Jarrett and Military Rehabilitation and Compensation Commission
[2012] AATA 837
•27 November 2012
[2012] AATA 837
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/0538
Re
KELVIN JARRETT
APPLICANT
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 27 November 2012 Place Brisbane The Tribunal affirms the decision under review.
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Mr R G Kenny, Senior Member
CATCHWORDS
WORKERS' COMPENSATION – Military service in Australian Army – Work related injury or disease – Seborrhoeic dermatitis of the ears – No medical evidence to support relationship between disease and army service – Respondent not liable to pay compensation for incapacity or impairment – Decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5B, 14
CASES
Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533
REASONS FOR DECISION
Mr R G Kenny, Senior Member
On 23 September 2009, Kelvin Jarrett lodged a claim, under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act), for rehabilitation and compensation in respect of “seborrhoeic dermatitis”. He served in the Australian Army (Army) from 2 February 1983 until 31 December 1998. He alleged that this seborrhoeic dermatitis was related to his Army service. On 7 January 2010, a delegate of the Military Rehabilitation and Compensation Commission (MRCC) rejected his claim and that determination was affirmed in a reviewable decision on 14 May 2010.
ISSUES AND LEGISLATION
In his claim form, Mr Jarrett identified seborrhoeic dermatitis affecting his ears as the claimed condition. His evidence was that it was diagnosed in 2009. It is not in dispute that, under the Act, this is a disease rather than an injury.[1] The issue is whether the MRCC is liable, under s 14 of the Act, to provide rehabilitation and to pay compensation to Mr Jarrett for his seborrhoeic dermatitis on the basis that it has resulted in incapacity for work or impairment.[2] For liability arising out of events prior to 13 April 2007,[3] the relevant provision in s 4(1) of the Act reads:
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
[1] See Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533.
[2] See s 14(1) of the Act.
[3] See Act No 54 of 2007.
For liability arising out of events from 13 April 2007, the relevant provisions of the Act read:[4]
[4] See also s 4(1) of the Act which refers to s 5A and s 5B of the Act for injury and disease, respectively.
5B Definition 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.
EVIDENCE
Kelvin Jarrett
Mr Jarrett’s evidence was that he experienced skin rashes on many occasions during his Army service and associated these with aspects of that service. In particular, these were the nature of his duties with aircraft movements and maintenance over the years. He was based at Oakey and was required to crew aircraft for which he had responsibility. He was involved in flights from the cold winters, at times, in Oakey to a wide range of destinations, often in tropical areas of Northern Australia, Papua New Guinea and the Torres Strait Islands. There, he was affected by the significant temperature changes and humidity variations. He was responsible for aircraft maintenance in those places and this meant he was often working in hot and confined spaces. He was also subjected to the impact of various fuels and lubricants during aircraft maintenance procedures at Oakey and at flight destinations. Mr Jarrett also attributed his ear condition to: frequent use of ear plugs and headsets; the wearing of fireproof suits; rosters on guard duty, mess duty and parades; broken and restricted sleep; rushed meals; and difficult flying conditions.
As for treatment for skin rashes, Mr Jarrett said that he frequently attended the Regimental Aid Post (RAP) for this and that, in particular, he suffered from rash in his ears for which he was advised to use AquaEar cream for treatment. This was available without prescription. He recalled visiting the RAP on about six occasions for his ears before 1987 because of its persistence. He said that creams would relieve it for a few days and then it would recur. After 1987, the condition remained with him all of the time. He said that he did not refer to his ears in subsequent RAP visits or in medical examinations because he accepted the condition and treated it himself with the AquaEar cream. He agreed that the condition of his ears was highly relevant to his situation as a member of air crew but believed that the level of control he had over the ear rash was “as good as it got” and that there was no point in making complaint about it. He agreed that he did not identify the condition in his examination forms and at medical boards because he had suffered from it for a long time “and did not wish to keep raising it”. However, when referred to his Medical Board Examination Record completed on 30 October 1998 prior to his discharge, he said that he believed he had identified his ear problem but that the examiner had wrongly entered “no” instead of “yes” in response to the question relating to its presence.
