Jones and Comcare (Compensation)

[2015] AATA 906

Jones and Comcare (Compensation) [2015] AATA 906 (25 November 2015)

Division	General Division
File Number(s)	2013/3430
Re	Wayne Jones
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	25 November 2015
Place	Sydney

The reviewable decision made 24 May 2013, that Mr Jones is not entitled to compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) for uveitis, glaucoma and cataract, is affirmed.

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

JW Constance
Deputy President

CATCHWORDS

COMPENSATION- injury- disease- ailment- whether ailment contributed to, to a significant degree, by his employment- whether aggravation of ailment contributed to, to a significant degree, by his employment

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A(1), 5B(1), 14(1)

REASONS FOR DECISION

Deputy President J W Constance

25 November 2015

INTRODUCTION

1. In September 2012 Mr Jones made a claim in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an injury which he claimed was caused by an incident on 15 November 2010 whilst he was working for Air Services Australia. As Comcare denied liability to compensate him, Mr Jones applied to the Tribunal to review the decision.

2. For the reasons which follow the decision under review will be affirmed.

   BACKGROUND

3. Unless otherwise stated, the following facts are based on the evidence of Mr Jones.

4. Mr Jones is 55 years old. He has been employed by Air Services Australia as an aviation fire fighter since 1990.

5. On 15 November 2010 Mr Jones was washing down a fire truck at the Mascot Fire Station. At around midday on that day he felt something blow into his left eye which immediately started stinging. He stopped what was doing and began rubbing his eye. When asked by a fellow worker what had happened, he said that something had blown into his eye. He continued with his duties.

6. By mid-afternoon his eye was becoming increasingly painful and inflamed.  He washed his eye, but it remained red and sore throughout the remainder of his shift.

7. At about 5 pm, at the end of his shift, he drove home. His eye was sore that night and very red, causing him difficulty in sleeping. His eye was tender to touch and his eyelid was swollen.

8. On 16 November 2010 Mr Jones consulted his general practitioner, Dr Padwharden, who referred him to the Princes of Wales Eye Clinic, which he attended that day. He was diagnosed as suffering uveitis in his left eye, a condition of inflammation of the vascular layer of the eye.  He was prescribed steroids, eye drops and a cream by way of treatment.

9. After four weeks, Mr Jones’ eye had recovered and he ceased treatment. Two weeks later the inflammation and soreness returned. Following this his condition fluctuated and he undertook a series of treatments over several years, including a resumption of steroid medication.

10. As a result of the treatment Mr Jones developed glaucoma and a cataract in his left eye.  He was diagnosed as suffering sarcoidosis (a condition characterised by lesions), but this diagnosis was later doubted and Mr Jones does not press this aspect of his initial claim.  He was unable to return to full duties until late 2014.

11. In his claim for worker’s compensation made on 11 September 2012[1] Mr Jones specified his injury as uveitis and glaucoma of the left eye caused by dust blowing into his eye. 

    [1] Exhibit R1 p.396.

    RELEVANT LEGISLATION

12. Subsection 14(1) of the Act provides:

    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.

13. In subsection 5A(1) injury is defined to mean, in part:

    (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…..

14. Subsection 5B(1) defines disease to mean:

    (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.

15. Ailment is defined in subsection 4(1) to mean:

    any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

    ISSUES FOR DETERMINATION

16. The following issues arise for determination.

    (a)Did Mr Jones suffer an ailment within the meaning of the Act that was contributed to, to a significant degree, by his employment by Air Services Australia?

    (b)If not, did he suffer an aggravation of an ailment that was contributed to, to a significant degree, by his employment by Air Services Australia?

    CONSIDERATION OF THE ISSUES

    Issue 1:          Did Mr Jones suffer an ailment within the meaning of the Act that was contributed to, to a significant degree, by his employment by Air Services Australia?

17. During cross-examination it was suggested to Mr Jones that he was mistaken and that he did not get dust in his eye on 15 November 2010 in the manner described.  He denied this.  However, Counsel for Comcare put to me in argument that Mr Jones had only come to believe that the incident had serious consequences when he was diagnosed with sarcoidosis in 2012 and that this caused him to attach undue importance to the incident which he had previously regarded as minor.  It was not argued that the incident alleged by Mr Jones did not occur.

