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Franzi and Military Rehabilitation and Compensation Commission [2010] AATA 8 (8 January 2010)

Last Updated: 11 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 8

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/0995

VETERANS’ APPEALS DIVISION
)

Re
ROSS FRANZI

Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal
M J Carstairs, Senior Member

Date 8 January 2010

Place Brisbane (Heard in Cairns)

Decision
The Tribunal sets aside that part of the reviewable decision dated 29 January 2008 which relates to Mr Franzi’s claim for blepharitis and dry eyes, and substitutes the decision that the respondent is liable to pay compensation for blepharitis and dry eyes. In all other respects the Tribunal affirms the reviewable decision.
The Tribunal gives liberty to apply within 14 days in relation to such costs, if any, as relate to the claim for the condition blepharitis and dry eyes.
....................[sgd]..........................
Senior Member

CATCHWORDS

COMPENSATION – service in RAAF – discharge on medical grounds – claim for compensation for range of medical conditions - whether applicant entitled to compensation for conditions – decision in relation to blepharitis and dry eyes set aside – reviewable decision otherwise affirmed


Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 7, 14
Compensation (Commonwealth Government Employees) Act 1971 (Cth), ss 27, 29


Comcare v Sahu-Khan [2007] FCA 15
Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232
Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; (2000) 200 CLR 286
Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190


REASONS FOR DECISION


8 January 2010
M J Carstairs, Senior Member

  1. Ross Franzi served with the Royal Australian Air Force (“RAAF”) from 1982 rising to the rank of Corporal, before taking his discharge on medical grounds in 1995. This was some two years after he had seriously injured his ankle when he fell down an embankment, and after that he required repeated surgical procedures to alleviate his pain and disability. The respondent has accepted for purposes of compensation, the condition “major depression secondary to chronic pain syndrome associated with right ankle injury”[1].
  2. Mr Franzi now receives a range of entitlements with respect to injuries suffered during his Defence service. He has been declared totally and permanently incapacitated and accordingly receives Special Rate pension through the Department of Veterans’ Affairs.
  3. The subject matter of Mr Franzi’s current compensation claim (which he made in 2005[2]) relates to an earlier part of Mr Franzi’s service, namely the period from 1983, when he was posted to 6 Squadron (“6SQN”) at the RAAF base at Amberley in Queensland until 1989 when he was posted to the base at Richmond. During part of this time, for a period of about six months, Mr Franzi maintains that he was engaged in servicing F-111 airplanes at the Amberley airbase.

DESEAL/RESEAL ACTIVITIES ON F-111’S

  1. It is as well to say something of this period of Mr Franzi’s service. Mr Franzi’s time at Amberley coincided with one of the periods during which the F-111’s strike fighter planes were being serviced there. Health issues for RAAF personnel involved in servicing these planes were the subject of several Government enquiries.
  2. It is widely recognised that the F-111 strike fighters presented a number of problems, mainly because the sealant used in their fuel tanks disintegrated quickly. What is referred to as deseal/reseal maintenance programmes involved cleaning down and re-sealing the fuel tanks, using a range of harsh chemicals and solvents, while working in confined spaces. Government reports on these matters[3] have looked into whether workers involved in these programmes suffered a higher incidence of particular kinds of health problems due to their exposure to these chemicals.
  3. The Australian Government has made ex-gratia payments to certain identified categories of workers. Mr Franzi has not been deemed eligible under the enquiries conducted to date, although he has given evidence to them. The most recent Report identified those who will be eligible for different tiers of ex-gratia payments, according to the nature of, or the periods during which, they were involved with particular maintenance programmes. The Report also provided a definition of who would be identified as a “deseal/reseal participant” for the purposes of determinations under s7(2) of the Safety, Rehabilitation and Compensation Act 1988 (“the 1988 Act”). Subsection 7(2) of the 1988 Act allows for a more beneficial standard of proof to apply to such cases.
  4. I was provided with Mr Franzi’s statement of evidence, made in 2000[4] to one Board of Inquiry. In that statement Mr Franzi said that about 1983 he was posted to 6SQN at Amberley, and one of his first duties as an airframe fitter was to do the spot repair of leaking fuel tanks. From there, he states he was lent, but not formally attached, to 3 Aircraft Depot (“3AD”) where he was given duties that included mixing sealant in the mixing hut for the deseal/reseal work on F-111’s, and “sometimes” he was asked to help out in desealing and resealing in the hangar.
  5. Mr Franzi detailed the nature of the tasks involved in the patching and repairs of fuel tanks. He emphasised in his written statement to the Board that he closely followed the recommended safety guidelines in carrying out his duties, including using a respirator and safety gloves. He would shower and replace his clothing if his overalls and gloves absorbed any chemicals. In his oral evidence at the hearing Mr Franzi confirmed that he only worked within the deseal/reseal hut. Mr Franzi maintains, however, that he was doing exactly the same job as were people who have been awarded ex-gratia payments.
  6. Mr Franzi has been advised in writing that his particular duties at Amberley did not satisfy the requirements that would bring him within the definition of “an F-111 Deseal/Reseal participant” for the lump sum payments[5]. It follows, also, that he cannot avail himself of the beneficial provisions of s7(2) of the 1988 Act. Rather, any claim Mr Franzi makes for compensation must be determined in accordance with the general legislative provisions, which (broadly speaking) require that there be some connection between onset or aggravation of claimed conditions (whether “injury” or “disease”) and the work undertaken.

