Grant Barons and Comcare
[2013] AATA 667
[2013] AATA 667
Division General Administrative Division File Number
2012/4495
Re
Grant Barons
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Dr J Chaney, MemberDate 19 September 2013 Place Perth The decision under review is affirmed.
.....................[sgd]...................................................
S D Hotop
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employee – applicant travelled by aircraft from Perth to Cocos Islands on 1 March 2010 for purpose of employment by Commonwealth – applicant suffered scrotal cellulitis (Fournier’s gangrene) on 2 March 2010 – applicant treated with antibiotic medication including gentamicin on 3 March 2010 – applicant subsequently developed bilateral sensorineural hearing loss – applicant claimed compensation – applicant’s scrotal cellulitis not a compensable injury – applicant’s bilateral sensorineural hearing loss not a compensable injury – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 4(3), s 5(1), s 5(9), s 5A (1), s 5B and s 14(1)
REASONS FOR DECISION
Deputy President S D Hotop
Dr J Chaney, Member19 September 2013
Introduction
Grant Barons (“the applicant”) was employed as a Director with the Department of Regional Australia, Local Government, Arts and Sport (“the Department”) at all material times, before retiring in August 2011.
On 8 March 2012 the applicant lodged with the Department a completed Claim for Workers’ Compensation form, dated 22 February 2012, whereby he claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) in respect of a condition described as “bilateral severe sensori-neural deafness”. The applicant’s claim was accompanied by a Medical Certificate for Workers’ Compensation form completed by Dr Clinton Stanton, General Practitioner, dated 2 February 2012, certifying that:
·he examined the applicant on 4 March 2010;
·the diagnosis of the applicant’s relevant condition is “bilateral severe sensori-neural deafness”;
·based on the applicant’s history, his opinion is that that condition was caused by “aminoglycoside antibiotic therapy and hyperbaric oxygen therapy in March 2010 for fulminant scrotal cellulitis”.
On 10 May 2012 a delegate of Comcare (“the respondent”) made a determination under SRC Act disallowing the applicant’s “claim for compensation for
·Inflammatory disorders of male genital organs and
·Sensorineural hearing loss (bilateral) …”.
Following a request by the applicant for a reconsideration of the abovementioned determination, a Senior Review Officer of the respondent, on 16 August 2012, made a “reviewable decision” under s 62 of the SRC Act affirming that determination.
On 9 October 2012 the applicant lodged with the Tribunal an application for review of the abovementioned reviewable decision.
The Evidence
The evidence before the Tribunal comprised the “T Documents” (T1–T40, pp 1–145) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and the following evidence provided at the hearing:
·Exhibits A1–A3 tendered by the applicant;
·Exhibits R1–R3 tendered by the respondent; and
·the oral evidence of the applicant and of Dr Clinton Stanton.
The Applicant’s Evidence
The applicant gave oral evidence-in-chief as follows:
·he was employed by the Federal Government as the Director of the Perth Territories Office within the Department, responsible for the provision of State Government services to Indian Ocean islands, Cocos Islands and Christmas Island;
·the Department requested that he accompany representatives of a new airline services provider on a visit to Cocos Islands to meet the local community;
·he flew to Cocos Islands, via Christmas Island, on 1 March 2010;
·the total duration of the flight to Cocos Islands was 6 hours 45 minutes comprising the following flights: Perth–Learmonth (1 hour 40 minutes), Learmonth–Christmas Island (3 hours 30 minutes), Christmas Island–Cocos Islands (1 hour 35 minutes), with two refuelling stops (at Learmonth and Christmas Island) of 30 minutes’ duration each;
·his flight was on board a relatively small aircraft with a capacity of up to 70 passengers, which was full, making it difficult to get up and move around during flight so that he had to remain seated throughout the flight;
·on 2 March 2010 he attended a meeting with local officials, during which he had to excuse himself in order to micturate;
·while doing so he noticed his urine “contained a visible quantity of blood”;
·he immediately telephoned his GP in Perth, Dr Stanton, who advised him to stop taking his “Warfarin” medication and seek medical advice and attention on the Island;
·he then saw a local GP, Dr Davie, and on 3 March 2010 he was assessed by Dr Davie at the local Health Centre and was given intravenous antibiotics and advised to see his GP in Perth as soon as possible;
·he returned to Perth on 3 March 2010;
·he saw Dr Stanton at 9.00 am on 4 March 2010 and was then referred to a specialist, Dr Rowling, whom he saw at 2.00 pm on 4 March 2010, and he was admitted to Mount Hospital at 4.00 pm on 4 March 2010 where a cystoscopy was performed;
·he was immediately commenced on antibiotic treatment combined with 4 days of hyperbaric oxygen therapy at Fremantle Hospital;
·he first became aware that he had been administered gentamicin medication when, on 4 March 2010, Dr Stanton informed him that his medical records received from the Health Centre on Cocos Islands stated that he had been administered that medication at that Health Centre on 3 March 2010;
·on 27 April 2010 he first advised Dr Stanton that he was now suffering hearing loss.
In cross-examination the applicant gave evidence as follows:
·the scrotal cellulitis (Fournier’s gangrene) condition which he suffered on his visit to Cocos Islands on 1 – 3 March 2010 could not have been caused other than by the flight thereto on 1 March 2010;
·he did not know whether his type 2 diabetes and obesity conditions were contributing factors;
·his fluid levels and glucose levels have fluctuated over time but have generally been well-controlled by medication;
·prior to March 2010 he periodically had build-ups of wax in his ears which were cleared by syringing, after which his hearing appeared to return to normal.
