Langley and Comcare
[2000] AATA 1140
•22 December 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1140
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A1999/197
GENERAL ADMINISTRATIVE DIVISION )
Re RAYMOND LANGLEY
Applicant
And COMCARE
Respondent
DECISION
Tribunal Pamela Burton, Senior Member
Date22 December 2000
PlaceCanberra
Decision The decision under review is affirmed.
....................(Sgd)......................
Pamela Burton
Senior Member
CATCHWORDS
COMPENSATION - claim for permanent impairment – contact dermatitis - whether injury caused or provoked by conditions at work – condition resolves when applicant avoids oils, degreasers and cleaning solvents – whether condition is permanent – whether impairment is work related.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 s24
REASONS FOR DECISION
22 December 2000 Pamela Burton, Senior Member
This is an application for review of a decision by the respondent dated 10 June 1999. That decision affirmed an earlier determination by a delegate of the respondent on 25 March 1999 that the applicant's degree of permanent impairment was less than 10% and accordingly compensation was not payable under section 24 of the Safety, Rehabilitation and Compensation Act 1988 (the "Act").
The hearing took place on 4 October 2000 in Canberra. Mr Brian Meagher represented the applicant and Mr Damien O'Donovan represented the respondent. The tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T documents"). The applicant tendered the medical reports of Dr Susanne Freeman (Exhibit A), Dr Paul Freeman (Exhibit B) and Dr Shephard (Exhibit C). Mr Glen Noonan gave evidence on behalf of the applicant and the tribunal had before it a statement by him (Exhibit E). The clinical notes of Dr Paul Freeman (Exhibit 2), Dr Susanne Freeman (Exhibit 3), Dr Colton (Exhibit 1) and Dr Koziol (Exhibit 4), were tendered by the respondent.
IssuesThe issues in this case are whether the applicant has a permanent impairment caused by conditions at work, and if so, whether the degree of impairment is 10% or more as required by section 24 of the Act.
LegislationSection 24 of the Act relevantly provides:
24.(1) Where an injury to an employee results in permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether the impairment is permanent Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
…
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)The degree of permanent impairment shall be expressed as a percentage.
(7)Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.
Section 4 of the Act defines "permanent" as meaning "likely to continue indefinitely". It defines "impairment" as "the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function of part of such system or function".
ContentionsThe applicant contends that he developed contact dermatitis as a consequence of his employment with ACTION buses from working with grease, oils and soaps. He contends that, having ceased that work, he continues to have outbreaks of dermatitis. He claims a permanent impairment of 20% under Table 4.1 of the Guide to the Assessment of the Degree of Permanent Impairment, the Authorised Guide under section 28(1) of the Act (the "Guide"). The respondent contends that the applicant had a previous history of skin disorder. It contends that the applicant's employment neither caused nor permanently aggravated any conditions he has, and at most his exposure to the oils and solvents in the course of his employment caused a temporary aggravation of an underlying non-compensable condition. The respondent further contends that, even if the applicant's employment materially contributed to his ongoing skin condition, the condition resolves when the applicant avoids irritants such as grease and oils and is therefore not permanent.
BackgroundThe applicant was born on 20 May 1954. He left school at 13 years and had various labouring jobs before commencing employment with ACTION buses as a trades assistant in September 1987 (applicant's statement, Exhibit F). The applicant's duties with ACTION included grease, oil and filter changes to buses. On 22 February 1989 the applicant saw Dr Shephard, dermatologist, on referral from his general practitioner, because of problems with his skin. Dr Shephard reported that the applicant gave "a history of an eruption on both arms for a period of about 5 years. There have been many treatments and many doctors." (Exhibit C). At that time the applicant presented with blisters in the pits of his arms. Dr Shephard's examination of him revealed no other skin problems. He diagnosed "chronic follicullitis."
On 16 November 1989 Mr Glenn Noonan, the first aid officer at the applicant's place of work, reported a rash on the applicant's left forearm (T3). The first aid record stated that there was a "previous history of rashes" (T3). In a statement by Mr Noonan, he said that he had "no memory" of the applicant suffering dermatitis when he first started at the ACTION depot (Exhibit E). Although Mr Noonan could not recall exactly when the condition started he did not think it was long after the applicant started there. Mr Noonan described the "first signs" of the applicant's condition as "red blotches on the inside of his forearms". He went on to say:
The affected areas [were] near his wrists and resembled the red irritation caused by mosquito bites, about the size of ten and twenty cent pieces. I think it developed on the right arm first.