18. I accept that Mr Jones was an honest witness who gave his evidence to the best of his recollection.  I am satisfied that, at the time, he regarded the incident when he got dust in his eye as minor and that this accounts for the lack of referral to the incident in some of the early medical records.

19. On the basis of the medical evidence, to which I shall refer later in these reasons, I am satisfied that uveitis is a morbid condition and therefore an ailment within the meaning of the Act. There remains the question whether the condition suffered by Mr Jones was contributed to by his employment.

    Evidence of Dr Delaney, Opthalmic Surgeon

20. Mr Jones was assessed by Dr Delaney in October 2013 at the request of his Solicitors. Dr Delaney provided a report dated 15 October 2013[2], an undated report in December 2013[3] and reports dated 18 December 2013[4] and 4 February 2014[5]. He also gave evidence.

    [2] Exhibit A3.

    [3] Exhibit A4.

    [4] Exhibit A5.

    [5] Exhibit A6.

21. In his report of 15 October 2013 Dr Delaney expressed the opinion that Mr Jones undoubtedly suffered from left anterior uveitis which had become chronic. He was of the opinion also that he developed secondary glaucoma and a secondary cataract as a direct result of the treatment for this condition.

22. As to the cause of the uveitis, Dr Delaney expressed the opinion that, at that time, it remained unknown. He agreed with the opinion of Dr Steiner, to which I will refer later in these reasons, that in 97% of cases no cause is found.

    Report of Professor McCluskey, Professor of Opthamology made 25 November 2013[6]

    [6] Exhibit R3.

23. In November 2013 Professor McCluskey was asked for his opinion whether Mr Jones’ uveitis was caused, exacerbated or aggravated by the incident at work.

24. Prof McCluskey had available to him Dr Delaney’s report of 15 October 2013. He agreed with the comments of Dr Delaney, particularly those set out in paragraph 5.1 of the report. In that paragraph Dr Delaney expressed the opinion that the cause of Mr Jones’ left anterior uveitis remained unknown.

    Report of Professor Wakefield, Professor of Medicine made 2 December 2013[7]

    [7] Exhibit A7.

25. Mr Jones was referred to Professor Wakefield in September 2013 for management of his condition.

26. Professor Wakefield reported that Mr Jones did not have the clinical features of sarcoidosis. He concluded:

    …… based on the lack of evidence for systemic sarcoidosis or ocular sarcoidosis in this case I believe it is more likely than not that Mr Jones’ chronic anterior uveitis is  result of traumatic injuries suffered during his exposure to dust whilst working at Sydney airport in November of 2010.

    Reports of Dr Steiner, Consultant Opthalmic Surgeon made 9 November 2012[8] and 27 December 2013[9]

    [8] Exhibit R1 p.820.

    [9] Exhibit R2.

27. When Dr Steiner assessed Mr Jones at the request of Comcare in November 2012, Mr Jones had been diagnosed as suffering sarcoidosis. On the basis of that diagnosis, Dr Steiner was of the opinion that this was almost certainly the cause of his uveitis.[10]

    [10] Exhibit R1 p.822.

28. Dr Steiner reconsidered his opinion once he was informed that it was no longer likely that Mr Jones suffered sarcoidosis. In his report of 27 December 2013 he stated that in his opinion it was inappropriate to describe Mr Jones’ uveitis as having been caused by trauma as described by Professor Wakefield. In the view of Dr Steiner, the trauma would have had to have been significant to cause severe recurrent anterior uveitis and therefore it was unlikely to be the result of dust entering his eye.

    Consideration

29. To be satisfied that Mr Jones suffered a compensable injury I must be satisfied on the balance of probabilities (i.e. that it is more likely than not) that his uveitis was contributed to, to a significant degree, by his employment by Air Services Australia.  Having considered all of the evidence, in view of the conflicting opinions, I cannot be so satisfied.

30. Dr Delaney agreed with Dr Steiner that, absent the diagnosis of sarcoidosis, the cause of Mr Jones' uveitis remained unknown.  This conclusion was supported by Professor McCluskey.