Relevant Medical Material Included in the T Documents and Exhibits
Clinical notes regarding the applicant’s medical treatment at the Cocos Islands Health Centre on 2 and 3 March 2010 state as follows:
“ Tuesday March 2 2010 16:05:14
Registered Nurse – Kathy Slagter
Attends c/o pain in groin and testicles since this morning
also states that he has been voiding blood and has pain on urination
is feeling generally unwell, a little breathless
has multiple medical issues – coronary, diabetes, musculoskeletal
saw dr davie on the jetty who asked him to come in to clinic and be assessedExamination:
General:
Temp:37.5 Tympanic
Pulse (Sitting): 76 Regular
Respiratory:
Resp. rate: 24
Urinalysis shows large blood, protein ++ and leukocytes
discussed with Dr Davie
he suggests norfloacillin 400mg 1 BD
also suggests some panadeine for pain
also given a couple of ural sachets
suggested he try to drink a reasonable amount of fluid – but not too much
to contact me if condition worsens anytime tonight
appt made for him to be reviewed tomorrow by dr davieReason for contact:
Urinary tract infection
Wednesday March 3 2010 11:59:28
Dr John Davie
Nasty UTI and renal tenderness yesterday evening Started on Noroxin
Much improved today but as acute epididymorchitis Apyrexial, but dehydrated
PR 80 min Reg
On Warfarin Had AAA and Ao valve replaced …Chest Clear ENT NAD PR not done BUT NEEDS IT
IVI established and Given 1 litre N saline IVi Tramadol 100mg PO stat and 160mg Gentamycin imi stat
See his own Dr in Perth ASAP
…” (T6, pp 11–12).
By letter dated 4 march 2010 Dr Stanton referred the applicant to Mr Chris Rowling, Urologist, as follows:
“ …
Grant is a 60 year old man who developed frank haematuria two days ago, promptly followed by scrotal redness and swelling. He is the administrator for Christmas and Cocos Islands and he was on Cocos Island when this occurred. No microbiology samples could be collected. The doctor there gave him 160 mg Gentamycin IV stat and oral Norfloxacin 400 mg bd started. He is no more comfortable but is afebrile. Warfarin was ceased two days ago.
His cardiologist is Mark Nidorf and he is willing to be involved in managing Grant’s cardiac and fluid status.
Other medical problems include
Osteoarthritis; knee – right medial exacerbation from fall 2009, uni-compartmental replacement Nov 2009
On anti-coagulants – Indication: Prosthetic aortic valve Target INR range: 2.0 – 2.5
Failure; ventricular; left
Pacemaker – DDDR 2006
Repair/replace; valve; aortic – 2006 for bicuspid aortic valve, requires antibiotic prohpylaxis for invasive procedures
Glaucoma
Diabetes; Type 2
Aneurysm; aortic – Ascending aorta
Palsy; Bells – resolvedMedications include
Marevan (Tablets) 3 mg as directed
Colgout (Tablets) 500 mcg 1 Tablets, every two hours as tolerated
Aldactone (Tablets) 25 mg (blister) 2 mane
Tritace (Tablets) 1.25 mg 1 Tablets, at night
Xalatan (Eye Drops) 50 mcg/1 ml 2.5 ml 1 Eye Drops, at night both eyes
Progout (Tablets) 100mg 1 Tablets, in the morning
Frusemide 40 mg (Urex Tablets) 40 mg mane
Marevan (Tablets) 5 mg as directed
Marevan (Tablets) 1 mg as directed
Diamicron MR (Modified Release Tablets) 30 mg 120 mg/day.
Panadol Osteo (Modified release tablets) 665 mg 2 Modified release tablets, three times daily
Metformin hydrochloride 1000 mg (Diabex (Tablets)) 1 bd
Simvar (Tablets) 10 mg 1 odAllergies: 16 Jul 2007 – (NKA)
Thank you for your opinion and ongoing management as you feel appropriate.
…” (T5)
A report of Mr Rowling, dated 4 March 2010, addressed to Dr Stanton, states as follows:
“ …
Active Problems: right scrotal pain swelling
Hematuria, the dysuria
All: Nil known Meds: Tritace PMH: UTI
Metformin DM
Aldactone hemi knee repl
Frusemide pacemaker
Dithiazide AVR
carvedilol Aortic an ascending
warfarin gout
allopurinol borderline glaucoma
simvastatinS/E: urine one month ago contaminant pyuria for dysuria
very swollen
circumcised
urine sprays when voids normallyGenitalia: swollen penis and right hemiscrotum, erythematous maks [sic] onto abdomen
Many thanks for asking me to see Mr Barons with what looks like early Fournier’s [sic]. I suspect he has a stricture and his UTI has caused problems beyond the stricture.
I have arranged admission with a view to IV antibiotics and early debridement if he does not settle. Concurrent cystoscopy with a view to optical urethrotomy and perhaps even temporary suprapubic will be considered too.
…” (T6)
In a follow-up report, dated 5 March 2010, to Dr Stanton, Mr Rowling confirmed that the applicant had undergone a cystoscopy on that date, and continued:
“ …
Findings: Urethra Normal
Sphincter Normal
Prostate Small bilobar non-occlusive looking
Bladder neck NormalBladder Mucosa Resolving cystitis
Uretric Normal
orifae
Trabeculation I/IVScrotal exam Indurated hard right testis and epididymis, dark area inferiorly
Assessment: no stricture found, underlying epididymo-orchitis
Post-operative orders: Food and fluids as tolerated, Post-operative observations, for transport to hyperbaric unit 4 pm (unable to make that because he was not breathing well post op).
…”(part of Exhibit A2)
A report of Ms Lisa Giles, Audiologist, dated 29 June 2010, addressed to Dr Stanton, states as follows:
“ …
Thank you for referring Mr Barons. He was seen at the Lions Hearing Clinic in Winthrop for audiological assessment. Please find attached a copy of the results.
