Snow and Military Rehabilitation and Compensation Commission

[2004] AATA 821

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 821

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No D2001/47, Q2002/1080

GENERAL ADMINISTRATIVE DIVISION		)
Re		BRADLEY SNOW

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member McCabe

Date6 August 2004  

PlaceBrisbane

Decision The Tribunal sets aside the decision under review. Mr Snow’s condition of seborrheic dermatitis is an “injury” under s 4 Safety, Rehabilitation and Compensation Act 1988 (the Act). It is permanent. Mr Snow’s impairment rating is 5% under table 4.1, and 0% under table 4.2. The respondent is liable to pay Mr Snow’s ongoing costs of medical treatment in relation to the injury pursuant to s 16 of the Act.

...................[Sgd].....................

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – “Injury” – whether applicant suffers injury within meaning of Safety, Rehabilitation and Compensation Act 1988 – whether applicant suffers permanent impairment – degree of permanent impairment – decision set aside

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

6 August 2004 Senior Member McCabe    

Introduction

1.      Comcare made a determination on 11 January 2000 that it was no longer liable to compensate the applicant for aggravation of seborrheic dermatitis of the scalp, face, anterior chest and hands. Comcare had previously accepted liability and had been paying compensation up until 16 December 1999. The determination was affirmed on 4 July 2001 and the applicant has now approached the Tribunal to consider the matter.

2. The case was heard on 10-11 May 2004. The applicant was represented by Mr Hume of counsel. The respondent was represented by Mr Clark of counsel. Two bundles of documents compiled pursuant to s 37 Administrative Appeals Tribunal Act 1975 were in evidence.

3.      The following individuals were also called to give evidence before the Tribunal:

·     Mr Snow;

·     Dr Land;

·     Dr Hoare; and

·     Dr Homolka

The applicant’s arguement

4.      Mr Snow says his conditions were caused or at least aggravated by his submarine service in the Royal Australian Navy.  He says his condition is permanent and he suffers a 20% whole person impairment within the meaning of the Comcare Guide to the Assessment of the Degree of Permanent Impairment (the Guide). 

The respondent’s argument

5.      The respondent says it should not be liable to pay any further compensation after 16 December 1999.  It says Mr Snow’s condition was not caused or aggravated by his employment with the Navy.  In addition it says Mr Snow does not suffer a 20% whole person impairment, nor is his condition permanent.  In the alternative the respondent says even if Mr Snow’s condition was caused or aggravated by his employment, he suffers an impairment of less than 10%.

Factual background

6.      Mr Snow enlisted in the Navy on 13 July 1981.  In 1987 he began his submarine service.  Within a few days of joining the submarine HMAS Otama he noticed a red, itchy rash on his face and fingers.  He approached a military doctor at HMAS Platypus who said he had dermatitis, probably caused by the living conditions and diesel atmosphere of the submarine.

7.      He says his dermatitis got progressively worse during his 12 years of service in submarines.  This was aggravated while serving at sea, during which time the condition spread on his face and onto his chest.

8.      In his statement Mr Snow describes how the conditions on board submarines aggravated his condition:

My position at that time required me to go down into the bilges for cleaning and inspecting machinery and as you can imagine there was a lot of oil and diesel down there which made it difficult to stay clean.  The hygienic conditions onboard the Oberon class submarines were not the best.  As water was a limited commodity and used primarily for drinking and cooking purposes, showers were rare and basically frowned upon.  My longest period without a shower (a 90 second shower) was 17 days….

During my posting to Darwin I also spent 48 days in East Timor posted to HMAS Brunei.  To counteract malaria we were required to take Doryx tablets everyday during, and five days before and after your time in the area of operation.  These tablets made you very photosensitive (light sensitive) which also severely aggravated my dermatitis.

The Medical Evidence

9.      Medical evidence was central to the dispute.  A number of medical certificates dating from Mr Snow’s days as a submariner were in evidence (ff6-15 T-3 T-documents).  Mr Snow’s entry medical examination records he suffered “mild acne shoulders and back – no antibiotic therapy”.

10.     The history of his medical condition is recorded in the medical certificates which follow – those in 1989, 1991, 1992, 1994 and 1997 all refer to his dermatitis.

11.     Dr Homolka prepared several reports on Mr Snow’s condition.  In a report dated 19 November 1999 (ff24-29 T6 T-documents) Dr Homolka says his employment in the submarine service was “definitely not” the principal cause of his condition.  She also says he would have probably contracted the condition in any event.  In a letter dated 16 December 1999 (f 31 T8 T-documents) Dr Homolka says his condition was aggravated (but not caused) by his submarine service.

12.     Dr Land prepared a report dated 19 January 2001 (ff38-38 T10 T-documents).  He said:

The cause of seborrheic dermatitis is unknown….onset in adulthood, particularly in the conditions encountered in the submarine, contributed to a material degree to both aggravate and accelerate the condition.  The effects of such aggravation may be permanent or temporary – this is a question that only time will answer – on the balance of probabilities such aggravation may be permanent.

