Leslie and Comcare - [2002] AATA 734

DECISION AND REASONS FOR DECISION [2002] AATA 734

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2001/63

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ALAN ROBERT LESLIE
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr J Handley (Senior Member)

Date28 August 2002
PlaceHobart

Decision      The decision under review is affirmed.
  ..............................................
  Senior Member
CATCHWORDS
Compensation - applicant suffered photodermatitis & solar keratoses - whether 'severe disfigurement' under 1971 Act - whether 'permanent' after 1 December 1988 - decision affirmed.
Australian Specialised Meat Products Pty Ltd v Turner an unreported NSW Court of Appeals Decision dated 17 July 1995
Prestery v Commonwealth Steel Co Ltd 1999 NSW Compensation Court 8
Ingram v Ingram 1996 2VR 435

REASONS FOR DECISION

28 August 2002 Mr J Handley (Senior Member)

This application was heard in Hobart on 29 May 2002. The hearing did not then conclude because a treating medical practitioner had not provided treatment records upon a summons issued prior to the hearing. Evidence was heard from the applicant and from Dr Jevtic, the applicant's treating dermatologist. Dr Mitchell, the applicant's treating general practitioner gave evidence but only with respect to the period 1987 to 1989. The notes of his treatment prior to 1987 were not available to him at the time he gave his evidence. Accordingly the matter was adjourned to have those records produced and inspected by the representatives for the parties. The matter has now concluded by both representatives filing written submissions.
Mr Webster appeared on behalf of the applicant and Ms McMahon appeared on behalf of the respondent. A number of documents were received into evidence and will be referred to in these reasons.
Introduction
The applicant is presently 71 years of age having been born on 10 October 1930. He was a member of the Royal Australian Navy between 12 July 1948 and 11 July 1963. He was engaged in service in tropical climates and suffered extreme exposure to sun. A claim was made in 1997 for compensation for the conditions solar keratoses and photodermatitis. Liability was accepted by the Military Compensation and Rehabilitation Service on behalf of the Department of Defence. An application was made for lump sum compensation for these conditions in June 2000. The claim was then rejected and a reviewable decision was made on 2 April 2001. The applicant applies, by this application, to review that decision.
The claim put by the applicant was that the condition of photodermatitis occurred in either 1953 or 1954 and entitlement to compensation exists pursuant to s. 41 of the Compensation (Commonwealth Government Employees') Act 1971 ("1971 Act").The claim for lump sum compensation with respect to solar keratoses was put on the basis that it was related to service, but did not manifest and/or become permanent until 1989 when the applicant first attended for treatment. Accordingly it was submitted that the entitlement to compensation for that condition is to be determined pursuant to the provisions of s. 24 and s. 27 of the Safety, Rehabilitation and Compensation Act 1988 ("1988 Act").With respect to this condition the applicant relies on Table 4.1 of the Permanent Impairment Guide ("the Guide").
The Legislation
Section 41 of the 1971 Act provides as follows:
"(1) The compensation payable under this Act in respect of an injury that results in severe and permanent facial disfigurement to an employee is such amount, not exceeding … or such higher amount as is prescribed, as is determined in accordance with this section, and that compensation is payable to the employee.
(2)For the purposes of this section –
(a)facial disfigurement shall not be taken to be severe where, if the employee underwent suitable medical treatment, the disfigurement would not be severe; and
(b)facial disfigurement shall not be taken to be permanent where, if the employee underwent suitable medical treatment, the disfigurement would be removed.
(3)- (13) …".