…
Ray used to complain about the itchiness that the rash caused him. It would generally settle down after he applied the cream and bandages. Ray said it was caused from contact with grease and oil. All the mechanics used to get grease and oil on their hands but I never saw any of the others develop any sort of rash.
In his statement, the applicant said that he was involved in performing oil and grease changes on buses "for the majority of the time" he was at work (Exhibit F). The applicant also transferred oil from large drums, which were on a stand, into small drums through a tap at the bottom of the large drum. While transferring oil between drums, the pouring oil splashed onto his torso and legs. The oil soaked his clothes and the applicant said that he "did not usually" change his clothes when this happened. The applicant claims that he only developed a rash on his stomach and legs after this had happened to him (which he believes was three times while working at ACTION). The rashes took approximately two months to clear.
When the applicant first started work at ACTION, he did not wear any protective clothing. He was provided with gloves and cover sleeves in 1991. However, the applicant stated in evidence that it was hard to work with gloves because the oil was slippery. There were some parts of the work, he explained, which he could not do using gloves.
The applicant claims that in 1992 he spoke to his supervisor about the possibility of obtaining alternative duties (Exhibit F). He was told that the only alternative work available was office work which he did not think he was capable of doing because of his limited education.
The applicant said he had "severe" episodes of dermatitis from 1991 to the end of 1993 (Exhibit F). The applicant decided not to accept redundancy offers being made to employees in 1991 and early 1993. On 1 December 1993 the applicant made a claim for rehabilitation and compensation in relation to a "severe rash" on both arms and his stomach occurring in 1990 (T5, p.8). To the question whether the applicant had ever had a similar injury or illness affecting any part of his body, he ticked "no". The applicant claimed that the sequence of events started with his performance of lube services on buses (T5, p.9). He said that this caused diesel and grease to "smear" on his arms. A rash started on his right arm and "over a period of time has spread to both arms and stomach". The applicant was certified fit to continue his work, with precautions (T6). However, in late 1993 another redundancy offer was made:
… I decided to take the redundancy because of the dermatitis as I couldn't put up with the effects and stress on my life of having the dermatitis attacks. I was unable to be intimate with my wife or hold my children. It caused me great embarrassment, pain, itches and sleep deprivation.
On 18 October 1994, the applicant made a claim for permanent impairment sustained on 29 November 1993 in relation to "permanent scars" from "constant rashes" to his left and right arms, abdomen and inner thighs (T9, p.17). The claim also stated that he was unable to work because sweat irritated the condition. This claim does not appear to have ever been determined.
The applicant experienced "three to four flare ups" in the condition during the period 1994 to 1997 (Exhibit F). The attacks lasted "approximately" two and a half months each. While working as a manager at Sundown Village in Symonston the dermatitis resurfaced when the applicant was required to fix lawn mowers. In June or July 1998 there was another flare up which lasted three months. He suffered another attack in late December 1998, which lasted for 10 weeks (Exhibit F). In evidence the applicant said that the rash appeared recently when he was mending his lawn mower, and that it lasted "a few weeks". He said that it also appeared when he serviced the family car in 1999 and lasted "two to three months". The applicant stated in evidence that he did not use gloves on either occasion as gloves make it difficult to handle "nuts and bolts". He continues to grease and oil his vehicle without the use of gloves.
On 4 March 1999 the applicant made a claim for permanent impairment in relation to a "skin disorder" which prevented him from working with grease and oils, and caused him to suffer a severe rash on average every three months of the year (T11). On 25 March 1999 the respondent determined that the applicant's impairment was less than 10% and that compensation was not payable to the applicant in accordance with section 24 of the Act (T14, p.28). On 9 April 1999 the applicant requested a reconsideration of this determination (T15). On 10 June 1999 an Independent Review Officer affirmed the decision (T18), but on the grounds that the condition was not one which was "likely to continue indefinitely", and was therefore not permanent. The reason given was that the medical evidence submitted by the applicant indicated that the condition does not occur when the applicant is not exposed to grease, oil and other solvents (T20, p.36). The Independent Review Officer did not, therefore, consider the degree of impairment.
Medical evidenceNo medical witness was called to give evidence at the hearing. In his statement dated 21 February 2000 the applicant asserts that he has had skin problems only since late 1989. He describes this as a rash on his hands and arms with blisters between his fingers and on the back of his hands. He says that it extended up his forearms (para.14, Exhibit F).
