By determination dated 28 April 2000 the respondent claims agent, Royal and Sun Alliance Workers Compensation (SA) Ltd reduced the weekly payments of the worker Leith Stewart Arnold to $241.76 per week.
It was asserted in the determination that the worker was fit and suited both medically and vocationally for employment on a full time basis as a factory hand which work he had a reasonable prospect of obtaining, in fact or deemed, pursuant to s 35(2)(c) of the Workers Rehabilitation and Compensation Act 1986 ("the Act").
On the basis that his notional weekly earnings were $714.81 and the assertion that he could earn $412.60 gross per week as a factory hand Grade 1, his weekly payments were reduced to $241.76 being 80 per cent of $302.21.
There is no dispute that the worker suffers from a skin condition called discoid lupus erythematosus ("DLE"). This condition is of unknown aetiology but may be precipitated by exposure to ultraviolet light. Once the condition has developed it is prone to further exacerbation. In the worker's case it was precipitated in 1995 in his employment as a concrete worker with R and CJ Komazec. It is conceded by the respondent that the condition results in a partial incapacity for work in that there are environmental limitations on the range of employment open to the worker, in particular the respondent concedes that the worker is not able to perform work where he is exposed to ultraviolet light.
It was for this reason that the determination nominates work as a factory hand as suitable employment relying upon the Job Options Report of Beckmann and Associates (Trial Book 112 - 121) which stated that such work would be suitable because the worker's exposure to sunlight would be restricted to travelling to and from work and because it was considered that he had no other relevant physical restrictions.
The position of factory hand is a generic description which could potentially refer to a wide variety of process, machine operator, store or manual handling jobs within a variety of industrial establishments. The respondent's position at the hearing was that the worker was fit for factory hand work generally, subject to the caveat that it does not expose him to ultraviolet light other than in travelling to and from work when on medical advice he is required to cover his skin and apply UV cream. However, in order to establish the suitability of this form of employment the respondent relied, as an example, upon the worker's previous employment as a casual factory hand with Bordex Wine Racks from August 1997 to February 1998. It was asserted that the worker's performance of that work established the suitability of employment as a factory hand.
The worker's case in challenging the determination was that, as a result of DLE, he cannot work as a factory hand; that work of the kind he performed with Bordex caused an exacerbation of his condition and was not therefore suitable employment for the purposes of s 35(2) of the Act, and furthermore that he should be treated as totally incapacitated for work.
The worker gave evidence about the symptoms of DLE, the limitations which it places upon his general household and recreational activities and the problems he experienced with the condition when he was working at Bordex Wine Racks.
Mr Luke, counsel for the respondent, submitted that the worker's evidence should not be accepted, that he exaggerated the effects and limitations of the condition, and that his evidence of exacerbation of the condition whilst working for Bordex was not corroborated by any evidence from his general practitioner, and was not consistent with his presentation to his treating dermatologist, Dr N Grieve, or Dr M Hanna who examined him at the request of the respondent.
The worker's statement did contain a number of expansive descriptions of the skin condition and its effects upon his lifestyle, whereas in his evidence he agreed that these may have been exaggerated. It is not unusual in ordinary conversation for people to use superlatives to describe the effects of an injury or illness. To do so does not necessarily undermine reliability or suggest an intention to mislead. Closer examination of all of the evidence including that of the worker will determine the reliability of his account about his skin condition.
The worker gave the following evidence about DLE. His main problems with DLE are propensity to sunburn and rashes, blisters and sores which appear from time to time on his arms, chest, back, hands and feet, and more recently on his face. The condition flares up and becomes active at a particular site and then subsides. The areas where he has suffered the condition have lost pigment and are therefore prone to sunburn which in turn can precipitate a further active outbreak. The condition is unpredictable and the intensity of an outbreak varies from a faint blush to a very severe rash. When the condition is active it causes pain and discomfort. On occasions it is irritated by the friction of his clothing. The worker must cover his skin and apply UV cream when outdoors and has, since 1995, modified his activities to avoid being outside in direct sunlight. If he has to go outside it was his evidence that he does so in the early morning or the evening after the sun has set. He avoids travelling in a car or using public transport.
