Tribunal is satisfied it has jurisdiction to consider the other skin cancers, the Respondent contends the applicable test for the skin cancers from 2001 to April 2007 is a ‘material contribution’, and the skin cancers from April 2007 onwards is a ‘significant contribution’. The only skin cancers which developed prior to April 2007 were on the Applicant’s right eye lid and right chest. As such, these are the only two conditions which are subject to the lower threshold of ‘material contribution’.[140]

    [140] RSFIC, [42].

28. Having regard to both the material and significant contribution tests, the Respondent contends the Tribunal cannot be satisfied as to the level of contribution (if any) that the Applicant’s CMF service played in developing the skin (cancers other than the left ear cancers), as it is not possible to ascertain the level of actual sun exposure the Applicant experienced during his service.[141]

    [141] RSFIC, [45].

29. While the Applicant’s general practitioners appear to support the general connection between his skin cancers and his service, this appears to be based on the notion that the Applicant spent a good deal of his service in the sun.[142] The evidence before the Tribunal is that the annual training camps were in the spring months of September and October, and the Applicant’s weekend training was spread evenly throughout the year. Accordingly, the Applicant attended roughly 200 training days, not including the night-time Wednesday nights. About 100 of them were in the spring, 30 were in the summer and 30 were in winter and autumn.[143]

    [142] RSFIC, [46].

    [143] Transcript, 55.

1. The Respondent relies on the evidence of Dr Ingram, who opined that there is no connection between the Applicant’s left ear skin cancer and the various other skin cancers which developed over the years. Dr Ingram opined that only the cancers of the left ear can be contributed to the Applicant’s service, and cancers at the other sites are too remote in time to be considered to have been caused by the Applicant’s six years of CMF Reserve service.[144]

   [144] RSFIC, [47].

2. Regardless of the Applicant’s CMF service, he is likely to have developed skin cancers (other than perhaps the left ear skin cancer) because this is a normal presentation for Australian men at that age. Whether any or all of the skin cancers were contributed to materially by the spasmodic and intermittent sun exposure of the five years, can only be speculative.[145]

   CONSIDERATION AND REASONS

   [145] Transcript, 56.

   Jurisdiction

3. The Tribunal does not exercise power at large and, under subsection 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth), it has jurisdiction to review certain decisions conferred upon it by legislation. In this matter, jurisdiction is conferred by section 64 of the Act for ‘review of a reviewable decision’. Under subsection 60(1) of the Act a ‘reviewable decision’ is a decision made under subsection 38(4) or section 62. The latter section, which is presently relevant, provides for ‘reconsideration of a determination’. The word ‘determination’ is given particular meaning in subsection 60(1), and includes a determination under section 14. The Reviewable Decision in this matter is a reconsideration of a Determination made under section 14 of the Act on 30 June 1997.

4. In Lees, the Full Federal Court made the following observations in relation to the three-tiered decision-making structure under the Act:[146]

   In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by s 64 of the Act to review only reviewable decisions – that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination (s 61(1)). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers "[f]or the purpose of reviewing" the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.

   [146] At [13].

5. In order to determine the Tribunal’s jurisdiction in this matter, it is necessary to consider the notice given of the claimed conditions under section 53 of the Act, the claim made in relation to these under section 54, as well as any supporting materials given to the Respondent, the Determination made in respect of the claim under section 62, and the Reviewable Decision under section 64 of the Act.

6. The summonsed records demonstrate the Applicant first suffered left ear cancer in 1991 and Dr Ingram noted the Applicant’s first skin cancer requiring treatment was on 15 January 1991.[147] The Applicant lodged his compensation claim on 23 February 1996 and stated that he first noticed the condition on 31 March 1989.[148] He provided answers to the following questions:

   [147] Exhibit R4, 2.

   [148] Exhibit R1, T8, 25.

   What injury or illness are you claiming for?