31. Professor Wakefield was of the contrary view.  In his opinion it was more likely than not that Mr Jones’ chronic uveitis was a result of a traumatic injury at work.  However I am not satisfied that he suffered a traumatic injury on 15 November 2010. 

32. Dr Delaney said that there was no evidence in the Hospital clinical notes of Mr Jones having suffered an abrasion of his eye and that he had not suffered a penetrating injury.  He said that within the first 24 hours anything but the “tiniest of abrasions” would have been detected.  Mr Jones attended the Eye Clinic during the morning of 16 November 2010.  I have taken into account the evidence of Dr Steiner that significant trauma would have been required to cause uveitis of the severity suffered by Mr Jones.

33. In view of my conclusion the question of the degree of any contribution does not arise.

    Issue 2:           Did Mr Jones suffer an aggravation of the ailment that was contributed to, to a significant degree, by his employment by Air Services Australia?

34. As I have decided that Mr Jones' uveitis was not contributed to by his employment, it is necessary to consider whether the employment made a significant contribution to the aggravation of a pre-existing disease.

35. Mr Jones relied upon the evidence of Dr Delaney to support the argument that his employment had aggravated a pre-existing condition.  However I found the evidence of Dr Delaney inconsistent in this regard and I cannot be satisfied on the balance of probabilities that such an aggravation occurred.

36. In his undated report received in December 2013 Dr Delaney stated:

    An injury such as Mr Jones suffered on 15 November 2010 when something blew into his eye may have precipitated, caused or exacerbated the onset of his uveitis. This can only be speculated about as the exact nature of the injury is uncertain, but his symptoms commenced at the time of the injury and his eye became progressively red, sore and inflamed. Mr Jones was then diagnosed as having uveitis the following day. The close relationship in time between the incident and the onset of his uveitis makes association quite likely, but it cannot be stated on the balance of probabilities that this incident caused his uveitis, as apart from the possibility of underlying sarcoidosis no cause has been found for his uveitis. [Emphasis added].

    ……

    The close relationship in time, I believe, makes it reasonable to state that the injury could, on the balance of probabilities, have aggravated previously asymptomatic uveitis.

37. Dr Delaney’s opinion quoted in the preceding paragraph is to be contrasted with his opinion expressed in his report of 15 October 2013[11], less than two months previously. In that report Dr Delaney specifically referred to the incident at work when something blew into Mr Jones’ left eye and that subsequently the eye became red and sore. Being aware of that history, Dr Delaney reported that the cause of Mr Jones’  left anterior uveitis remained unknown; he did not raise the question of aggravation of a pre-existing condition, despite his having been aware of the history to which I have referred.

    [11] Exhibit A3.

38. In his report of 4 February 2014[12] Dr Delaney said:

    Without a history of any direct injury, the opinions expressed in my previous reports cannot be supported on the balance of probabilities. I refer you specifically to the fourth and fifth paragraphs of my report of 18 December 2013. My opinion relies upon the fact that there were no other incidents or precipitating factors to cause the uveitis except for the reported incident. I would agree with Dr Steiner that a small amount of dust entering the eye would be unlikely to cause the uveitis but as noted in my report of 18 December 2013, even a mild foreign body injury could be sufficient to exacerbate pre-existing incipient asymptomatic uveitis.

    [12] Exhibit A6.

39. Taking into account the evidence of Dr Steiner to which I have previously referred and the evidence as to the high proportion of cases in which a cause of uveitis cannot be determined, I am not satisfied on the balance of probabilities that the incident at work on 15 November 2010 aggravated a pre-existing condition of uveitis.

    CONCLUSION

40. The reviewable decision made 24 May 2013, that Mr Jones is not entitled to compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) for uveitis, glaucoma and cataract, will be affirmed.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated 25 November 2015

Date(s) of hearing	11 August 2015
Counsel for the Applicant	Mr G Horan
Solicitors for the Applicant	Turner Freeman Lawyers
Counsel for the Respondent	Ms R Henderson
Solicitors for the Respondent	Lehmann Snell Lawyers