I understand that Mr Barons has experienced unilateral hearing loss in his right ear following hyperbaric oxygen therapy. He reported that the grommet was removed from his right ear three weeks ago, and his hearing has not recovered in that ear. Mr Barons reported that in the last week and a half he has experienced two attacks of vertigo, with the last one occurring on Sunday and lasting for an hour. Mr Barons’ wife advised him to take Stematil to ease his symptoms. Over the same time period Mr Barons reported that he has begun to experience constant, unilateral bothersome tinnitus in his right ear. Mr Barons’ sister also experiences unilateral tinnitus, vertigo and hearing loss. No history of middle ear pathology or noise exposure was reported.
Otoscopic examination revealed a blood spot on the right tympanic membrane and a grommet in situ in the left ear. Tympanometry results indicated a type A tympanaogram consistent with normal middle ear pressure and compliance in the right ear. No seal could be obtained in the left ear.
Pure tone audiometry indicated a flat moderate sensorineural hearing loss in the right ear and a mild to moderate sensorineural hearing loss in the left ear.
Speech audiometry indicated excellent discrimination in the left ear when speech was presented at normal conversational levels and poor discrimination in the right ear when speech was presented at appropriately amplified levels.
SUMMARY: Mr Barons presents with a flat moderate sensorineural hearing loss in the right ear and a mild to moderate sensorineural hearing loss in the left ear. In light of Mr Barons’ symptoms, his poor speech discrimination in the right ear and the asymmetrical nature of his loss referral for further investigation by an ENT specialist is strongly indicated. The option of amplification was discussed briefly with Mr Barons today and he will return for a full hearing aid discussion following medical clearance if he would like to pursue this option.
…” (T8, p 14)
By letter dated 25 August 2010 Dr Stanton referred the applicant to Dr Stephen Rodrigues, ENT Surgeon, as follows:
“ …
Grant is a 61 year old man who has developed profound deafness following hyperbaric oxygen therapy for severe scrotal cellulitis. Grommets were inserted prior to the treatment. I have not been able to establish what intravenous antibiotics were used but suspect that gentamicin would quite possibly have been used. I enclose Lions Hearing assessment.
…
Thank you for your opinion and ongoing management as you feel appropriate.
…” (T9)
A report of Dr Rodrigues, dated 27 August 2010, addressed to Dr Stanton, states as follows:
“ …
Many thanks for asking me to see Mr Barons. He was treated with hyperbaric oxygen for severe scrotal cellulitis earlier this year. I believe he had grommets placed to prevent barotrauma. During the course of his treatment he noticed a sudden onset of right sensorineural hearing loss. I note his past history of Bell’s palsy. He has also had aortic valve replacement for which he is on Warfarin, chronic airways disease and has had a pacemaker inserted. He denies any ear pain whilst in the dive chamber. He has had two spells of vertigo in the past lasting a few hours at a time but has had none in the last month.
Examination today shows a patent left tube. The right drum was normal. The head impulse test was positive on the right. There was no nystagmus and Romberg testing was negative. Mr Barons’ sudden sensorineural hearing loss is most likely viral in origin. I have recommended a contrast enhanced CT of his internal auditory canals to exclude a vestibular schwannoma. I will review him with the results and discuss treatment options at that stage.
…” (T10)
A report of Dr Rodrigues, dated 23 March 2012, addressed to the respondent, states as follows:
“ …
Thank you for your letter regarding Grant Barons. With respect to your schedule of questions, I enclose my replies.
When I initially saw Mr Barons on 27 August 2010, it was not clear to me that he had been given Gentamycin. The referral letter from the Doctor said that he may have been given it. Given his history, Gentamycin Ototoxicity is certainly a consideration in the causation of his sensorineural deafness. As the Gentamycin was given systemically, one would expect both ears to be affected, however the unilateral nature of the deafness does not rule out Gentamycin as a cause in Mr Barons’ hearing loss. I am unsure as to the exact dosage and levels of Gentamycin given and whether Aminoglycoside monitoring was performed and if so, whether or not therapeutic levels were maintained. The risk of hearing loss secondary to Gentamycin certainly increases if toxic doses were given and the hospital chart would have to be reviewed to ascertain this.
As per question 2, once again in the letter dated 27 August 2010 as I was unaware as to the actual Antibiotics given, initial diagnosis was a sudden sensorineural hearing loss of probable viral origin. If it is confirmed that Mr Barons was indeed given Gentamycin then the Gentamycin would be the most likely cause of his deafness. In the absence of a pre-treatment audiogram, I am unable to comment as to whether the high frequency hearing loss in the left ear was pre-existing, in which case it may well have been due to a combination of age related hearing loss and noise induced hearing loss.
With respect to question 3, once again as I do not have a pre-morbid audiogram, I cannot comment on whether the changes in the left ear are related to the treatment or are pre-existing. His current condition is unlikely due to pre-existing presbyacusis [sic] (age-related hearing loss).
…” (T30)
By letter dated 30 May 2012 Dr Stanton referred the applicant to Dr Duncan McLellan, Infectious Diseases Physician and Clinical Microbiologist, as follows:
“ …
Grant is a 63 year old man who has recently retired from the Commonwealth public service administering Christmas Island and Cocos Islands due to ill health. I fully support his decision to retire on medical grounds.
A separate issue to his retirement is that he is making a claim under Comcare for severe bilateral sensorineural deafness resulting from aminoglycoside therapy with hyperbaric oxygen treatment for Fournier’s gangrene. His claim has been disallowed. The mechanism of injury is not disputed. What is disputed is whether his employment contributed to the development of the infection.
I enclose my report which gives the relevant background information. What Grant needs is your opinion as to whether there is a relationship between his employment and his illness. My feeling is that prolonged sitting in tight aircraft chairs for a very overweight man with type diabetes [sic] may have contributed significantly to the development of Fournier’s gangrene.