MR FRANZI’S CURRENT CLAIM FOR COMPENSATION

  1. In his present claim(s) for compensation, Mr Franzi focussed upon his involvement with deseal/reseal activities on F-111’s. As mentioned, the official records do not show Mr Franzi formally being assigned to such duties, but he maintains that he was lent by 6SQN to 3AD for a period of some six months, possibly in 1984. I have no reason to doubt Mr Franzi’s evidence with respect to this informal arrangement.
  2. Mr Franzi’s 2005 claim raises a range medical conditions (and/or symptoms), as set out in the two determinations made upon it, namely:
  3. Mr Franzi’s initiating claim form referred to “deseal/reseal health issues” affecting “most of the body”. The particulars appear to have been detailed in an accompanying document[8]. The first delegate accepted the evidence provided by Mr Franzi’s general practitioner, Dr R Lanskey, that a number of these symptoms or conditions were related to Mr Franzi’s already accepted psychiatric condition, this being “major depression secondary to chronic pain syndrome associated with right ankle injury”. On the basis of that evidence, the delegate concluded that those claims already were addressed under the existing compensable condition. In that sense, Mr Franzi was already covered by the earlier acceptance that his psychiatric condition was related to his RAAF service. Given the date when the Mr Franzi sustained the ankle injury, and the consequent depressive condition, that claim would have been decided under the 1988 Act.
  4. The remaining medical conditions (and/or symptoms) referred to in the 2005 claim were, broadly speaking, physical rather than psychiatric: “sore painful eyes”; dermatitis; chemical intolerance; and tinnitus.
  5. In the course of pre-hearing processes, Mr Franzi has now limited the conditions claimed to the following[9]:

THE ISSUES

  1. With the claim(s) articulated and confined in this way, the issues that fall to be decided are whether Mr Franzi is entitled to compensation with respect to each condition. As will be seen, there are two potential sources of liability, given the dates during which Mr Franzi served with the RAAF: the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”); and the 1988 Act (which came into operation at the end of 1988).

THE EVIDENCE FROM MR FRANZI’S SERVICE MEDICAL RECORDS

  1. The service medical records comprised of some 450 pages[10], and Mr Franzi had prepared a summary drawing upon relevant entries from those records, referring to incidents which might be relevant to the currently claimed conditions. His summary was as follows[11]:
  2. I will deal firstly with this last condition, now described as a claim for a “psychological” or “neuropsychological” condition. For reasons that will become apparent, this claim by Mr Franzi cannot succeed.