Mr Jarrett said that the first medical practitioner he consulted after his Army service was Dr A Breck McKay and that the first diagnosis of seborrhoeic dermatitis was made by Professor H. Peter Soyer in 2009.
Dean Stuart Robertson
A statutory declaration, dated 17 February 2010,[5] was provided by Mr Robertson who served with Mr Jarrett. He did not give evidence. Mr Robertson confirmed the nature of the duties undertaken by Mr Jarrett during his service.
[5] See Exhibit 4.
Medical Evidence
On 18 June 2009, Dr Scott Webber, dermatology registrar for Professor Soyer of the Queensland Institute of Dermatology, suggested that Mr Jarrett may have been suffering from seborrhoeic dermatitis in his ears and referred to the need for further testing to be done to confirm the diagnosis.[6] On 8 September 2009, Dr Peter Piliouras, clinical assistant to Professor Soyer, referred to Mr Jarrett’s test results and diagnosed seborrhoeic dermatitis in his ears.[7] This was confirmed by Professor Soyer in a report dated 6 October 2009.[8] Of seborrhoeic dermatitis, Professor Soyer wrote:[9]
It is believed to be tied-in with the proliferation of Malssezia yeast, a common skin commensal, which releases toxic substances resulting in an inflammatory reaction response of the skin.
It is an idiopathic condition, with patients who suffer from it believed to have a diminished resistance to the yeast compared to other individuals. It is not related to diet issues, nor is it a contagious condition.
It can typically be fairly persistent in adults, with management centred around topical treatments.
It is well-established that it is exacerbated by numerous factors, including reduced health or illness, fatigue, and change of season, as well as stress.
We are unable to clearly identify a specific cause for the condition in Mr Jarrett’s case, but most certainly it would be reasonable to acknowledge that any stress endured (and indeed if any stress persists on) from his years in military service would certainly contribute to it.
[6] See Exhibit 1, T-document 8, p. 85.
[7] See Exhibit 1, T-document 9, p. 86.
[8] This report was also signed by Professor Soyer’s dermatology registrar, Dr Phillip Singh.
[9] See Exhibit 1, T-document 10, pp. 87-88.
In his evidence, Professor Soyer confirmed that seborrhoeic dermatitis was an idiopathic condition, which meant that it was of unknown origin and he said that this was the case with Mr Jarrett’s ear condition. He said that Mr Jarrett had advised him that he suffered rashes in his ears for 20 years. Professor Soyer’s opinion was that Mr Jarrett’s seborrhoeic dermatitis was probably due to a genetic predisposition. He noted that seborrhoeic dermatitis was often found in persons suffering from serious injury where they were confined to bed. He conceded that aspects of Mr Jarrett’s service may have contributed to his seborrhoeic dermatitis but that it was “impossible to say” in Mr Jarrett’s case.
Reports from Dr A. Breck McKay, family/musculoskeletal/pain management physician, were in evidence. In an undated report,[10] he noted that he had been involved with treatment of Mr Jarrett since January 2007. He described Mr Jarrett as having otitis externa which he considered to have been triggered by his service in hot and humid tropical areas. He nominated the underlying cause to be seborrhoeic dermatitis. He noted that Mr Jarrett had been treated “with almost every agent possible” for his otitis externa which had “never successfully ceased”.
[10] See Exhibit 5.
Dr Ivan Holm, psychiatrist, completed a report on 14 July 2010.[11] He identified stressful aspects of Mr Jarrett’s service and noted Dr Soyer’s opinion that this could be linked to dermatitis.
[11] See Exhibit 3.