In his report dated 22 February 1989, Dr Shephard sets out the history that he received, namely that the applicant had skin problems on his arms and received treatment over the previous five years. He adds: "On three occasions in 1985 and 1988 he visited the STD clinic at Woden Valley Hospital for testing but they were looking for various bacteria, mycobacterium, fungi etc. but found none. He tells me that on one occasion staphloccos aureus was diagnosed." On examination Dr Shephard noted that the applicant had "small papules" in both "cubital fossae" (armpits) (Exhibit C). As to this, the applicant says (para.15, Exhibit F):
I recall seeing Dr C Shephard on referral from Dr Colton in early 1989. I got the referral to Dr Shephard as I had a raised circular blemish on my wrists which I thought may be a ring worm. I had had this blemish for several months prior to seeing Dr Shephard and got the referral because the blemish was not going away as I thought it would.
The applicant denies having told Dr Shephard that he had been experiencing rashes on his arms for 5 years. He says, "I had in fact had no problems with my skin on my hands and arms prior to the condition I saw Dr Shephard about" (para.17, Exhibit F). He states that the condition he saw Dr Shephard about "was very different" to the rash he experiences when in contact with oil, grease or soap (para.18, Exhibit F). At the hearing, the applicant stated that the only other medical problem he had experienced prior to seeing Dr Shephard in 1989 involved a genital sore, which was treated at the STD clinic at Woden in 1984 or 1985. He reiterated that he had no medical history or treatment prior to 1989 relating to his dermatitis condition.
On 12 October 1994, Dr Paul Freeman, dermatologist, diagnosed contact dermatitis on the applicant's left and right forearm and attributed the condition to his work. He said that the dermatitis "will not recur" if the applicant "avoids irritating fluids" (T9 p.18). On 14 December 1993, Dr Paul Freeman reported that the applicant had suffered from an "itchy rash" for four years affecting his upper limbs, abdomen and medial aspect of the left thigh (Exhibit B). He was given a history of no past eczema. On examination, Dr Freeman found patches of eczematous dermatitis in the armpits, abdomen and medial aspect of the left thigh and dorsum of the left hand, consistent with an irritant contact dermatitis. By way of treatment, he suggested that the applicant avoid contact with soap and hot water and that he wash with aqueous cream. In his report dated 28 February 1994, Dr Freeman states that once the applicant develops the rash it lasts for about three months (T8). On examination at that time Dr Freeman observed what he calls "irritant contact dermatitis" on the right upper arm and forearm, and on both wrists. He advised the applicant to avoid contact with diesel, oil, degreaser and other irritant substances, as well as wash with soap-free cleansers.
On 28 February 1999, for the purposes of the applicant's claim for permanent impairment, Dr Anna Koziol stated that if the applicant "avoids grease and oils he can avoid the problem altogether" (T11, p.23). As to the extent of the impairment, Dr Koziol found a 20% impairment "but 0% impairment if he avoids the causative factors".
On 12 October 1995, Dr Susanne Freeman, dermatologist, examined the applicant. The history she received from the applicant was that "…in 1988 he developed a dermatitis involving his forearms and waist area. His hands were hardly affected and this is very significant" (Exhibit A). She noted he was in contact with oils and degreasers and she said that she would expect the applicant's hands to be "the main site of irritation" as these were "the main parts of his body in contact with the chemicals." She reported that the applicant's then most recent flare up of the condition on his forearms occurred following contact with petrol and grease when the applicant was fixing a lawn mower. Dr Freeman reported a papular erythema on both inner forearms and on the inner aspect of the left upper arm, with the applicant's hands being unaffected. She diagnosed dermatitis. Dr Freeman went on to say:
However, I do not feel that the dermatitis on his arms can be attributed to contact with oils, degreasers, etc. in his work at Action eighteen months ago. If he had developed an irritant form of contact dermatitis at that time it would have affected his hands.
In summary, I feel that this man has a dermatitis which I cannot relate to his work. He requires treatment by a dermatologist and he has not seen this type of specialist for over one and a half years.
Regarding future employment, I feel that he should be able to work in one of his previous occupations such as a concreter, rigger, truck driver or brickies labourer if his arms are protected with long sleeve. Hence I do not feel that there is any degree of permanent impairment.
An entry in Dr Susanne Freeman's medical notes from 12 October 1995 also states that the applicant's hands were "nil" affected (Exhibit 3).
In a report dated 10 March 2000 prepared for the purpose of the applicant's claim for permanent impairment, Dr Susanne Freeman refers to the fact that the applicant claimed that his hands were affected by the rash while working for ACTION (Exhibit A). She states that it is "true that gloves and sleeves are often inadequate protection in his kind of work and that skin irritants would be likely to penetrate these protective garments." Dr Freeman acknowledges that the applicant now denies that his hands were not affected. She reports that he told her that "he thought that I meant full use of his hands (movement or strength) rather than the skin on his hands." Assuming that the applicant's hands were affected by his work with ACTION, Dr Freeman indicated that her opinion would then be as follows:
If Raymond Langley's statement is confirmed, namely that his hands were also affected by dermatitis as well as his forearms, it is more likely that one could contribute [sic] the dermatitis to his work as a trade assistance at Action because of contact with skin irritants in that job.