“PSYCHOLOGICAL” CONDITION

  1. It is fundamental to understanding this part of the claim to appreciate that the respondent has accepted as compensable the condition “major depression secondary to chronic pain syndrome associated with right ankle injury”.
  2. Dr Lanskey, provided a report, to which I have referred, stating that some of the conditions (or symptoms) Mr Franzi identified – sleep difficulties, fatigue, headaches, irritability, forgetfulness, lack of coordination, irritable bowel, loss of appetite, loss of interest in sex, relationship problems, and medication dependence – were related to Mr Franzi’s psychiatric condition and treated by his psychiatrist[12]. This evidence has been accepted by the respondent.
  3. Some support for Dr Lanskey’s view comes also from Dr U Stephenson, a psychiatirist who Mr Franzi consulted in 2008. She prepared a report expressing her opinion that Mr Franzi did not appear depressed when she interviewed him. This was not to cast any doubt that he had suffered spells of major depression in the past, particularly, as she said, in relation to his ankle injury, as well as to ongoing physical symptoms such as pain in his eyes, recurrent dermatitis, headaches and irritable bowel symptoms. Dr Stephenson acknowledged, however, that Mr Franzi was under treatment for his depression albeit requiring lower dosage than in the past.
  4. Mr Franzi’s attitude and the progress he had made in his life despite his chronic pain problems clearly impressed Dr Stephenson. Mr Franzi runs an Art Gallery and teaches art in Bloomfield, a small town located between Port Douglas and Cooktown. Dr Stephenson described him as having a lively interest in the natural world around him and the ability to find joy and beauty in it. She referred approvingly to Mr Franzi having discovered the value of artistic endeavours, in pain management; as well as his preparedness to teach these skills to others.
  5. Dr Stephenson noted that prior to his defence service Mr Franzi did not have any signs of physical or mental disorder. Mr Franzi told her at that interview that from about 1984 he commenced suffering headaches, sleep disturbance, irritability, and abdominal discomfort. Later he developed eye soreness. She referred to his history that from 1985 he presented with tiredness, frontal headaches and vomiting with intermittent abdominal pains.
  6. Of these matters, Dr Stephenson made the rather telling observation that “proving that some of these very common conditions can be clearly related to the work on the fuel tanks must be beyond the wisdom of Solomon”. However she ventured some limited support for a possible (her actual words in the report were “not so very unlikely”) connection between sore eyes and recurrent dermatitis with exposure to fuel.
  7. However confining her report to the claimed “psychological” condition, as is appropriate given the nature of her particular medical expertise in psychiatry, it is a fair reading of her report that Dr Stephenson focused on the matters that underpin the accepted compensable “major depression secondary to chronic pain syndrome associated with right ankle injury”. She does not suggest an alternative diagnosis, and it could not be said that her report lends support to a pre-existing psychiatric condition, that is, one that pre-dated the accepted compensable condition. The same is true of the reports of Mr Franzi’s treating psychiatrist Dr M Likely[13], and that of his previous psychiatrist in Brisbane, Dr R Troup[14]. The focus of each of their reports is upon Mr Franzi’s depression as it relates to chronic pain.
  8. As I understand the argument now being put, based upon Mr Franzi’s written materials, it amounts to this: Mr Franzi indeed has a major depression (secondary to a chronic pain syndrome arising from the ankle injury in the 1990’s) but he believes that his medical records show that he was suffering psychiatric disturbance from an earlier time. He sees this as linked to the circumstances of his service at Amberley. In particular he relies upon entries in his service medical records which reveal that he was investigated for depression in 1985.
  9. However when one looks at the service medical records in that regard it is apparent that about this time Mr Franzi had been suffering from a bout of infectious mononucleosis with hepatic involvement (variously diagnosed as glandular fever, possibly hepatitis). This appears to have started in about 1984 and did not readily resolve, producing ongoing disabling symptoms, including tiredness, lethargy, and a number of troubling gut problems. The chronicity of his symptoms was clearly stressful to Mr Franzi, as the service medical records reveal.
  10. Mr Franzi ultimately was referred at this time to a psychiatrist, Dr K Piaggio, who examined him on 20 August 1985. Dr Piaggio took a history that, in addition to suffering glandular fever symptoms, Mr Franzi was struggling with family problems and the stresses of study. However, Dr Piaggio ascertained that Mr Franzi was feeling better physically at the time that he saw him and he concluded he was no longer depressed. I note that Dr Stephenson observed of this particular period that when Mr Franzi was investigated for depression, he was under family pressures, having to partially financially support other family members.
  11. The contemporaneous material suggests the reasons for the depressive episode were incidental, and quite unrelated, to Mr Franzi’s employment in the RAAF. There is scant suggestion that the episode of possible depression was causally related to his employment. Mr Franzi remained in employment with the RAAF at all times; he was provided what appears to have been appropriate medical treatment for any physical and mental problems at the time.
  12. In other words, Mr Franzi urges a view now that he had a pre-existing psychiatric condition, in some way related to his earlier service in the RAAF. However this opinion is not embraced in any meaningful sense by the psychiatrists who have treated him, or provided reports on his case. There is no medical evidence supporting an alternative diagnosis other than major depression, and there is no opinion that suggests that the aetiology of his major depression was something other than his chronic pain from the ankle injury sustained in 1993.
  13. As I interpret the medical evidence in relation to this part of Mr Franzi’s claim, there is no support for a psychological or neuropsychological condition as now claimed, and accordingly that part of the claim fails.