It was in the context of that description of the effects of DLE that the worker gave evidence about the work he performed at Bordex. It is not contentious that he worked at Bordex from 1 September 1997 to 26 February 1998, or that his duties included operating a cross cutting machine and docking saw which cut small light weight pieces of timber, and oiling timber. These jobs were normally performed standing but after only a short time the worker developed left leg pain and numbness related to an earlier compensable back injury. The worker's evidence about this was corroborated by the Job Analysis Report undertaken by an occupational therapist, Mr Craig Fletcher, on 12 September 1997, who recommended that the worker continue with the employment rotating his duties on a two hourly basis alternating his posture between sitting and standing, and alternating his weight bearing (Exhibit R3). I accept the worker's evidence that the leg pain and numbness continued throughout the period of his employment.
This is not an inconsequential consideration in determining the suitability of work as a factory hand particularly in the context of a work place like Bordex. It was the evidence of Mr M Bowes, Bordex's factory manager, that the work previously performed by the worker is now undertaken on an automatic machine and there is no longer any capacity to rotate duties in the workplace, rather, specific people are employed to work specific machines. Mr Bowes described the work as not hard but that it involves standing at a machine for eight hours a day (tr 129). Focussing just on the worker's leg numbness and pain the stationary work of a factory hand at Bordex might not be suitable to him, however his performance for five months of factory hand work of a rotational kind where he could vary his weight bearing and posture throughout the shift demonstrates that factory hand work of that kind is suitable employment in the context of his earlier back injury.
As to the suitability of factory hand work, from the perspective of the worker's skin condition, I formed the view that the worker did exaggerate the extent and duration of the problems he was having with his skin when working at Bordex. Although I accept that he had sores, redness, peeling and blisters on his forearms which were at times painful, I find that this was not a consistent problem throughout the five month period. Mr Bowes may have said that the worker's arms were scabby and "pretty bad looking" but that was merely an impression which he recalled (tr 128). Mr Bowes did not support the worker's evidence that during the whole period of employment the worker was working in discomfort. Similarly Ms Richardson, the worker's partner, said that when he was working at Bordex the worker's forearms appeared to be raw but she did not say during what period she made that observation. More particularly I have formed the view that if the worker had been consistently troubled by pain, blisters and peeling of his forearms throughout the period from September 1997 to February 1998, he would have consulted his general practitioner and taken time off work. The appearance of inflamed forearms would also have been noted by Dr Grieve when he examined the worker on 10 December 1997. On that occasion Dr Grieve did not take note, after examining the worker, of any such problem. However I find that when the worker eventually consulted his general practitioner in February 1998, not only had he developed a DLE lesion on his face for which he was certified incapacitated for work but he was also suffering post DLE inflammation of his forearms. This was an exacerbation of short duration. He was fit to return to work after 10 days off and would have done so if work had been available to him.
I find that the post DLE inflammatory condition was attributable to a combination of the exertion of working and the friction of his clothing rubbing on his forearms. He referred at tr 96 to the heat and discomfort of trying to do the work and at 18 of the transcript to the irritation caused by the sleeves of his shirt rubbing against his skin. I reject his attribution of the inflammation to the artificial lighting in the factory. There is no medical evidence to support that suggestion.
The influence of heat and friction in causing symptomatic aggravation of skin areas affected by DLE was supported by the evidence of Drs Grieve and Hanna. Dr Grieve, the worker's treating dermatologist, explained the mechanism whereby such a symptomatic aggravation of an area damaged by DLE may occur.
Dr Grieve explained that:-
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"Basically lupus, just to briefly describe this condition, you have for some reason a person whose skin is reacting in a different way to sun exposure to what they reacted before, and we think that that's caused by an abnormality of the body's immune system, producing a chemical which reacts with sun damaged skin, and that activation of that chemical probably occurs because of sun exposure. So you have this one where, with sun exposure, the inflammation of the skin recurs or occurs, producing redness of the skin, aggravation of the skin, and then as a consequence of that inflammation the skin is damaged, producing scarring of the skin, and that scarring consists of, firstly, a loss of pigmentation, so because of that loss of pigment you get more sensitive to sun. It causes a thinning of the top layer of the skin, the epidermis of the skin, so that layer of the skin is a protective layer, so that layer is more liable to injury by trauma, by minor abrasions, by friction, and you also have damage to the skin appendages which include the sweat glands. So at those areas that have been damaged by lupus, the glands are not functioning normally so that you don't tolerate heat as much as a normal person would. So you have the active inflammation which can be a recurring problem and, as well as that, you have the results of that inflammation which are the changes that we see on the skin and we call post-inflammatory changes caused by Lupus." (tr 62 - 63)
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"... if you have an area of skin that has been damaged by discoid lupus erythematosus, which produces scarring of the skin, that area of skin can be, or would be, more liable to be irritated by a number of factors. The factors that could irritate these areas of damaged skin would be heat producing sweating, because the skin would not sweat in that area as efficiently as it normally would, because the scarring caused by the discoid lupus can damage the sweat glands or destroy the sweat glands. Because that is an area of abnormal skin, it's an area of skin that may be more susceptible to irritation by things such as friction, so that rough clothing rubbing against that area of skin, if one was doing a lot of physical, manual work, may be an aggravating factor, may irritate the skin, without actually producing a recurrence of the discoid lupus. But it may just be an irritation of previously damaged skin by physical activity, by heat and sweating."