Other medical problems include
Actinic skin damage – Nodular BCC left pinna May 2012, treated with radiotherapy
Spondylosis;lumbar – Multi-level facet disease, L4/5 anterolisthesis, left L4 nerve root compression Nov 2011
Tinea pedis – Trichophyton rubrum demonstrated 01.04.11, terbinifine three months
Gout
Otosclerosis – right noted on CT Sep 2010, no functional effect
Deafness;sensorineural – bilateral following hyperbaric oxygen therapy/parenteral antibiotics for scrotal cellulitis. Right otosclerosis demonstrated on CT Sep 2010. Bilateral hearing aids.
Cellulitis – scrotal Feb [sic] 2010, requiring hyperbaric oxygen therapy
Osteoarthritis;knee – right medial exacerbation from fall 2009, uni-compartmental replacement Nov 2009
On anti-coagulants – Indication: Prosthetic aortic valve Target INR range: 2.0 – 2.5
Failure;ventricular;left
Pacemaker – DDDR 2006
Repair/replace;valve;aortic – 2006 for bicuspid aortic valve, requires antibiotic prophylaxis for invasive procedures
Glaucoma
Diabetes; Type 2
Aneurysm; aortic – Ascending aorta
Palsy;Bells – resolvedMedications include
Ostelin Vitamin D (Capsule) 25 mcg (equiv. vit D3 1000 IU) 2 Capsule, in the morning
Panadol Osteo (Modified release tablets) 665 mg 2 Modified release tablets, three times daily
Xalatan (Eye Drops) 50 mcg/1 ml 2.5 ml 1 Eye Drops, at night both eyes
Colgout (Tablets) 500 mcg 1 Tablets, every two hours as tolerated
Aldactone (Tablets) 25 mg (blister) 2 mane
Metformin hydrochloride 1000 mg (Diabex (Tablets)) 1 bd
Marevan (Tablets) 5 mg as directed
Marevan (Tablets) 1 mg as directed
Movicol (Powder) (single dose sachets) 1 Powder, once daily
Glucagon hydrochloride 1 mg + 1 mL solv in prefilled syringe (equiv. 1 IU) (GlucaGen HypoKit (Powder for injection)) as directed
Tritace (Tablets) 1.25 mg 1 Tablets, at night
Simvar (Tablets) 10 mg 1 od
Dithiazide (Tablets) 25 mg Half tab mane
Januvia (Tablets) 100 mg 1 Tablets, in the morning
Allopurinol 300 mg (Progout (Tablets)) 1 Tablets, in the morning
Dilatrend (Tablets) 25 mg 1 tab bd
Frusemide 40 mg (Urex Tablets) 40 mg mane
Marevan (Tablets) 3 mg as directedAllergies: 13 Sep 2010– Bactrim - photosensitivity
Thank you for your opinion and ongoing management as you feel appropriate.
…” (part of Exhibit R1)
A report of Dr McLellan, dated 5 July 2012, addressed to Dr Stanton, states as follows:
“ …
Thank you for referring Grant. The reason for today’s consultation is an assessment regarding the episode of scrotal cellulitis and right epididymo-orchitis that developed in March 2010 in the context of a trip to the Indian Ocean Territories as part of his job in the Commonwealth Public Service (Administrator for the Indian Ocean Island Territories). Grant has lodged a workers compensation claim with COMCARE that his genital infection (and complicating sensorineural hearing loss that developed as a consequence of treatment for the infection) was directly attributed to his work in the public service.
Grant’s medical history is significant for Type 2 diabetes and morbid obesity (weight in March 2010 was ~135kg). He also has significant cardiac issues including a previous Bentall’s procedure for which he is anticoagulated with warfarin.
Of significance I note that he was assessed by yourself on 29 January 2010 for dysuria. An MSU was arranged which showed significant pyuria (>100 white cells/mL) but with no significant bacterial growth. It does not appear that he received any antibiotics at this time or during the month of February 2010. Grant does not remember any particular disturbance in his urinary flow in the days leading up to his flight to the Cococs [sic] Islands in March 2010.
On March 1st, 2010 he flew from Perth to the Cocos Island (via Exmouth) a trip of some 5 hours in duration. Because of his obesity and the cramped seating conditions his penis became retracted into perineal fat folds. This would have likely resulted in significant scrotal pressure and possible obstruction of urethral outflow. He noted that towards the end of the flight that [sic] he had become incontinent of urine.
The following day (March 2nd, 2010) he developed haematuria and scrotal swelling/inflammation. It was at this time that he was seen by a medical officer on Cocos Islands and gentamicin was administered. He had progressive scrotal swelling and returned to Perth on March 3rd. He was admitted to the Mount Hospital on March 4th under the care of Dr Chris Rowling (urologist).
Dr Rowling’s assessment at the stage revealed a swollen penis and right hemiscrotum with erythematous marks on the abdomen. He went onto [sic] perform cystoscopy which revealed bladder testis and epididymis consistent with underlying epididymo orchitis. He went on to receive intravenous antibiotics and hyperbaric therapy. He did not require surgical debridement or drainage. He was discharged on oral antibiotics. The scrotal swelling resolved over the subsequent 6 weeks and he made a full recovery from this particular genito-urinary infection.
Unfortunately he has also developed bilateral sensorineural deafness which has been attributed to the gentamicin administered on Cocos Island. As a result of the deafness Grant found it difficult to carry out his duties as a public servant and he retired prematurely in August 2011. He has also incurred significant costs as a result of his deafness (ie hearing aids).