BLEPHARITIS

  1. For Mr Franzi to succeed in this claim he needed to show that the condition – whether it is a “disease” or an “injury”[15] – arose in compensable circumstances, so as to come within the then applicable provisions of the 1971 Act. The 1971 Act provided, at section 29, that if employment was “a contributing factor” to the contraction, aggravation or acceleration of a disease, then such disease was compensable, it being a deemed as an injury under the 1971 legislation.
  2. The service medical records referred to above, and the summary produced by Mr Franzi, show the occasions when he presented with eye problems. That material forms the background to the present claim.
  3. Dr S O’Hagan, ophthalmic physician, has diagnosed Mr Franzi as suffering from chronic blepharitis and dry eyes. Dr O’Hagan explained that the condition is incurable, and prone to intermittent exacerbations. Also, it is a commonly occurring condition: 60% of the population have blepharitis, but only a minority (5%) of cases are symptomatic.
  4. In assessing possible causes in Mr Franzi’s case, Dr O’Hagan noted Mr Franzi’s history of working with chemicals in the RAAF. He made the observation that there may be a causal link through a (chemical) conjunctival irritation related to Mr Franzi’s work with aircraft fuels and fumes, paints and thinners. He noted in particular the young age at which he was evidencing symptoms[16].
  5. Dr O’Hagan elaborated on this in his oral evidence, stating that any conjunctival irritant can be a triggering event for blepharitis. He noted that Mr Franzi’s symptoms appeared to date from his RAAF service and not before. Dr O’Hagan said that it is difficult to ascertain what the specific conjunctival irritant might have been in this case, but he thought that the most likely one was the fumes with which Mr Franzi worked.
  6. Dr O’Hagan also noted in his oral evidence that there had been an incident in which Mr Franzi’s eye was splashed with hydraulic fluid (July 1988) and he said that this was “a major event”. He pointed out, nevertheless, that such incident would be followed by recovery and that any later exacerbations of the condition would be due to current irritants. In that regard, his evidence tended to a view that the event, while major, may well have been a temporary exacerbation, without true circumstances of aggravation.
  7. The service medical records reveal that in 1983 Mr Franzi suffered from conjunctivitis after swimming. On 19 January 1984, Mr Franzi was diagnosed with blepharitis in both eyes, he having presented for treatment for watery and sticky discharge of some three days duration after spilling hydraulic oil into his eyes two weeks before. In May 1984 he was diagnosed with mild conjunctivitis with bloodshot eyes, telling the medical assistant that his eyes were sore at night[17]. A report dated 26 June 1985 recorded that Mr Franzi had suffered persistent mild conjunctivitis[18] (since about 1984). I note also that a report of Dr E Nicoll, Compensation Medical Adviser with the Department of Veterans’ Affairs[19], referred to an entry in the service medical records dated 20 July 1988. Mr Franzi had received treatment when hydraulic fluid from an F-111 had splashed into his left eye[20]. There were, it seems, two of these “major incidents”, to adopt Dr O’Hagan’s description – one in 1984; another in 1988.