   Solar keratoses

   …

   What part of your body are affected

   Face, ears, shoulders

   …

7. The Applicant’s claim was supported by a medical report of Dr MacRae dated 27 February 1996 in which she refers to ‘recurrent solar keratosis requiring cryotherapy and basal cell carcinoma requiring incision.’[149] In a second report dated 24 June 1996, Dr MacRae refers to ‘histologically proven basal carcinoma requiring surgical excision and solar keratosis requiring cryotherapy on a regular basis for at least the last ten years.’ The relevant basal cell carcinoma was on the Applicant’s left ear. There is no evidence that the Applicant experienced either skin cancer or solar keratosis on any other part of his body at the time that he lodged his claim.[150]

   [149] Exhibit R1, T9.

   [150] The Applicant first suffered from a ‘recurrent’ basal cell carcinoma on the right chest in March 2007.

8. The Determination dated 30 June 1997 rejected the Applicant’s claim for compensation for inter alia ‘skin cancers’.[151]

   [151] Exhibit R1, T20.

9. The Reviewable Decision dated 10 March 2021 stated:

   Whilst I have noted your GP’s opinion, on the basis of all the available evidence, I am not satisfied your service was a contributing factor in the contraction of solar keratosis and non-melatonic malignant neoplasm of the skin. Your condition is said to be due to genes and lifelong solar exposure, and there would be a minor contribution from your reserve service.

   Therefore, the requisite test is not met and I am unable to establish a causal connection between the development of asthma and your service.

   The determination under review has been affirmed.

10. The Respondent contends that the terms of section 54 of the Act, together with sections 61-62 put beyond doubt the requirement for the terms of the claim as made to define the scope of the review.[152] The Respondent referred to Portors v Comcare,[153] in which Robertson J stated that a related subsequent injury requires a separate claim, even where it arises from treatment for an accepted condition.

    [152] RSFIC [36].

    [153] [2018] FCA 914 at [30].

11. Based on the evidence before it, particularly the compensation claim form, the supporting medical reports of Dr MacRae, and the references in the Determination and the Reviewable Decision to the Applicant’s ‘skin cancers’ or ‘solar keratoses’, the Tribunal finds that the scope of the Tribunal’s jurisdiction in this matter extends to the other skin cancers suffered by the Applicant from 1991 onwards, and is not limited to 1991 basal cell carcinoma and the solar keratosis that was the basis of the claim lodged in February 1996. The multiple skin cancers or solar keratoses which the Applicant suffered after lodging this claim were related to the original claimed condition (solar keratoses) and did not require a separate claim. These were the subject of the Reviewable Decision and are within the scope of the Tribunal’s jurisdiction upon review.

    Liability

    What condition does the Applicant suffer from?

12. It is not in dispute that the Applicant has suffered from solar keratoses (skin cancers) to his face, ears and body, and that these were first diagnosed in 1991.

    What degree of contribution from service is required?

13. The test of employment contribution for a disease is dependent on the timing of the onset of the compensable “injury”. The Act was amended in April 2007, replacing the “material degree” test with the “significant degree” test. As the Applicant’s claimed conditions arose both before and subsequent to the 2007 amendments, the relevant test is that applicable at the time of his claimed conditions. The only skin cancers which developed prior to April 2007 were on the Applicant’s left ear, right eye lid and right chest. Accordingly, these are the only two conditions which are subject to the lower threshold of a ‘material’ contribution.

14. In Comcare v Sahu-Khan,[154] Finn J provided the following guidance in relation to the meaning of “material degree”:

    [154] [2007] FCA 15; 156 FCR 536 [13]-[15].

    … the inclusion of the word ‘material’ imposes an ‘evaluative threshold’ below which a causal connection may be disregarded.

    What is problematic is identifying where the threshold lies. Treloar’s case… set its own threshold of sorts for satisfying the 1971 Act’s ‘contributing factor’ requirement. It would, for example, exclude a de minimis contribution or one which did not influence the course of events. But once an employment was found to be a contributing factor to the condition in question, it did not matter whether the contribution was of any particular size or degree: Treloar… at 329. It has not been uncommon for courts, in dealing with statutes requiring such a contribution to be found, to describe that contribution as ‘material’: see eg Repatriation Commission v Bendy (1989) 10 AAR 323 at 325. That usage is not how the term ‘material’ in the phrase ‘in a material degree’ is used in the SRC Act. The legislative history of this definition makes this plain.