Based on the MSU performed in late January 2010 it is possible that he already had an established cystitis (or at least asymptomatic bacteriuria) prior to boarding the flight to the Cocos Islands. However he had no symptoms prior to boarding the flight of epididymo-orchitis or scrotal cellulitis. It does seem plausible that the subsequent development of epididymo orchitis and scrotal cellulitis could be attributed to the extended flight to the Cocos Islands. In particular the peno-scrotal pressure/oedema (and resultant obstruction of urethral outflow) that would have resulted from an obese man in a cramped seated position for 5 hours would have contributed to the subsequent development of the epididymo-orchitis and scrotal cellulitis.
I will forward a copy of this letter to COMCARE for their perusal and consideration.
..” (T36)
The Evidence of Dr Clinton Stanton
Dr Stanton said that he has been the applicant’s treating general practitioner for over 10 years.
Dr Stanton confirmed that, at the respondent’s request, he had provided a report, dated 22 April 2012, to the respondent regarding the applicant’s claim for compensation. That report states as follows:
“ …
Thank you for your request for a report dated 30 March 2012. You are making enquiries regarding a compensation claim submitted by the above for bilateral severe sensory neural deafness. I respond to your specific questions.
1.What date did Mr Barons first consult you regarding the claimed condition? Please detail the history of Mr Barons condition as reported to you.
It is my opinion that Mr Barons bilateral severe sensory neural deafness is the consequence of therapy for an episode of fulminant scrotal cellulitis (also known as Fournier’s gangrene) in March 2010. I will include reference to this illness in my response.
Mr Barons first contacted me about the fulminant scrotal cellulitis by telephone, I believe from Cocos Island, on 02 March 2010. He had developed frank haematuria with dysuria, but without blood clots in his urine. I advised him to cease his warfarin therapy. He was given oral antibiotics by the local medical officer.
Mr Barons consulted me in person on 04 March 2010 regarding this problem. He had a tense red swelling of the scrotum on examination. I referred him immediately for specialist urological care. He was admitted and treated with intravenous antibiotics including the aminoglycoside gentamicin. He was given hyperbaric oxygen therapy as part of the treatment which required the urgent placement of grommets in both ear drums. Fortunately he survived the life threatening illness.
Mr Barons first mentioned hearing difficulties to me on 27 April 2010 and there was steady increase in severity of the deafness over the next few months and indeed the degree of hearing loss continues to worsen. He was referred for a further ENT opinion.
Audiometry has identified severe bilateral sensorineural deafness. CT Imaging to exclude an acoustic neuroma identified right otosclerosis but the audiometry indicates that this is having no functional effect. The finding that the deafness is sensorineural also excludes the grommets and barotrauma being responsible for his hearing loss.
2.In your certificate dated 2 February 2012 you advise that Mr Barons condition is caused by ‘Aminoglycoside antibiotic therapy and hyperbaric oxygen therapy in March 2010 for fulminant scrotal cellulitis’. What were Mr Barons’ original presenting symptoms?
Mr Barons originally presented with dysuria and frank haematuria with pain in his scrotum. Following treatment he began to complain of hearing loss, initially on the right, then progressing to include the left.
3.When did Mr Barons contract ‘fulminant scrotal cellulitis’? And what are the causing factors?
Mr Barons developed fulminant scrotal cellulitis around 01 March 2010.
I enclose a portion of a medical review article for your information.
Fournier’s gangrene (FG) is a rare but life threatening disease. Although originally thought to be an idiopathic process, FG has been shown to have a predilection for patients with diabetes as well as long term alcohol misuse; however, it can also affect patients with non-obvious immune compromise. The nidus is usually located in the genitourinary tract, lower gastrointestinal tract, or skin. FG is a mixed infection caused by both aerobic and anaerobic bacterial flora. The development and progression of the gangrene is often fulminating and can rapidly cause multiple organ failure and death. Because of potential complications, it is important to diagnose the disease process as early as possible. Although antibiotics and aggressive debridement have been broadly accepted as the standard treatment, the death rate remains high.
Aetiology
Initially, FG was defined as an idiopathic entity, but diligent search will show the source of infection in the vast majority of cases, as either perineal and genital skin infections. Anorectal or urogenital and perineal trauma, including pelvic and perineal injury or pelvic interventions are other causes of FG. The most common foci include the gastrointestinal tract (3%-50%), followed by the genitourinary tract (20% – 40%), and cutaneous injuries (20%). Box 1 lists the commonest causes. Comorbid systemic disorders are being identified more and more in patients with FG, the commonest being diabetes mellitus and alcohol misuse. Diabetes mellitus is reported to be present in 20% –70% of patients with FG and chronic alcoholism in 25% – 50% patients (box 2). The emergence of HIV into epidemic proportions has opened up a huge population at risk for developing FG.
Box 1 Aetiology of Fournier’s gangrene
Urogenital
Urethral stricture
Indwelling catheter
Traumatic catheterisation
Urethral calculi
Prostatic biopsy
Vasectomy
Insertion of penile prosthesis
TVT procedure
Hydrocele aspiration
Delayed rupture of ileal neobladder
Intracavernosal cocaine injection
Genital piercing
Perineal trauma (including iatrogenic, mentioned above)
Anorectal
Peranal abscess
Rectal biopsy
Anal dilatation
Haemorrhoidectomy
Rectosigmoid malignancy
Appendicitis
Diverticulitis
Gynaecological
Infected Bartholin’s gland
Septic abortion
Episiotomy wound
Coital injury
Genital mutilationPostgrad Med J. 2006 August; 82(970): 516-519
doi: 10.1136/pgmj.2005.042069
Mr Barons has type 2 diabetes which is a known predisposing factor. The actual cause is a bacterial infection by probably a mixture of organisms that allow rapid progression of tissue necrosis and sepsis. A common thread to the known aetiologies is perineal trauma or compromise.