Other Evidence
In evidence was a range of Mr Jarrett’s medical records completed during his Army service, including:[12]
·Medical Board Examinations dated 30 July 1986, 11 October 1989, 1 October 1992, 29 March 1995, 21 September 1995, 24 October 1997, 22 December 1997, 25 February 1998 and 30 October 1998 which included references to a range of service complaints but none relating to Mr Jarrett’s skin or ears;
·Medical History Questionnaires dated 26 January 1983 and 30 October 1998 which denied discharge from ears or any skin trouble;
·Medical Attendance and Treatment Reports with dates and notations on: 13 September 1984 -“rash both axillae”; 25 November 1985 – “spasmodic itching irritation in groin area”; 13 February 1987 – “rash under both armpits”, 13 September 1988 – “rash around groin area for last 1/52 – has not been able to get rid of it”; 19 September 1988 “rash on left side of groin” – “atopic dermatitis”; 23 September 1988 – “dermatitis”; 30 November 1988 – “rash …armpit area. No spreading. Nil elsewhere. Slightly red”; 3 May 1989 – “underarm rash”; 23 March 1990 – “rash under R armpit”; and 11 July 1990 – “dry skin rash on upper arms”; and
·An Outpatient Clinical Record, dated 15 August 1994, which concluded with a provisional diagnosis of urticaria and read:
member complaining of dry scaly skin while on course. Has progressed to welt type areas that seem to follow his nervous system. This is progressing all over his body as a dry scaly area that is intensely itchy. ? shingles.
[12] See Exhibit 1, T-document 7, pp. 19-84.
In addition, Mr Jarrett’s Army service medical records included more than 50 other entries in which no reference was made to rashes or ear problems.
SUBMISSIONS
In evidence were submissions made on behalf of Mr Jarrett from Mr Bob Fittler of the Defence Veterans Association Inc., dated 4 and 15 March 2010,[13] and Mr Rod Thompson, who appeared for Mr Jarrett, dated 24 August 2012.[14] Mr Thompson referred to a Statement of Principles as prepared by the Repatriation Medical Authority to support Dr Soyer’s evidence that Mr Jarrett’s ear condition was exacerbated by numerous factors including reduced health or illness, fatigue, and change of season as well as stress. In his oral submission, Mr Thompson described the absence of reference to Mr Jarrett’s skin condition in his Army records as being attributable to the absence of the condition at the times when the records were compiled. He submitted that Professor Soyer’s evidence was supportive of a material contribution by Mr Jarrett’s service to Mr Jarrett’s seborrhoeic dermatitis. In particular, he noted the reference by Professor Soyer to “stress” and submitted that this was relevant because Mr Jarrett had adjustment disorder accepted as a condition related to his service.
[13] See Exhibit 1, T-documents 18 and 19, pp. 101-107.
[14] See Exhibit 3.
Mr Clark, for the respondent, submitted that the medical evidence gave no support to Mr Jarrett’s claim and that Mr Jarrett’s contention that the condition was constantly present during service was not consistent with the absence of any reference to an ear problem in Medical Attendance records and an absence of any reference to rashes in his Medical Board Examinations, Medical History Questionnaires and Outpatient Clinical Records. He submitted that the reference in the Outpatient Clinical Record was suggestive of urticaria, or shingles, but not seborrhoeic dermatitis. Mr Clark submitted that reliance should be placed on the evidence of Professor Soyer that the cause of Mr Jarrett’s seborrhoeic dermatitis was unknown and that any suggestion of contribution that Professor Soyer made was merely speculative and not sufficient to support a material contribution to Mr Jarrett’s service. He submitted that was also the case with the reference to stress and he noted that, for any condition present in Mr Jarrett to amount to a causal influence, it would need, on Professor Soyer’s evidence, to be at a serious level such that he was bed-bound.