The Guide

Table 4.1 with respect to an impairment between 0% to 20% provides as follows:
"% DESCRIPTION OF LEVEL OF IMPAIRMENT
0The condition is absent on examination or if present can easily be reversed by appropriate medication or treatment AND causes no interference with activities of daily living when present.
5The condition requires treatment for lengthy periods AND causes no interference with activities of daily living when present.
10The condition is absent on examination or if present can easily be reversed by appropriate medication or treatment AND causes minor interference with activities of daily living when present.
20The condition requires treatment for periods in aggregate up to 3 months per year AND causes interference with activities of daily living when present."
Table 4.2 of the Guide with respect to an impairment between 0% and 10% is as follows:
"Facial Disfigurement
(Percentage Whole Person Impairment)
When evaluating impairment due to facial injury or disease, three factors need to be considered.
Firstly, the functional components of the face must be evaluated (for example the effects of the condition on communication, respiration, eating, visual function, hearing etc).
Secondly, the cosmetic effects should be considered.   These are not truly an impairment, b ut for the purposes of evaluation are deemed to be equivalent to certain impairments.   These deemed values are set out below.   Cosmetic defects should be assessed when all feasible cosmetic surgery has been completed and should take into account the beneficial effects of the use of cosmetics etc.
Thirdly, facial disfigurement may result in behavioural changes.   These should be assessed in accordance with the criteria in Table 5.1 (Psychiatric and Behavioural Disorders".
Where more than one deformity is present from the same band or different bands, a value should be allotted to each and these should be combined using the Combine Values Table (Table 14.1).
%        DESCRIPTION OF LEVEL OF IMPAIRMENT
0Normal facial appearance
OR
Any scarring above the brow line
5ANY ONE of the following:
.         cutaneous scars or pigmentation
.         unilateral facial paralysis
.         distortion of the nose
.         loss of deformity of the outer ear
10ANY ONE of the following:
.         disfigurement of the orbit
.         bilateral facial paralysis
.         depression of the cheek
.         depression of the frontal bones
.         severe scarring below the upper lip."
The expression "activities of daily living" is defined in the glossary at the beginning of the Guide and reads as follows:
"Activities of Daily Living Activities of daily living are activities which an individual needs to perform or function in a non-specific environment ie: to live. The measure of activities of daily living is a measure of primary biological and psychosocial function. They are:
Ability to receive and respond to incoming stimuli
Standing
Moving
Feeding (includes eating but not the preparation of food)
Control of bladder and bowel
Self care (bathing, dressing etc)
Sexual function."