Dr Land also assessed Mr Snow’s whole person impairment at 20% under table 4.1 and 0% under table 4.2 of the Guide.  In a supplementary report dated 16 November 2001 (f48 T12 T-documents) Dr Land clarifies his diagnosis.  He says:

In my opinion Mr Snow continues to suffer from seborrhoeic dermatitis, although now no longer in the submarine service, because that service has precipitated his dermatitis which, having been precipitated, will tend to persist.

13.     Finally Dr Hoare prepared a report dated 11 February 2002.  Dr Hoare writes

I consider the conditions under which he worked on the submarines are a significant contributing factor to the precipitation and aggravation of his seborrhoeic dermatitis.  I consider Mr Snow will continue to require treatment for his seborrhoeic dermatitis over an indefinite period…

In a supplementary report dated 25 March 2002 Dr Hoare assessed Mr Snow as having a 10% whole person impairment under table 4.1 and a 0% impairment under table 4.2 of the Guide.

The Law

14. Section 4 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) provides that “injury” includes 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), being an aggravation that arose out of, or in the course of, that employment.

15.     Section 24 of the Act says Comcare is liable to pay compensation to the employee in respect of an injury that results in permanent impairment, if the degree of impairment is 10% or more (except in cases of binaural hearing loss).  The degree of permanent impairment is assessed under the Guide, which is compiled pursuant to s 28 of the Act.

16.     Where compensation is payable under s 24 of the Act, s 27 stipulates Comcare is liable to pay additional compensation to the employee for any non-economic loss suffered as a result of the injury.

Consideration

17.     I consider the questions for the Tribunal to be these: did Mr Snow’s condition arise out of or in the course of his submarine service?  Is it permanent in nature?  What is the level of his impairment under the Guide?

18. On the basis of the reports of Dr Hoare and Dr Land, I am satisfied his employment with the Navy was a significant factor in the development and aggravation of his seborrhoeic dermatitis. His description of conditions aboard the submarine was convincing. While there might be some doubt as to the causes of seborrhoeic dermatitis in every case, I am satisfied the medical evidence from Dr Land in particular supports a finding that conditions onboard the submarines were the source of the problem. Dr Land says he sees many veterans of the submarine service, and the condition is common amongst them. He said the pre-existing acne condition identified in the entry medical examination was irrelevant. Dr Hoare agreed. Dr Homulka took a different view, but I note she is not a dermatologist. She is an occupational physician. In the circumstances, I prefer the views on Dr Land and Dr Hoare on this point. Seborrhoeic dermatitis is an “injury” within the meaning of s 4 of the Act.

19.     Dr Land said in his oral evidence that the condition was probably permanent. Dr Hoare asserted that the condition could be successfully treated, and he criticised the current treatment regime. I found Dr Land’s evidence to be more persuasive; Dr Hoare was more dogmatic in his approach. I am satisfied Mr Snow suffers from and will continue to suffer from the condition, even though he is no longer in the submarine service.   

20.     I now turn to the Guide.  Table 4.1 concerns skin disorders.  The relevant impairment levels are described below.

5% - The condition requires treatment for lengthy periods AND causes no interference with activities of daily living when present.

10% - The 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.

20% - The condition requires treatment for periods in aggregate up to 3 months per year AND causes interference with activities of daily living when present.

21.     “Activities of daily living” are defined in the Guide as

Activities which an individual needs to perform to 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

22.     Having reviewed all the facts before me, in particular the statement of Mr Snow and the medical reports, I think his level of impairment under table 4.1 cannot be greater than 5%.  His condition does not affect his activities of daily living even when present.  Mr Snow struck me as a professionally successful and socially well-adjusted man.  I have no doubt he can perform all activities of daily living (and far more besides).

23.     Table 4.2 deals with facial disfigurement.  I had the opportunity of examining Mr Snow’s face at the hearing.  His face had slight redness but was otherwise normal.  There was evidence given that his condition periodically worsened if it was untreated – but he was usually able to anticipate the flare-ups and deal with them effectively. This accords with an impairment rating of 0% under the table.

Conclusion

24. The decision under review is set aside. In substitution, the Tribunal decides Mr Snow’s seborrheic dermatitis of the scalp, face, anterior chest and hands was aggravated in the course of Mr Snow’s employment as a submariner in the Royal Australian Navy. It is an injury under s 4 of the Act. The injury is permanent. His impairment rating under table 4.1 is 5%. His impairment rating under table 4.2 is 0%. The respondent is liable to pay Mr Snow’s ongoing costs of medical treatment in relation to the injury pursuant to s 16 of the Act.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe.

Signed:   [Sgd]
  Associate: Thomas Ritchie

Date/s of Hearing: 10-11 May 2004
Date of Decision: 6 August 2004
The applicant was represented by Mr Granger and Mr Hume of counsel
The respondent was represented by Ms Railton and Mr Clark of counsel