  8. It was not clear whether Dr O’Hagan had available to him the full picture of incidents during RAAF service when Mr Franzi suffered with eye symptoms when preparing his written report, which was provided rather earlier in the claims process. In his oral evidence, when speaking of possible causal links, Dr O’Hagan vacillated between describing the connection between Mr Franzi’s current condition of blepharitis and his employment in the RAAF as being a “possible” connection, and one that was “probable.” Indeed at one point in his evidence, having pointed to the length of Mr Franzi’s exposure to irritants, he referred to the connection as “possibly probable”.
  9. However I do not see Dr O’Hagan’s struggle with the language of possibility or probability as a bar to Mr Franzi’s claim. It is important to bear in mind in this case, that the evidence points to both the occurrence of “injury” to Mr Franzi’s eyes (or injuries) from time to time during his period of service. “Injury” is recognised where there is a sudden or identifiable physiological change mediated in some way from the external environment, and this, it seems to me, was evidenced when Mr Franzi suffered conjunctivitis after swimming (an activity undertaken in the setting of defence service), and also when he suffered eye problems and presented for treatment on two occasions when he splashed hydraulic fluid into his eyes.
  10. But apart from these incidents suggesting “injury”, Dr O’Hagan’s evidence supports a view that there is a connection between Mr Franzi’s blepharitis, being “disease” rather than an “injury”, and the circumstances of his service, particularly the effects of fumes from chemical products.
  11. Mr Dubé, counsel for the respondent, acknowledged that Mr Franzi’s eye condition might be an “injury” for a short time while he was on service. However he submitted that the evidence did not support a material contribution from service factors. However under the 1971 Act, the contribution did not need to be “material” in order for disease to be compensable. Section 29 of the 1971 Act required only that employment be a contributing factor. Dr O’Hagan emphasised that Mr Franzi was young at the time that he started to have trouble with his eyes, and had not had problems before his defence service. Dr O’Hagan posits a connection between fumes from chemical substances that Mr Franzi was handling and Mr Franzi’s blepharitis and dry eyes. I am satisfied that the required connection is made out on these facts, taking into account the legislative tests under the 1971 Act.
  12. As Glass JA held in Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190, the evidence of a possibility can be sufficient if the materials justify an inference of probable connection. The evidence here sufficiently demonstrated that Mr Franzi suffered with several incidents of eye problems during his service, and as Dr O’Hagan pointed out he was young when he first started having eye problems, and had not had them prior to his service. The recurrent nature of these incidents supports his claim that his present conditions of blepharitis and dry eyes are indeed connected to his service in the RAAF. The medical evidence and overall circumstances warrant the inference that incidents from Mr Franzi’s RAAF service were the probable cause.