    There are, in my view, obvious hazards in allowing finely nuanced differences in dictionary definitions to contrive the answer to this question, given as I have noted, that the word ‘material’ in this context had its legislative meaning set in part by the qualification it imposed on the nature of the contribution required to be demonstrated before the provisions in the SRC Act were engaged. This said I consider that one of the meanings of the word ‘materially’ in the Shorter Oxford English Dictionary probably captures the essence of what the legislature was conveying. That meaning is –

    ‘4. In a material degree; substantially, considerably.’

    An example given of this usage is that of contributing ‘materially to the funds required’ for a purpose. This usage probably comes closer to what Davies J in Bendy described (10 AAR at 325) as the ‘loose sense’ of the definition of ‘material’ in the Macquarie Dictionary ‘namely, ‘of substantial import or much consequence’ [rather than the] legal sense of ‘pertinent’ or ‘likely to influence’.

    Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:

    (i)requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;

    (ii)‘in a material degree’ requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (‘the threshold evaluation’);

    (iii)whether this will be so in a given case will be a matter of fact and degree.

15. Subsection 5B(3) of the Act defines “significant degree” as a “degree that is substantially more than material.” It follows that a “material degree” is substantially less than a “significant degree”. As His Honour Justice Finn explained, what meets the threshold of a material degree is a matter of fact and degree, but it is clear that it is a more generous standard for an injured worker than that which applies following the 2007 amendments.

16. In Comcare v Power,[155] Katzmann J discussed the meaning of ‘to a significant degree’. Her Honour stated, ‘[a] contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial’,[156] and further observed that, ‘… a material contribution is one which is greater than minimal or, one might say, trivial’.[157] Her Honour considered the previous Compensation (Commonwealth Government Employees) Act 1971 (Cth) which required employment to be ‘a contributing factor to the disease’. The current definition in section 5B of the SRCA which requires the employment to have contributed ‘to a significant degree’ was inserted by the Safety, Rehabilitation and Compensation and other Legislation Amendment Act 2007 (Cth). After discussing this amendment, Her Honour stated:[158]

    There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of “significant” as “substantially more than material” makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be “more than trivial”; it had to be substantially more than trivial.

    Did the Applicant’s service contribute ‘to a material degree’ to the Applicant’s left ear, right eye lid and right chest cancers?

    Left ear cancer

    [155] (2015) 238 FCR 187.

    [156] at [78].

    [157] at [82].

    [158] at [93].

17. The Respondent accepts, and the Tribunal finds, that the Applicant’s CMF service contributed to a material degree to the Applicant’s left ear cancer. With the exception of Dr Peter Stevenson, the medical experts agree that the Applicant’s sun exposure during his six years of service contributed materially to the Applicant’s left ear basal cell carcinoma for which he was treated in January 1991, and which recurred in May and September 2001. Dr Ingram’s view is that Dr Stevenson’s assessment in June 1997 of the contribution of the Applicant’s CMF service as ‘insignificant and inconsequential’ and ‘immaterial’ is unreliable.

18. The Tribunal is therefore satisfied, on the balance of probabilities and based on the evidence before it, that the Applicant’s left ear cancer is a compensable injury under section 14 of the Act.