Alan Robert Leslie

Mr Leslie said in evidence that he suffered the condition of photodermatitis from service and recalled reporting it in 1953 or 1954. The condition of solar keratoses he said was first noticed late in 1989 and he then saw his treating general practitioner, Dr Mitchell. Mr Leslie then recalled that he was experiencing a dryness of his skin around and on his ears, his forehead, and the left side of his face and his scalp. Eventually he was referred to Mr McColl, a consultant dermatologist, who treated by way of application of liquid nitrogen (cryotherapy). Dr McColl treated for a few years, but he then retired and moved interstate and specialist treatment was provided by Dr Jevtic, a dermatologist. Mr Leslie said that his treatment with Dr Jevtic has been by liquid nitrogen and by applying the ointment 'Efudix'. Mr Leslie said when he applied this ointment, large areas of his face become extensively inflamed and swollen. A lotion is also used. Mr Leslie produced photographs of his face during this treatment process, which has duration of between 6 and 8 weeks. He described the effects of the treatment as painful and embarrassing. He said during the periods of treatment of Efudix he does not leave his house because of embarrassment. The photographs produced were consistent with the description of the inflamed and swollen skin. Mr Leslie said that he is never free of the condition solar keratoses. He said that as soon as lesions are removed either by cryotherapy or by Efudix, further lesions return. He said that he consistently suffers them across his face, left cheek, forehead, ears and scalp. When outdoors he has to cover his head and face with a hat. He applies a factor 30-sun lotion and other exposed parts of his skin are covered with clothing. He said that if he is exposed to the sun for more than 20 minutes without protection, he suffers burning and a worsening of his photodermatitis and solar keratoses.
In cross-examination Mr Leslie described the photodermatitis as a rash which occurs following any exposure to the sun. Outdoor activities are limited by reason of the photodermatitis and solar keratoses. He agreed that his sensitivity to photodermatitis since 1953 has been recurrent. Treatment initially for it was by the application of calamine lotion, but more recently it has been by the application of celestone cream as prescribed by his doctor. He said the application of this medication removes an itchy sensation and a rash which he associates with photodermatitis. The rash was described as comprising painful blisters. He also said that he suffers from anxiety when the rash is apparent.
With respect to the condition of solar keratoses, Mr Leslie said he first noticed the condition in 1989 and he then attended Dr Mitchell. He noticed a dryness over extensive parts of his face and scalp and described the presence also of "scabs" around his ears and forehead. He said these features commenced over a short period of time and he also recalled the presence of a red discolouration below his left eye and across his left cheek. He recalled that his left eye was painful which he associated with the presence of irritation around his eye (and he also observed dryness and scabs on the back of his hands). Treatment was initially in the form of liquid nitrogen, but solar keratoses lesions always return.
Ms McMahon referred the applicant to the treating notes of Dr McColl who attended the applicant on 3 occasions, namely 1989, 1992 and in 1995. Mr Leslie recalled that on all 3 occasions, solar keratoses lesions were removed by liquid nitrogen. The applicant could not recall that he attended Dr Mitchell between the first and second visit to Dr McColl, but he did recall that immediately prior to the third visit, Dr Mitchell had prescribed creams and ointments to maintain moisture in his skin. The applicant said that he should have attended Dr Mitchell on more frequent occasions and should not have left it so long between treatments, but he said that he was then having "other problems".
Since 1997 the applicant has been treated by Dr Jevtic, who the applicant said had removed solar keratoses lesions from his face, chest, back, scalp and hands.
The applicant said that since 1989 the solar keratoses lesions have always been present and he regarded the treatment to remove them as being temporary because "they always returned". He did not say if they returned in the same location from where they were removed, but so far as the applicant was concerned they "appeared to be in the same areas".
With respect to the Efudix treatment, Mr Leslie could not recall when he had commenced but it was initiated by Dr Jevtic. Mr Leslie said that the last time he used it was at Christmas 2001. He estimated that he has used this treatment on 4 or 5 occasions since it was first provided, however he said he was reluctant to use it if he had an event or function to attend on a future date, because the effects of the treatment caused him to be severely embarrassed and he would not leave his home.
Mr Leslie described the removal of solar keratoses by liquid nitrogen as a process which causes a red sensation and blisters with some discomfort over a period of about 10 days. He agreed therefore that it would be preferable to see Dr Jevtic for removal by liquid nitrogen as opposed to the Efudix treatment. However he had been advised by Dr Jevtic to return on a six monthly basis only.
The applicant agreed with Ms McMahon that the effects of and protection against sun exposure apply equally to the conditions of photodermatitis and solar keratoses. The immediate effect however of sunburn was the immediate occurrence of photodermatitis.
Dr Jevtic
Dr Jevtic has provided 9 medical reports, some of which were in the T documents and the remainder being written to either Dr Mitchell or the Department of Defence.
The condition of photodermatitis was described by Dr Jevtic as limiting outdoor activity because of the adverse effects of exposure to sunlight. Dr Jevtic said that the condition appears red in colour, precipitates discomfort and itching and is painful and also causes anxiety. He said it is a condition which requires ongoing treatment by application of lotions and will be lifelong.
With respect to the condition of solar keratoses, Dr Jevtic said that it is a condition induced by sun exposure, mainly affecting a person's face, back and back of hands. He described the condition as having the appearance of "small crusty spots" and "bigger scaly red blotches" which are itchy and produce discomfort.