THE CLAIMS AS THEY RELATE TO IRRITABLE BOWEL DISORDER, AND TO HEADACHES

  1. With respect to these claims it is important once again to return to the content of the decisions made on Mr Franzi’s claims to date (referred to at para 11 above), and to the medical evidence taken into account in the course of making those decisions.
  2. In the determination dated 14 June 2007, as I have observed, the delegate accepted the evidence of Mr Franzi’s general practitioner that Mr Franzi’s symptoms of irritable bowel and headaches (amongst other symptoms) relate to Mr Franzi’s (already accepted) psychiatric disorder. Dr Likely, psychiatrist, referred to symptoms of irritable bowel and headaches (amongst others), as “non-specific physical symptoms”[21]. Earlier Dr Nicoll[22] had noted about Mr Franzi’s repeated episodes of bowel dysfunction during his service that these appeared to have occurred in the setting of psychological symptoms. This opinion, it seems to me, accords with Dr Lanskey’s observations with reference to Mr Franzi’s current symptoms, that is, that they are referable to the accepted psychiatric disorder.
  3. The reviewable decision affirmed the delegate’s decision, agreeing that irritable bowel disorder and headaches were part of the accepted depressive condition. Thus the reviewable decision recognises that a causal connection exists. This amounts to an acceptance, on the respondent’s part, that the claimed conditions of irritable bowel disorder and headaches are part of the existing compensable condition. In other words, Mr Franzi by this application seeks review of a decision the effect of which is to recognise the conditions as compensable.
  4. For reasons that were not explained, the delegate in the reviewable decision, having agreed that the conditions were causally related[23], then stated that Mr Franzi needed to apply to have the diagnosis of compensable condition major depressive disorder amended to include the other conditions and to that end should contact his case manager to “discuss the procedure”. It seems to me that based on the conclusions reached in the reviewable decision it would be a simple matter to amend the diagnosis to provide that Mr Franzi’s suffers from depressive disorder with secondary headaches and irritable bowel disorder. However, as to the substance of the decision as it relates to these claims, I would affirm the reviewable decision made with respect to them.

DERMATITIS

  1. In a report dated 24 August 2005, Mr Franzi’s general practitioner, Dr Lanskey noted that Mr Franzi suffered with recurrent bouts of exfoliative dermatitis of the hands and feet. He stated that episodes occur without any obvious precipitant, apart from occurring after exposure to chemicals. He stated that no specialist opinion had been sought but said that Mr Franzi’s skin was extremely photosensitive.
  2. The respondent then sought a report from Dr P Haynes, consultant occupational physician. In his report, Dr Haynes noted that Mr Franzi had some facial redness but exhibited no signs of localised areas of skin rash[24]. However Dr Haynes accepted that Mr Franzi suffered from recurrent dermatitis, which was likely to be permanent because it had caused him symptoms over a number of years.
  3. Dr Haynes looked at Mr Franzi’s claims globally and concluded that it was possible that there was a link between Mr Franzi’s employment and his dermatitis but that some 12 years after taking his discharge, Dr Haynes considered it was unlikely that his RAAF employment was contributing to his symptoms now. Dr Haynes stated, noting the increased prevalence of dermatitis in the group studied under the Study of Health Outcomes in Aircraft Maintenance Personnel (“SHOAMP”), that:
This study would seem to indicate...a possible link between the skin conditions reported by Mr Franzi and also his neuropsychological symptoms, but taking into account the prevalence of these conditions and symptoms in the general population and the length of time since any exposure to solvents (more than 12 years) I would not consider the causal link to be probable[25].