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In addition, the evidence of Dr Hanna who examined the worker at the request of the respondent on 12 February 1998 is consistent with my finding that the worker suffered post DLE inflammation of the forearms just prior to the date that he ceased working. When Dr Hanna saw the worker on 12 February 1998 he recorded that the distribution of the worker's rash was the same as it had been in August of the preceding year, but he noted that the skin was more inflammatory in that it was redder, scalier and more irritable.
He too said that:-
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"... if you have an inflammatory skin condition like he has, that other factors might aggravate it. For example, getting too hot or too sweaty, or overheated at work or any situation, that can just aggravate - it just aggravates the irritation of the skin condition." (tr 40)
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He also noted the history which the worker gave him at that time that his skin got worse in that the rash on his arms and shoulders got redder and stung. Dr Hanna expressed the view that this was probably due to heat or friction.
It was not the actual factory hand duties which the worker could not perform, rather it was the environmental conditions including that the factory was not airconditioned and was 6 - 7 degrees hotter than the outside temperature (Mr Bowes tr 129) combined with the inability of his skin to respond normally to heat and friction, which caused the exacerbation of February 1998.
The evidence of Drs Grieve and Hanna was that the worker will have periods of active DLE and nonactive DLE; that in its active state the condition will usually respond to treatment; that the worker should take precautions to protect his skin from ultraviolet light; that from time to time he may be susceptible to post DLE inflammation caused by heat and friction; and that sometimes the condition resolves of its own accord.
An example of the worker's susceptibility to sunburn and further active DLE occurred in early 2001, when he suffered an outbreak of DLE following an episode of sunburn when he mowed his lawn at home wearing light coloured clothing, which did not fully protect him from UV rays.
However, even allowing for the presence of a condition with these characteristics and his susceptibility to exacerbation, it cannot be said that factory hand work is not suitable employment, or as suggested by the worker, that he is totally incapacitated for work because no work of any kind is suitable to him.
As a member of a specialist Tribunal I think I am entitled to know that there are many kinds of factory hand work involving different levels of physical activity and different postures, which are performed in a variety of environments and which would involve only brief travelling time to and from work. (J & H Timbers Pty Ltd v Nelson[1972] HCA 12; (1971-1972) 126 CLR 625) Indoor factory hand work involving rotational activities in a seated and standing posture performed in a cool environment is suitable to the worker, bearing in mind his skin condition and his earlier back injury.
I reject the worker's evidence that his condition is so severe that he will never be able to work again; that he will have to stay home for the rest of his life only going out if he has to (tr 107, TB 46). I gained the impression that the worker has become preoccupied with his skin condition and has imposed limitations upon himself which are not objectively supported by medical evidence. He certainly has to take precautions to cover his skin when in sunlight, and working outdoors is contraindicated, but that does not prevent the worker from moving about to the extent necessary to travel to and from social events, places where he is required to undertake personal business, and a place of employment. Moreover the worker's view of the severity of his condition is not borne out by recent experience. The last significant outbreak of blistering was the occasion referred to in early 2001 (par 24 above). Since he first developed DLE he has seen Dr Grieve at six monthly intervals but less frequently in recent times. The last two appointments were on 16 July 2001 when Dr Grieve noted that there was no active lupus, and in April 2002 when he noted that there had been no flareups of the condition since he was last seen. (TB 64) In addition, as indicated earlier there is no medical evidence which supports the worker's view that he cannot work in a factory with artificial lighting because it would place him at risk of exacerbation (Hanna tr 43). The evidence does not establish that the worker is totally incapacitated for work. By way of completeness, I also conclude that the evidence does not establish that the worker has a deemed total incapacity for work. The worker did not establish that factory hand work is not commonly available for a person in the worker's circumstances, irrespective of the state of the labour market.
The worker is suited to employment as a factory hand.
The determination is upheld.
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Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.