He said it was impossible to state when solar keratoses would be manifest after exposure to sun, but he said in his experience - and on the basis of medical literature - it could be expected to occur within 15 to 20 years of first exposure. Nonetheless he said he was aware of 20 year old persons who suffered the condition. It followed, he said, that on the basis the applicant was employed between 1948 and 1963, he would have expected the condition of solar keratoses to have emerged within 15 to 20 years of exposure, i.e. between the late 1960's until the early 1980's. He said that the first manifestation of the condition would have been "a roughness of the skin", initially being the size of about a match head extending to a few square centimetres. He said in his experience, when a person attends for the first time with the condition solar keratoses, the presence of lesions elsewhere are not generally known or obvious.
Dr Jevtic said that the normal treatment for this condition is either liquid nitrogen in the case of "bigger" lesions and Efudix for smaller lesions.
He said the treatment by liquid nitrogen produces pain and swelling for a period of 5 to 7 days, with the expectation that the solar keratoses then treated will not then re-occur, however there is every likelihood of recurrence particularly if a patient has had long periods of sun exposure. He said it was unlikely that a person would go through life without having additional solar keratoses – after first treatment – if there has been lengthy periods of exposure to the sun. He said that so far as the applicant is concerned there has not been a time since he first treated him in 1997 when the applicant has not suffered a solar keratoses lesion.
The witness said that the applicant told him that he first attended for treatment in 1989 when he consulted Dr Mitchell. He said it was not possible to state when solar keratoses first occurred and in his experience solar keratoses are slow developing. He repeated that it would be expected that the first signs of the condition would have occurred approximately 15 to 20 years after the first exposure to the sun.
With respect to the treatment by Efudix, Dr Jevtic said that it was prescribed in May 1999. He said it is a "common treatment" and so far as he was aware, was used by the applicant once every one or two years. He agreed that it was a "drawn out" process precipitating red and painful swelling, but it produces a "better result" because there is no scarring as occurs with liquid nitrogen.
In so far as the 1971 Act referred to severe and permanent facial disfigurement, (concerning the condition of photodermatitis), Dr Jevtic said that the applicant does have permanent disfigurement of his face by exposure to the sun and by reason of the treatment, but he would not regard that disfigurement as being severe.
With respect to the Guide and the application of Table 4.1 (which the witness had been asked to comment upon on a number of occasions prior to the hearing), Dr Jevtic said that he would assess 10% impairment under Table 4.1 concerning the condition of solar keratosis. His answer was qualified because the condition is not "easily" reversed by treatment and having become acquainted with the definition of "activities of daily living", he agreed that the condition does not cause such interference.
With respect to Table 4.2 the witness assessed an impairment of 5% by reason of the presence of "cutaneous scars or pigmentation".
Dr Jevtic advised that pigment changes in the applicant's face should be regarded as scarring. He said the red discolouration in the applicant's face was by reason of sun exposure and the white discolouration was the scarring or pigment loss by the liquid nitrogen treatment.
In cross-examination Dr Jevtic said that it is unlikely that the condition of solar keratoses would have emerged only in 1989. It is more likely that the applicant did not previously notice it.
With respect to the Efudix treatment, he agreed that the applicant would experience "considerable redness" for a period of 6 to 8 weeks. When he observed the photographs of the applicant (received into evidence) depicting the red discolouration around the applicant's face, Dr Jevtic said that the applicant's reaction to the treatment was "more severe than the normal reaction of others".
With respect to a comment in his report of 4 May 2000 where he recorded that the condition of solar keratoses "commenced ten years ago", Dr Jevtic said that he was then recording the history given to him by the patient which he regarded as being reasonable, but in his experience, a patient's history with respect to solar keratoses was unreliable because the condition may have been present earlier.
With respect to Table 4.1, as against the criteria for an impairment of 10%, Dr Jevtic said that the condition has never been absent and it is not a condition which can easily be reversed. With respect to the criteria against an impairment of 20%, he said that the condition does require treatment for periods exceeding 3 months of each year because it is a condition, which is present, at all times and continually needs to be treated. With respect to the pigmentation suffered by the applicant, Dr Jevtic said that so far as he was concerned, the (discolouration and pigmentation) should be regarded as scarring.
Dr Mitchell
Dr Mitchell is the applicant's treating general practitioner and has treated Mr Leslie for about 25 years. He was given minimal notice to prepare to give his evidence and only had notes available to him for the period 1987 to 1989.
He confirmed that he first saw the applicant for the condition of solar keratoses in August 1989. He said that he was not aware that he treated the applicant previously for that condition. Dr Mitchell said that he recorded that the applicant presented with dry skin and lesions around his face and his ears and he referred him to Dr McColl.
With regard to the critical issue as to when the condition of solar keratoses occurred (that is before or after 1 December 1988) the hearing was adjourned to permit Dr Mitchell to locate his earlier records and have them delivered to the Registrar of the Tribunal. The parties agreed on an agenda that the notes would be inspected by each party within 2 weeks and each party would then prepare, lodge and exchange submissions in writing.
Conclusion And Reasons For Decision