  1. The entries in Mr Franzi’s service medical records relating to skin conditions were summarised by Dr Nicoll in her report[26]. This summary is consistent with Mr Franzi’s own summary set out above. Taking into account those summaries and the service medical records, I note that the most frequent entries during service relating to skin conditions were for facial acne. There is, of course, no suggestion that this skin condition was in any way related to Mr Franzi’s defence service. Other entries from the service medical records relevant to skin conditions were for tinea, rather than dermatitis. A dermatologist to whom Mr Franzi was referred in 1990 noted that his father had suffered from severe acne[27]. The dermatologist went on to additionally note that Mr Franzi at that time had a “mild irritant dermatitis from oils on hands” which he treated with Sorbolene.
  2. Completing the medical entries relating to skin condition was one entry on 24 January 1986 for an (unidentified) “rash on trunk and arms”. Treatment was provided, apparently effectively as Mr Franzi did not require follow up. So if we put to one side the instances of skin conditions that do not appear to be relevant, such as acne and tinea it seems that there is one clear instance of diagnosed dermatitis, which Dr Nicoll said was irritant contact dermatitis. Dr Nicoll distinguished this from a contact allergic dermatitis. She stated that Mr Franzi’s dermatitis would remit totally, leaving no residual damage to the skin and no enhanced reactivity to chemicals from the previous exposure.
  3. Taking into account the service medical records and the specialist evidence of Dr Haynes, supported as it is by Dr Nicoll’s report, I am unable to conclude that Mr Franzi’s current condition of dermatitis is related to his employment in the RAAF. There is only one entry that relates to dermatitis occurring during service, which according to the medical evidence and the treatment records apparently resolved without complication. I accept the evidence of Dr Nicoll that this condition would resolve in this way, and not leave Mr Franzi with enhanced skin reactivity in the future.
  4. The 1988 Act is the relevant Act to be applied on the facts before me, because the single incident of dermatitis occurred after the 1988 Act came into force. For compensation to be payable there must be an injury which arises out of, or in the course of employment, or a disease which was contributed to in a material degree by employment. The question to be determined it whether dermatitis comes within the definition of disease, being an ailment, or the aggravation of an ailment, that was contributed to in a material degree by employment?
  5. An ailment may be physical or mental. The definition encompasses disorders, defects and morbid conditions: s 4 of the 1988 Act (as in force at the time of the claim). It is intended as a wide definition, consistent with the beneficial nature of the legislation.
  6. In Comcare v Sahu-Khan [2007] FCA 15 Finn J, adopting the conclusions reached by French and Stone JJ in Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232, said that material contribution, as is required for liability to arise in respect of an ailment, imposes an evaluative threshold below which a causal connection may be disregarded[28]. It requires an evaluation of all relevant contributing factors for the purpose of asking whether the employment did or did not contribute to the necessary threshold level to the ailment.
  7. I am not satisfied that Mr Franzi’s employment in the RAAF made a material contribution to his present condition of dermatitis. The evidence about his having a single episode of dermatitis during service, where the medical evidence indicates he would have fully recovered, does not support an ongoing cause of the present condition that connects occurrence now with that service.
  8. It is true that Dr Haynes mentions the increased prevalence of dermatitis in the group studied under SHOAMP, and Dr Stephenson alludes to the list of symptoms she was shown by Mr Franzi (it seems likely that the list Mr Franzi showed to her was from the SHOAMP study) and she then commented that recurrent dermatitis would not be an unlikely result of exposure to fuel. However I take this as merely a passing remark from Dr Stephenson, not addressed to any specific evidence in the case. It is not a remark that gains support from the service medical records.
  9. I am satisfied that the medical evidence here does not indicate a probable connection between Mr Franzi’s dermatitis and the work he undertook while in the RAAF. The evidence of Dr Haynes and Dr Nicoll, which I accept, is against such a connection. Accordingly I would affirm the decision as it relates to the claim for dermatitis.

DECISION

  1. The Tribunal sets aside that part of the reviewable decision dated 29 January 2008 which relates to Mr Franzi’s claim for blepharitis and dry eyes, and substitutes the decision that the respondent is liable to pay compensation for blepharitis and dry eyes. In all other respects the Tribunal affirms the reviewable decision.

I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member.


Signed: ......................[sgd]...............................................

Emily Clarke, Associate


Date of Hearing 24 April 2009

Date of Resumed Hearing 2 September 2009

Date of Decision 8 January 2010

Advocate for the Applicant Mr D Chalk

Counsel for the Respondent Mr B Dubé

Solicitor for the Respondent Mr M Hawker


[1] Exhibit R1, p 9.
[2] T4.
[3] See, for instance, the Report of the Joint Standing Committee on Foreign Affairs, Defence
and Trade: “Sealing a just Outcome: Report from the Inquiry into RAAF F-111 Deseal/Reseal
workers and their families” June 2009. (Exhibit R4).
[4] Exhibit R3.
[5] Exhibit R3.
[6] T18.
[7] T22.
[8] See the reference at T4.
[9] Exhibit A3.
[10] Exhibit R9.
[11] Exhibit A4.
[12] T13.
[13] T14.
[14] Exhibit R5.
[15] Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286.
[16] T16.
[17] Exhibit R9, p 322.
[18] R9, p 297.
[19] T17.
[20] That entry however was not included in the service medical records at R9.
[21] Document T14.
[22] Document T17, at p107.
[23] Document T27.
[24] Document T21, p 118.
[25] Ibid, p 121.
[26] Document T17, p 99.
[27] Report dated 31 July 1990, exhibit R9 p144.
[28] At para 13.

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