Cabban and Comcare

[2008] AATA 1132

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1132

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0476

GENERAL ADMINISTRATIVE DIVISION		)
Re		SHARON CABBAN

Applicant

And COMCARE

Respondent

DECISION

Tribunal

Dr P McDermott, RFD, Senior Member and

Dr M Denovan, Member

Date18 December 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

................[Sgd].........................

Senior Member

CATCHWORDS

COMPENSATION – Claims – herpes zoster condition – whether medical condition contributed to a material degree by employment – decision under review affirmed.

Safety, Rehabilitation and Compensation Act 1988 ss 4, 7

Re Ileris and Comcare (1999) 30 AAR 98; 56 ALD 301

REASONS FOR DECISION

18 December 2008   Dr P McDermott, RFD, Senior Member   Dr M Denovan, Member

INTRODUCTION

1.      We have to decide whether Ms Sharon Cabban is entitled to compensation under the Safety, Rehabilitation and Compensation Act1988 for a herpes zoster (or shingles) condition.

BACKGROUND

2.       In 2006, Ms Sharon Cabban was employed by Centrelink.  She had a position of some responsibility as an authorised review officer.

3.      On 18 April 2006, Ms Cabban submitted a claim in respect of “herpes zoster (shingles)”.

4.      On 29 May 2006, a delegate of the respondent issued a determination denying liability for the claimed condition [T18].  The delegate was not satisfied that Ms Cabban’s condition was contributed to in a material degree by her employment.

5.      On 18 July 2006, Ms Cabban requested an extension of time in which to lodge her request for reconsideration.  The respondent granted Ms Cabban an extension of time of up to 15 September 2006.  On 11 September 2006, Ms Cabban requested a reconsideration of this determination.

6.       On 21 December 2006, a delegate of the Commission made a decision to affirm the determination of 29 May 2006 [T2].

7.      Ms Cabban now seeks review of this decision by this Tribunal.

ISSUE FOR DETERMINATION

8.      We have to decide whether the herpes zoster condition of Ms Cabban was contributed to in a material degree by her employment at Centrelink (Safety, Rehabilitation and Compensation Act 1988, s 4 (definition of disease)). The respondent properly conceded that the relevant event occurred prior to the passage of the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 which inserted a new definition of disease in the Act.

CLAIM OF APPLICANT

9.      Ms Cabban gave evidence before us.  We accept that Ms Cabban had endeavoured to recall the events of 17 March 2006 in which she experienced an attack of shingles.  She stated that she had an attack of shingles and a severe headache after working under a flashing light in the office.  In her claim form, she stated that the injury resulted from an “overhead flashing light in office resulting in bad headaches, very red eye and rash which progressed to be shingles”.

MEDICAL EVIDENCE

10.     Ms Cabban attended her general practitioner (Dr Shapland) on 20 March 2006.  Dr Shapland then certified that Ms Cabban was unfit to continue in her usual occupation for 2-3 days [T5].  On 23 March 2006, Dr Shapland then certified that Ms Cabban was unfit to continue her usual occupation for a further 7 days [T6].

11.     On 18 May 2006, Dr Shapland diagnosed Ms Cabban as suffering from shingles.  In her report, she stated that Ms Cabban had a rash over her right upper forehead and as at 23 March 2006 this rash had spread to her right eye.  In her report, Dr Shapland remarked that the condition “often occurs when a person is a bit tired and run down, so it could possibly be work related if she was under a lot of stress, or working extra shifts: but I did not ask her this at the time so that I cannot comment”.

12.     In a report prepared on 24 May 2006, Dr Ng certified that Ms Cabban was unfit for work on 24 May 2006 due to an eye condition [T9].

13.     In a medico-legal report dated 16 November 2006, Dr Chau remarked that she was not qualified to comment upon the cause of her shingles.  Dr Chau remarked that an infectious diseases physician may be able to comment further about this condition [T11].