The representatives for the parties have now filed written submissions which I have considered in addition in making the decision which follows.
In so far as the s. 41 of the 1971 Act is concerned, entitlement exists pursuant to sub-s. (1) if the applicant has suffered a "severe and permanent facial disfigurement". That expression is qualified by sub-s. (2) however I am not satisfied, having observed the applicant whilst he gave his evidence and having heard the evidence of Dr Jevtic, that the applicant has suffered "disfigurement" of his face, which is 'severe'.
Attempts to find authority on the meaning of 'disfigurement' has proved difficult. The Tribunal considered s.41 of the 1971 Act in Re Erdstein & Comcare 1991 24 ALD 382 but it turned largely on assessment of entitlement. I can find no authority from any Federal Court decision. The expressions 'severe bodily disfigurement' and 'severe facial disfigurement' have appeared in the Workers Compensation Act (NSW) since 1989, as the basis for a compensation entitlement. It has been understood to apply to a person's 'appearance' - refer Australian Specialised Meat Products Pty Ltd v Turner, an unreported NSW Court of Appeals Decision dated 17 July 1995. In Prestery v Commonwealth Steel Co Ltd 1999 NSW Compensation Court 8, O'Meally J, not having been able to find authority to assist in the interpretation of the word 'disfigurement', decided that 'it is a word with parallel meaning to deformity'. A Full Court of the Supreme Court of Victoria in Ingram v Ingram 1996 2VR 435 discussed whether to apply an objective and/or subjective approach to whether a person suffers disfigurement. The Shorter Oxford dictionary defines 'disfigure' as 'to mar the figure or appliance of; to deform or deface' and the word 'disfigurement' as 'the action of disfiguring; the fact or condition of being disfigured; defacement; deformity'.
The applicant obviously demonstrates pigment changes consistent with the treatment he has undertaken but his face retains normal contour and shape. I am not satisfied that he suffers facial disfigurement. I do not discount that from time to time the effects of the pigmentation and treatment cause the facial appearance to differ from those occasions where he is not undertaking treatment, nonetheless it cannot be said, without intending any disrespect to the applicant, that he suffers "disfigurement", which is "severe". It follows that there is no entitlement under the 1971 Act for the condition of photo dermatitis.
In so far as the applicant claims an entitlement for the condition of solar keratoses under the 1988 Act, entitlement will exist only if it can be demonstrated that he suffers from an "impairment" which became "permanent" after 1 December 1988. The remaining part of this decision only concerns the condition of solar keratoses because the applicant concedes that the condition photodermatitis became permanent prior to 1 December 1988.
It was the evidence of the applicant that the condition of solar keratoses became permanent after 1 December 1988 because it first became apparent to him in 1989 when he first attended Dr Mitchell for treatment.
Dr Jevtic said in evidence (refer paragraph 21 earlier) that in his experience solar keratoses would be likely to be manifested within 15 to 20 years of first exposure to the sun.
The applicant was engaged by the Royal Australian Navy between 1948 and 1963. Within that period of time he was exposed to the sun. On the most beneficial assessment of the evidence of Dr Jevtic, if the applicant were exposed to the sun immediately before his discharge in 1963, a manifestation of solar keratoses at a period 20 years later would be 1983. That is well before 1 December 1988. It is more likely than not, having regard to the manifestation of the condition and its subsequent treatment that the condition was permanent before, and not after 1 December 1988.
Subsequent to the hearing in Hobart both parties had the opportunity to inspect the records of Dr Mitchell which were not available when he gave his evidence. It appears from his notes that whilst he did consult the applicant in 1989, there are references in the notes of attendances on 19 June and 7 September 1984, 17 September, 1987 and 9 September 1989 for treatment variously described as "dry patches", "dry face skin patches", "dry patches on ear, side of forehead" and "lesion on ear". The attendances from 1984 would appear to be (approximately) consistent with the timeframe postulated by Dr Jevtic.
Additionally, it does not follow as a matter of fact or in law, that even if a diagnosis of solar keratoses was made for the first time in 1989 that it may be said that the condition became permanent after 1 December 1988.
"Permanent" is defined in s.4 of the Act as a condition that is likely to continue indefinitely. The history of treatment indicates that this condition was 'permanent', as defined, before 1 December 1988. Additionally, there is nothing to indicate an increase in the impairment, by 10%, subsequent to 1 December 1988. In my view the evidence of Dr Jevtic being a specialist dermatologist is to be preferred and I am satisfied that the condition of solar keratoses did exist and was permanent before 1 December 1988.
In the circumstances the decision under review must be affirmed.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed:         ………...S M Wedge.....................
  Admin Assistant
Date/s of Hearing   29 May 2002
Date of Decision   28 August 2002
Counsel for the Applicant
Solicitor for the Applicant          Mr R M Webster
Counsel for the Respondent    Ms Ann McMahon
Solicitor for the Respondent    Australian Government Solicitor