    Right eye lid and right chest cancers

19. Dr Ingram’s opinion is that, with the exception of the Applicant’s left ear cancer, the Applicant’s other skin cancers are not attributable to his CMF service. He bases this opinion on the fact the Applicant wore a slouch hat exposing his left ear, and that whereas the left ear cancer developed 25 years after the Applicant’s service, the other cancers which developed from March 2007 are outside the reasonable latency period and are therefore not attributable to the Applicant’s service. Associate Professor Saw’s opinion is that ‘any sun exposure’ can cause skin cancer and that there can ‘definitely’ be ‘a very long latency period.’ From her observations of the photos of the soldiers, ‘it is very clear that what is exposed is the face, which includes ears and neck.’ The fact that the Applicant’s CMF service was not full-time, did not change Associate Professor Saw’s opinion in relation to the contribution of the Applicant’s service to his skin cancers for reason that ‘every significant sun exposure increases the risk of skin cancer.’

20. The Applicant’s evidence is that when he was working outside, he would rarely wear his slouch hat, would usually wear his blue beret, and often would work without a shirt, exposing his face, ears back and chest to the sun. Dr Ingram’s opinion is based on the assumption that the Applicant wore a slouch hat when he was working, the wide brim of which protected his face from radiation.[159] Associate Professor Saw’s opinion is based on her examination of the photographs which show that it was not only the left ear that had sun exposure but instead the whole face and neck.[160] Based on the Applicant’s evidence and photographic evidence, the Tribunal prefers the opinion of Associate Professor Saw whose opinion that any sun exposure increases the risk of skin cancer, is based on the assumption that the Applicant’s face and neck were exposed to the sun. The Tribunal is therefore satisfied that the Applicant’s exposure to the sun whilst undertaking his work duties during his CMF service, increased his risk of skin cancer, and was at least a material contribution to the skin cancers he developed from March 2007.

    [159] Exhibit R5, 4.

    [160] Transcript, 24.

21. The Tribunal is therefore satisfied, on the balance of probabilities, and based on the evidence before it, that the Applicant’s right eye lid and right chest cancers are compensable injuries under section 14 of the Act.

    Did the Applicant’s service contribute ‘to a significant degree’ to the Applicant’s post April 2007 cancers?

22. On the basis of the evidence before it, and for the reasons that follow, the Tribunal is satisfied on the balance of probabilities that the Applicant’s service contributed ‘to a significant degree’ to the development of his skin cancers after April 2007.

23. The medical evidence before the Tribunal is that the Applicant’s sun exposure during his CMF service was significant. In his first report dated 28 July 2021 Dr Ingram stated that the Applicant’s ‘history of sun exposure during his CMF service is significant.’ Dr Acevedo in his 18 January 2021 report stated, ‘the exposure reported for his Army stint has been significant.’ Doctor Ting reported on 25 January 2022 that ‘[d]ue to the nature of the work, [the Applicant] undertook for the Army, there were significant periods of time where it was dangerous and or impractical to wear a slouch hat or beret, which subjected him to receive enough sun damage to cause skin cancers …’ In her report dated 2 February 2022 Associate Professor Saw opined that she ‘would certainly expect this [sun] exposure whilst [the Applicant] was in the military would have been the antecedent event or at least contributed significantly to his skin cancer propensity.’

24. The Tribunal acknowledges the opinion of the medical experts that it is very difficult if not impossible ‘to quantitate a proportion during each year of [the Applicant’s] life which resulted in which skin cancer’.[161] However, on the balance of probabilities, the Tribunal is satisfied based on the Applicant’s evidence and the medical evidence before it, that the Applicant’s exposure to the sun during his CMF service contributed ‘to a significant degree’ to the development of his skin cancers after April 2007.

    [161] Exhibit R4, 7.

25. The Tribunal is therefore satisfied, on the balance of probabilities, and based on the evidence before it, that the skin cancers the Applicant developed after April 2007 are compensable injuries under section 14 of the Act.

    DECISION

26. The Reviewable Decision is set aside and substituted with a decision that the Applicant’s skin cancers are compensable injuries under section 14 of the Act.

I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk

.................................[SGD].......................................

Associate

Dated: 23 December 2022

Date(s) of hearing:	28 & 30 June 2022
Advocate for the Applicant:	Mr W Forsbey & Mr R Calloway
Counsel for the Respondent:	Mr A Dillon
Solicitors for the Respondent:	Australian Government Solicitor