4. Was Mr Barons ‘scrotal cellulitis’ related to his employment? And is so, how?
I cannot be certain that Mr Barons scrotal cellulitis was directly related to his employment. It is very tempting to suspect that prolonged sitting in constrained aircraft seating for such a large man decreased blood flow to his perineum and was involved in precipitating the illness. I am aware that Mr Barons travelled many hours in his employment
5.In the report from Dr Rodrigues dated 27 August 2010 he states ‘I believe he had grommets placed to prevent barotrauma’, and goes on to state ‘Mr Barons’ sensorineural hearing loss is most likely viral in origin’. Clinical notes have been provided dated 23 November 2004 with Narelle Lukins – registered nurse – in which she states ‘Blocked R ear since swimming on Saturday, otherwise well, nil other history of injury’. Could Mr Barons’ sensorineural hearing loss be caused by a viral ear infection? And has he presented with any symptoms of viral ear infection?
It may assist you if I outline the broad classifications of hearing loss.
Conductive hearing loss is caused by pathologies from the outer ear, through the ear canal, ear drum, ossicles and oval window of the cochlear. Sensorineural deafness is caused by pathologies after the oval window, usually involving the hair cells of the cochlear, the auditory nerve or connections of the auditory nerve in the brainstem.
Grommets are small tubes placed across the ear drum. They could be implicated in causing conductive hearing loss but not sensorineural hearing loss.
A blocked ear from swimming is a common example of a conductive hearing loss. I have been Mr Barons’ general practitioner for many years and he has not complained of hearing loss prior to mid 2010, so the observation of 2004 are likely to be due to a blocked from swimming that subsequently settled [sic]. A blocked ear from swimming would not cause a sensorineural hearing loss.
Dr Rodrigues has identified Mr Barons’ hearing problem to be sensorineural in nature. There is no disagreement about the nature of the hearing problem, but there is about the cause. I do not agree with Dr Rodrigues opinion that the cause is likely to be viral.
Mr Barons has not presented to me with symptoms of a viral ear infection at any time.
I have enclosed a copy of a publication by Australian hearing which goes into some of the issues in layman’s terms. It lists the causes of acquired sensorineural hearing loss as
·The ageing process
·Excessive noise exposure
·Diseases such as meningitis and Meniere’s disease
·Viruses, such as mumps and measles
·Drugs which can damage the hearing system (called ototoxic drugs)
·Head injuries.
Sensorineural hearing loss due to the ageing process is characteristically slow to progress. Mr Barons’ hearing loss has progressed rapidly over a few months.
Mr Barons does not report any recent excessive noise exposure to account for his symptoms.
Mr Barons has not had an illness such as meningitis or Meniere’s disease.
Viruses, which can include others besides mumps and measles is a possibility. However, there is no known episode of a viral illness to account for Mr Barons’ hearing loss and this possibility must be weighed up against the known reality of a dramatic life threatening illness requiring heroic treatment with the known complication of inflicting severe bilateral sensorineural hearing loss on a proportion of patients treated.
Mr Barons received ototoxic drugs during his treatment for fulminant scrotal cellulitis and began to note hearing loss within weeks of his recovery.
Mr Barons has not had a head injury.
6.Dr Rodrigues states in his report dated 27 August 2010 ‘I note his past of bells palsy’ (sic) I also make reference to the report by Lisa Giles – Audiologist dated 29 June 2010 in which she states ‘Mr Barons’ sister also experienced unilateral tinnitus, vertigo and hearing loss’. With this in mind, please provide details of any relevant history, pre-existing or underlying condition suffered by Mr Barons. And: if applicable; Do you consider the current condition suffered by Mr Barons is an aggravation of the pre-existing or underlying condition?
Mr Barons developed left Bell’s palsy in 2005 from which he has made a complete recovery. I was the attending physician for this illness. Bell’s palsy is a loss of motor function of the facial muscles supplied by the facial nerve (7th cranial nerve) and is thought to be due to swelling of the nerve causing ischaemia of the nerve and subsequent nerve death by the nerve becoming squashed where it leaves the skull via a small hole. Bell’s palsy of the classical type is not associated with hearing loss. There is a subtype of Bell’s palsy called Ramsay Hunt syndrome where the auditory nerve is involved in herpes zoster (or shingles). Part of the facial nerve runs close to the auditory nerve inside the inner ear and can be affected in this problem, in a different way to normal Bell’s palsy. This problem is always unilateral and the patient is usually left considerably disabled. I believe that Dr Rodrigues appropriately made reference to the known episode of Bell’s palsy as if it was due to Ramsay Hunt syndrome and the hearing loss was unilateral then it may have been relevant. However, the pattern of illness makes it clear that the history of Bell’s palsy is not of relevance to the current problem.
The audiologist’s comments are appropriate in obtaining a history for someone with hearing difficulties. Family history is always useful but a family history of unilateral tinnitus, vertigo and hearing loss is difficult to interpret in someone with progressive bilateral sensorineural hearing loss. Mr Barons has no relevant history of another possible cause for his current problem that I am aware of. The contribution of his diabetes as a known association of fulminant scrotal cellulitis has been already mentioned.
7.What are the main factors which you consider have contributed to the condition of sensorineural hearing loss. Please include both employment and non-employment related factors. Please note: In answering this question, please provide specific details of incident/s and/or contributing factors.
It is my opinion that Mr Barons’ bilateral severe sensory neural deafness is the consequence of therapy with ototoxic medications for an episode of fulminant scrotal cellulitis (also known as Fournier’s gangrene) in March 2010. The fulminant scrotal cellulitis would have been more likely to occur for Mr Barons due to his type 2 diabetes, obesity and prolonged confinement in aircraft chairs during his employment.