Although he left his job in 1993 he has continued to develop dermatitis as recently as 1998 (according to his statement). It is certainly possible that a dermatitis can continue after contact with the original skin irritant has ceased, because the skin does not recover its former "strength". If Raymond Langley's history is confirmed then I would say that he is suffering from 20% level of permanent impairment, in which the condition requires treatment for periods in aggregate up to three months a year and causes interference with activities of daily living when present.
Dr Freeman did not indicate with reference to the Guide how she had arrived at the figure of a 20% level of permanent impairment.
Tribunal findings
Taking the whole of the evidence into account, the tribunal is not satisfied that the applicant suffered any significant skin disorder to his hands during the course of his work with ACTION. Certainly his hands were not the main site of his skin problem. On 29 November 1993 the applicant indicated in his injury report that his hands and fingers were affected (T4). In December 1993 Dr Paul Freeman noted dermatitis on the dorsum of the applicant's left hand. At that time, however, the applicant had patches of dermatitis on various areas of his body including the armpits (Exhibit B). Mr Noonan does not mention the skin problem being on the applicant's hands (Exhibit E). Dr Shephard did not note any skin condition on the applicant's hands when he examined him in 1989. In 1995 the applicant told Dr Susanne Freeman that his hands were hardly affected. His explanation of why he said this is not convincing. He visited Dr Susanne Freeman in relation to his skin condition. It is unlikely that he understood her question about his hands to relate their functioning and movement in the context of a severe rash that the applicant claimed was the result of contact with oils and degreasers at work. Further, the applicant's evidence that, even now, he works with oils and greases without using gloves tends to support the proposition that his hands are not significantly affected.
In her report of 12 October 1995, Dr Susanne Freeman was unequivocal in her view that the applicant's dermatitis was not a contact dermatitis or originated in the course of his employment with ACTION. The opinion contained in her report of 10 March 2000 is dependent upon an acceptance of the applicant's hands having been affected by the skin rash in the course of that work. The tribunal has found that not to be the case.
In relation to the origin of the applicant's skin condition, no medical records were before the tribunal covering the period prior to 1988. However, Mr Noonan was given a previous history of rashes when the applicant reported a rash on his forearm in November 1989 (T3). The tribunal accepts that Dr Shephard did receive a history from the applicant that he had suffered skin problems over a period of some 5 years prior to 1989, for which he received treatment. It seems unlikely that Dr Shephard, whose report was written on the day he examined the applicant, got the history wrong. Further he observed small papules (blisters) in the armpits, and not on the applicant's wrists, as asserted by the applicant in para.15 of his statement dated 21 February 2000 (Exhibit F). The applicant's evidence in this respect is unreliable. The tribunal concludes that the applicant had suffered skin problems on his arms from around 1984, some three years before he commenced work with ACTION.
The tribunal prefers the histories taken by Doctors Shephard and Susanne Freeman to the versions the applicant says he gave. To find otherwise, the tribunal has to accept the applicant's contention that two specialist medical practitioners incorrectly recorded or understood the history given to them by the applicant. One of those specialists was the applicant's treating specialist at the time of his skin complaint; the other saw the applicant at his request for the purpose of providing a report to support his claim for compensation for permanent impairment.
Dr Paul Freeman and Dr Koziol (T9, p.18; T11, p.23) were of the opinion that the applicant did suffer contact dermatitis in the course of his employment with ACTION. However, Dr Paul Freeman assumed no previous relevant history. Dr Koziol's opinion is expressed in a medical certificate, which does not record the history she took or the reasons for her opinion. At most, their views support a finding that the applicant's work with ACTION temporarily aggravated his pre-existing condition.
The tribunal is not satisfied on the medical and other evidence before it that the applicant's ongoing skin problems were caused or have been contributed to by his work with greases and oils in the course of his employment with ACTION.
DecisionThe decision under review is affirmed.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member
Signed: James Enderbury .....................................................................................
AssociateDate of Hearing 4 October 2000
Date of Decision 22 December 2000
Counsel for the Applicant Brian Meagher
Solicitor for the Applicant Capital Lawyers
Counsel for the Respondent Damien O'Donovan
Solicitor for the Respondent Australian Government Solicitor
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