CONSIDERATION
The Statements of Principles referred to by Mr Thompson are relevant to matters which fall within the schemes applicable under the Veterans’ Entitlements Act 1975 (Cth) and the MilitaryRehabilitation and Compensation Act 2004 (Cth) rather than the Act, as in this case. I have noted Dr McKay’s diagnosis of otitis externa and his reference to that condition as having been the subject of treatment over an extended period. He has seen Mr Jarrett since 2007 but there is no reference in Mr Jarrett’s service or other medical records to otitis externa. His service medical records refer to dermatitis, but not to his ears, to urticaria and to possible shingles. The Statements of Principles for otitis externa and seborrhoeic dermatitis are distinct and rely on distinct and different ICD-10-AM codings for those conditions.[15] However, more significant than any reference in the Statements of Principles is the evidence of Dr Piliouras and Professor Soyer. They diagnosed seborrhoeic dermatitis on the basis of test results. Dr McKay’s contention is not consistent with their findings. Professor Soyer’s specialty is in dermatology and I accept his evidence over that of Dr McKay in this matter.
[15] For otitis externa and seborrhoeic dermatitis, the Statements of Principles are Nos 58 and 59 of 2012 and 21 and 22 of 2005, respectively; the codings utilised are those from the International Statistical Classification of Diseases and Related Health Problems, 10th Revision, Australian Modification (ICD-10-AM), Seventh Edition and, for those conditions, are ICD-10-AM code H60, H62.0, H62.1, H62.2, H62.3 or H62.4 and ICD-10-AM code L21.0, L21.8 or L21.9, respectively.
I accept Professor’ Soyer’s opinion the Mr Jarrett’s seborrhoeic dermatitis is idiopathic in nature and, therefore, of unknown aetiology. I am also satisfied that there was no material contribution to the development of Mr Jarrett’ seborrhoeic dermatitis by his employment in the Army. In that regard, I accept Mr Clark’s submission that Professor Soyer was expressing a connection in terms of mere possibilities rather than anything higher. While, in his report, Professor Soyer referred to contribution from stress, his oral evidence was that it was impossible to attribute contribution to Mr Jarrett’s seborrhoeic dermatitis from service factors. Mr Thompson referred to Mr Jarrett’s adjustment disorder. But, again, Professor Soyer’s evidence was that a person would need to be virtually bed-bound before any causal influence could be shown. I am also satisfied that Professor Soyer’s report is not supportive of any contribution to any aggravation of seborrhoeic dermatitis. Mr Jarrett’s records make no reference to seborrhoeic dermatitis or to ear rash and the condition of seborrhoeic dermatitis was not diagnosed until more than 10 years after his discharge.
Mr Jarrett’s evidence was that he suffered from the rash in his ears periodically before 1987 and then continuously thereafter. That is not supported by his service medical records. I do not accept his evidence that he had the condition at all material times when examinations were conducted but that he did not mention it because he had accepted that the condition was “as good as it gets”. Neither do I accept that he referred to the condition at the Medical Board Examination on 30 October 1998 prior to discharge or that the examiner wrongly entered the condition as not being present. That was a detailed report and listed several conditions about which Mr Jarrett indicated to the examiner that he intended to apply for compensation. The list of conditions includes his left groin but makes no reference to his ears. Given that Mr Jarrett ensured that several conditions were placed on the record for future compensation purposes, it defies all logic that the ear condition, if he was suffering from it at the time or for as long as he claimed, was not included in the list. I note that Mr Jarrett signed the report, with its absence of reference to a rash in his ears, and that it included a declaration that the content was “true and complete” to the best of his knowledge.
I am satisfied that Mr Jarrett does not satisfy the criteria in s 14 of the Act, regardless of whether contribution is considered on the basis of the Act before or after its amendment in 2007.[16]
[16] See paragraphs 2 and 3 above.
DECISION
The decision under review is affirmed.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
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Associate
Dated 27 November 2012
Date of hearing 14 November 2012 Advocate for the Applicant Mr Rod Thompson Counsel for the Respondent Mr Charlie Clarke Solicitors for the Respondent Dibbs Barker
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