…” (original emphasis) (T26, pp 77–81)
In the course of an extensive cross-examination Dr Stanton gave the following relevant evidence:
·in his opinion the applicant’s diabetes, obesity and cardiac condition, and his prolonged immobility on the flight to Cocos Islands on 1 March 2010, all contributed to his suffering scrotal cellulitis (Fournier’s gangrene) on 2 March 2010 but he cannot say to what extent each of those factors so contributed;
·nor can he “say for sure” that that prolonged immobility during the flight was a contributing factor in the applicant’s suffering that condition;
·in his opinion the applicant’s being administered with gentamicin on 3 March 2010 contributed to the applicant’s sensorineural hearing loss but he cannot say to what extent it so contributed.
In response to questions from the Tribunal, Dr Stanton gave the following evidence:
·the applicant, because of his overall medical condition, was “set up as a candidate” for suffering scrotal cellulitis, but the fact that it occurred shortly after a long flight made it “tempting for [him] to think that the flight was relevant” to the applicant’s suffering that condition, notwithstanding that he was already at risk of its occurring;
·although he is “not an expert” on this issue, he thinks that the applicant’s being confined for a long period on the flight “is what did it”, because that “caused tissue hypoxia and things just went crazy”.
Additional Medical Material
The applicant tendered in evidence a report of Dr Mark Nidorf, Cardiologist, dated 12 January 2010, addressed to Dr Stanton, which states as follows:
“…
PRINCIPAL CARDIAC DIAGNOSES:
1. Markedly dilated aortic root (5.7cm)
- Bental’s procedure (June 2006)
- Normal coronary arteries
- Normal LV size and function (June 2006)
- Dilated LV with moderate to severe LV dysfunction (Sep 2007)
- Dilated LV with mild to moderate LV dysfunction (Nov 2007)
- Dilated LV with preserved systolic function (July 2009)
2. Hypercholesterolaemia
3. DDDR pacemaker insitu (June 2006)
- Upgraded to biventricular AICD device (March 2009)
OTHER MAJOR DIAGNOSES:
- Non-insulin dependent diabetes - Obesity - Glaucoma - Gout - Previous Bell’s palsy - Venous insufficiency CURRENT CARDIAC MEDICATIONS
- Warfarin (INR 2.0-2.5) - Metformin - Lasix 40 mg bd - Xalantan eye drops - Aldactone 50 mg daily - Tritace 1.25 mg nocte - Dilatrend 25 mg bd
- Dithiazide 12.5 mg
- Zocor 10 mg - Allopurinol 100mg daily
Grant looks the best I have seen him for some time. He is back to where he was before surgery on his knee.
He is only requiring a small dose of Lasix, and together with the Dithiazide and Aldactone he is really holding his fluid nicely.
Thanks for monitoring his INR. I understand it has been a bit unstable but not untherapeutic.
His blood pressure is normal, his pacemaker is functioning well, there are no signs of fluid retention and his chest is clear.
He is due to go for a cruise – there is no cardiac contra-indication to that.
…” (Exhibit A3)
The Relevant Legislation
The SRC Act relevantly provides as follows:
“4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether or sudden onset or gradual development).
…
disease has the meaning given by section 5B.
…
employee has the meaning given in section 5, and also applies to persons 65 years of age or older.
…
impairment means the loss, the loss of the use, or the damage or malfunction, or any part of the body or of any bodily system or function or part of such system or function.
injury has the meaning given by section 5A.
…
significant degree has the meaning given by subsection 5B(3).
…
(3)For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if:
(a) compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and
(b) it was reasonable for the employee to have obtained that medical treatment in the circumstances.
…
5Employees
(1) In this Act, unless the contrary intention appears:
…
employee means:
(a)a person who is employed by the Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship; or
(b)a person who is employed by a licensed corporation.
…
(9)A reference to an employee in a provision of this Act that applies to an employee at a time after Comcare, an administering authority, a licensed authority or a licensed corporation has incurred a liability in relation to the employee under this Act includes, unless the contrary intention appears, a reference to a person who has ceased to be an employee.
…
5A Definition of 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.
…
5BDefinition of disease
(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.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
…
14Compensation for injuries
(1)Subject to this Part, Comcare 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.
…”
The Issues
The issues for the Tribunal’s determination, as stated in the Statement of Facts, Issues and Contentions filed by each party, are as follows:
“(a)Whether the Applicant’s inflammatory disorders of male genitals was contributed to, to a significant degree, by his employment with the Department of Regional Australia, Arts and Sport [sic].
(b)If so, whether the Applicant’s sensorineural hearing loss (bilateral) was caused by treatment for inflammatory disorders of male genitals with the antibiotic Gentamycin.”
The Tribunal notes that the abovementioned latter issue is not formulated consistently with s 4(3) of the SRC Act.
Analysis
There is no dispute that the applicant suffered an “ailment” (as defined in s 4(1) of the SRC Act) related to his genitalia on or about 2 March 2010. On the basis of the medical evidence before it, the Tribunal finds that the appropriate diagnosis of that ailment is “scrotal cellulitis (Fournier’s gangrene)” and that the applicant suffered that ailment on 2 March 2010. There is also no dispute that the applicant subsequently suffered bilateral sensorineural hearing loss, and the Tribunal, on the basis of the medical evidence before it, so finds.
The primary issue for the Tribunal’s determination is whether the scrotal cellulitis (Fournier’s gangrene) suffered by the applicant on 2 March 2010 was “contributed to, to a significant degree, by” the applicant’s employment by the Commonwealth.
It is common ground that the flight to Cocos Islands on 1 March 2010 was undertaken by the applicant for the purpose of his employment by the Commonwealth, and the Tribunal, on the basis of the applicant’s evidence, so finds. In presenting their respective cases in this proceeding, furthermore, the parties proceeded on the basis that that flight was the only relevant employment activity undertaken by the applicant to which the Tribunal should have regard in determining the issue referred to in paragraph 28 above.