14.     Dr Pitney, a dermatologist, reported on 17 August 2007 that on balance it seemed likely that Ms Cabban had suffered from herpes zoster.  Dr Pitney also commented that there was no pathological confirmation of that condition.  Dr Pitney, in his oral evidence, also mentioned that in the case of Ms Cabban there were atypical features of the herpes zoster condition.  Dr Pitney also reported that there was no clinical evidence of herpes zoster affecting the skin of Ms Cabban.

15.     Dr Pitney in his report opined that the attack of herpes zoster was not caused by any featural aspect or aspect of her employment with the Commonwealth.  Dr Pitney also reported that he was not aware of any established medical studies to support the view that a herpes zoster condition was caused by stress.  Dr Pitney stated that standard texts on dermatology (Skin Pathology and Textbook on Dermatology) do not mention stress as being a cause of herpes zoster.  Dr Pitney also confirmed, in answer to questions from the Tribunal, that he was not aware of any opinion of his peers in the profession that supported the viewpoint that a herpes zoster condition was caused by stress.

16.     A report from Dr Leong dated 13 September 2007 was admitted into evidence:  exhibit 2.  Dr Leong makes the comment that the onset of the shingles condition was a related condition to the adjustment disorder with mixed anxious and depressed mood suffered by Ms Cabban.  However, Dr Leong commented that it is outside his area of expertise to comment on the link between stress and the onset of herpes zoster, and that it would probably be best to seek an opinion from an immunologist and/or infectious diseases physician for a more definitive opinion.

CONSIDERATION

17.     We point out that “the fundamental obligation of the Tribunal is to base its decision on evidence which has such degree of probative value as is appropriate having regard to the nature of the decision”[1].

[1] Re Ileris and Comcare (1999) 30 AAR 98 at 121.

18.     The case of Ms Cabban is based on her claim that the herpes zoster condition was caused by stress in the workplace.  At the hearing, she stated that she did not claim that the flashing light was the cause of the condition.

19.     In deciding this application, we have considered the medical evidence that is before us.

20.     We find that on the balance of probabilities that on or about the 17 March 2006, Ms Cabban suffered from a herpes zoster condition.  In making this finding, we rely upon the report of Dr Pitney who considers that on balance it is likely that Ms Cabban has suffered this condition.  We also note that her ophthalmologist considers that the history of unilateral pain behind the eye and the development of ocular scarring are consistent with the occurrence of a herpes zoster condition.

21.     There is a divergence of medical evidence before us concerning whether the herpes zoster condition that Ms Cabban experienced could be caused by stress.  We rely upon the opinion of Dr Pitney who is an experienced dermatologist.  Dr Pitney considers that the condition was not caused by stress.  We do not consider the contrary viewpoint of Dr Leong to have any probative value as he was expressing an opinion on a matter which is outside his area of expertise.

22.     We also mention that before us as evidence was material from the internet which suggested that there is a link between stress and herpes zoster: see exhibit 3.  Some of this material included abstracts.  We note that in one of the abstract of a paper by Janice M Livengood Ph.D. on “The Role of Stress in the Development of Herpes Zoster and Postherpetic Neuralgia” there is an acknowledgement that one researcher (Schmader) did not find that the association between psychologic stressors and herpes zoster achieved any statistical significance.

23.     We cannot rely on that internet material to find that there is a link between stress and herpes zoster.  In any event, Ms Cabban in her final submissions quite properly recognised that this material only suggested that there may be the existence of such a link.

DECISION

24.     We affirm the decision under review.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member and Dr M Denovan, Member.

Signed:  .........................[Sgd].........................................
               Elizabeth Young, Research Associate

Date/s of Hearing  9 December 2008
Date of Decision  18 December 2008  
For the Applicant  The applicant was self-represented
Counsel for the Respondent     Mr Rob King-Scott
Solicitor for the Respondent     Mr Peter Crethary