The medical evidence before the Tribunal which relates to the issue referred to in paragraph 28 above comprises the evidence of Dr Stanton and the report of Dr McLellan dated 5 July 2102.
Dr Stanton’s relevant evidence may be fairly summarised as follows:
·in his report of 22 April 2012 (set out in paragraph 18 above), he stated:
“ … It is very tempting to suspect that prolonged sitting in constrained aircraft seating for such a large man decreased blood flow to his perineum and was involved in precipitating the illness. …”;
·in his referral letter of 30 May 2012 to Dr McLellan (set out in paragraph 17 above), he stated:
“… My feeling is that prolonged sitting in tight aircraft chairs for a very overweight man with type diabetes [sic] may have contributed significantly to the development of Fournier’s gangrene.”;
·in his oral evidence he acknowledged that he cannot “say for sure” that the applicant’s prolonged immobility on the flight to Cocos Islands on 1 March 2010 was a contributing factor in his suffering scrotal cellulitis on 2 March 2010 but he said that the fact that the applicant suffered that ailment shortly after that flight made it “tempting” for him to think that that flight precipitated that ailment.
In his report of 5 July 2012 (set out in paragraph 18 above), Dr McLellan relevantly stated:
“ … It does seem plausible that the subsequent development of epididymo orchitis and scrotal cellulitis could be attributed to the extended flight to the Cocos Islands. In particular the peno-scrotal pressure/oedema (and resultant obstruction of urethral outflow) that would have resulted from an obese man in a cramped seated position for 5 hours would have contributed to the subsequent development of the epididymo-orchitis and scrotal cellulitis.”
The Tribunal is not satisfied, on the basis of Dr Stanton’s evidence and Dr McLellan’s report, that the applicant’s abovementioned flight from Perth to Cocos Islands on 1 March 2010 contributed, to a “significant degree” (as defined in s 5B(3) of the SRC Act), to the ailment, namely, scrotal cellulitis (Fournier’s gangrene), suffered by the applicant on 2 March 2010. In the Tribunal’s opinion neither Dr Stanton nor Dr McLellan expressed an unequivocal opinion to that effect.
In the case of Dr Stanton, the close temporal proximity between that flight – which involved the applicant (an obese person with, inter alia, type 2 diabetes and a cardiac condition) sitting for a prolonged period in “constrained aircraft seating”, thereby making it “tempting” for him to “suspect” that the “blood flow to [the applicant’s] perineum” was thereby “decreased” – and the applicant’s subsequently suffering scrotal cellulitis, also made it “tempting” for him to “suspect” that that flight precipitated that ailment. In the Tribunal’s opinion, however, Dr Stanton’s evidence goes no further than to acknowledge the possibility that the applicant’s prolonged sitting in constrained seating on the flight from Perth to Cocos Islands on 1 March 2010 caused a decrease in blood flow to his perineum and thereby precipitated his scrotal cellulitis on 2 March 2010.
Similarly, Dr McLellan’s comments regarding the existence of a causal relationship between the applicant’s flight to Cocos Islands on 1 March 2010 and his suffering scrotal cellulitis on 2 March 2010, as expressed in his report of 5 July 2012, are, in the Tribunal’s opinion, couched in the language of speculation and possibilities – in particular, he refers to a “possible obstruction of urethral outflow” and states that it “does seem plausible” that the applicant’s subsequent development of scrotal cellulitis “could be attributed” to that flight. Unfortunately, Dr McLellan was not called as a witness in this proceeding and, accordingly, the relevant comments made in his report were not able to be explored and clarified. In the Tribunal’s opinion, the contents of Dr McLellan’s report fall well short of the expression of an opinion that it is probable, rather than merely possible, that the applicant’s flight to Cocos Islands on 1 March 2010 contributed, to a significant degree, to his suffering scrotal cellulitis on 2 March 2010.
Having regard to the whole of the evidence before it, the Tribunal is not satisfied, on the balance of probabilities, that the ailment, namely scrotal cellulitis (Fournier’s gangrene), suffered by the applicant on 2 March 2010 was “contributed to, to a significant degree, by” his employment by the Commonwealth, within the meaning of s 5B(1) of the SRC Act.
Conclusion
The Tribunal finds, therefore, that the ailment, namely, scrotal cellulitis (Fournier’s gangrene), suffered by the applicant on 2 March 2010 is not a “disease” as defined in s 5B(1) of the SRC Act. For the sake of completeness, the Tribunal (there being no contention by either party to the contrary) also finds that that ailment is not “an injury (other than a disease)”, within the meaning of s 5A(1)(b) of the SRC Act.
Accordingly, the Tribunal concludes that the scrotal cellulitis (Fournier’s gangrene) suffered by the applicant on 2 March 2010 is not an “injury” as defined in s 5A(1) of the SRC Act. It necessarily follows, and the Tribunal also concludes, that the respondent is not liable under s 14(1) of the SRC Act to pay compensation to the applicant in respect of scrotal cellulitis (Fournier’s gangrene) suffered by him on 2 March 2010.
Given the Tribunal’s findings and conclusions set out in paragraphs 37 and 38 above, it follows that the applicant’s bilateral sensorineural hearing loss cannot be taken to be an “injury” pursuant to s 4(3) of the SRC Act. There being no other basis on which that ailment could be considered to be an “injury” within the meaning of the SRC Act, the Tribunal concludes that the respondent is not liable under s 14(1) of the SRC Act to pay compensation to the applicant in respect of his bilateral sensorineural hearing loss.
Decision
For the above reasons, the decision under review is affirmed.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr J Chaney, Member.
.............[sgd D Brodie]...............................................
Administrative Assistant
Dated 19 September 2013
Dates of hearing 8, 9 July, 19 August 2013 Applicant In person (unrepresented) Counsel for the Respondent Ms D Dinnen Solicitors for the Respondent Sparke Helmore
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