Adamcic v JM Fitout Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Adamcic v JM Fitout Pty Ltd [2024] NSWPIC 441
APPLICANT:	Josip Adamcic
RESPONDENT:	JM Fitout Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	15 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for cost of medically necessary hernia surgery; whether applicant suffered a work-related injury, and if so, whether the injury was a frank incident or an aggravation of an underlying condition; whether need for surgery was brought about by a work injury; Held – applicant suffered injury by way of aggravation to a hernia in the course of his employment with the respondent; applicant’s injury was caused by the nature and conditions of his employment; the proposed hernia reduction surgery is reasonably necessary as a result of the applicant’s injury; respondent to pay costs of, and incidental to, the proposed surgery.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an injury by way of aggravation of an underlying hernia in the course of his employment with the respondent, with a deemed date of injury of 14 February 2023. 2. The surgical hernia repair proposed by Dr Mekisic is reasonably necessary as a result of the injury referred to in [1] above. 3. The respondent is to pay the costs of and incidental to the proposed surgery.

STATEMENT OF REASONS

BACKGROUND

The applicant, Josip Adamcic was an employed director of JM Fitout Pty Ltd (the respondent), which had provided commercial fit outs for buildings for private and public tenants from 1999.
In mid-1990s, the applicant underwent abdominal surgery in Germany. He subsequently developed an incisional hernia some years later. He alleges the nature and conditions of his employment with the respondent caused a symptomatic aggravation of the hernia which now requires surgical repair.
There is no issue the applicant requires the surgery sought. However, the respondent disputes liability and alleges the need for surgery does not come about as a result of any work-related aggravation, which aggravation it disputes.
Additionally, if the applicant is found to have suffered a work-related injury, there is a question as to the correct date of injury. For its part, the respondent alleges the applicant’s injury is a frank one which occurred in or about 2017, meaning the applicant is unable to recover compensation owing to the operation of ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered injury by way of aggravation of his hernia in the course of his employment with the respondent, and
(b) if so, the correct date of injury for that aggravation.
There is no issue the applicant requires the surgical repair of the hernia. The only issue in this matter is whether the requirement for that surgery is as a result of any work-related injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 13 August 2024. The applicant was represented by Mr Barter of counsel. The respondent was represented by Mr Stockley of counsel.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply and attached documents;
(c)    respondent’s Application to Admit Late Documents (AALD) and attached documents dated 4 July 2024, and
(d)    applicant’s AALD and attached documents dated 22 July 2024.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered a work-related injury

The applicant carries the onus of establishing he suffered a work-related injury. At the hearing, Mr Barter relied on the provisions of s 4 (b) (ii) of the Workers Compensation Act 1987 (the 1987 Act) in arguing the applicant’s injury was in the nature of an aggravation to an underlying condition, namely his hernia.
In his statement dated 12 October 2023, the applicant stated:
“27. I have had symptoms in my stomach for the last five to seven years that caused me to seek medical advice from my GP. I have had scans that have revealed herniae in my stomach. I was referred for surgery to repair herniae in my stomach by Dr Mekisic but I did not undergo the surgery and my Workers Compensation claim was declined as I did not have the funds to pay for it.”
The applicant’s allegation is the nature and conditions of his employment are the main contributing factor to an aggravation of his herniae. The respondent appropriately conceded the applicant’s duties were heavy, however, it disputes whether they were causative of any aggravation. In relation to his duties, the applicant stated:
“13.   I started the company, JM Fitout Pty Ltd in February 2011. I was a director, and so was my son, Marin Adamcic. …
16.    My role in the business was a hands-on role doing constant, repetitive work on the various job sites including but not limited to:
a.Picking deliveries;
b.Loading and unloading trucks;
c.Gyprocking and plastering work;
d.Setting walls;
e.Hanging doors;
f.Placing ceilings;
g.Working on ladders; and
h.Working on scissor lifts.
17.      I always carried a drill and nail bag on my belt.
18.I worked hard and we were always busy.
19. The work involved a lot of repetitive bending, lifting and twisting.
20. From February 2011 to March 2023, I did not have any major accidents or incidents at work.
21. I did have aches and pains from time to time but was reluctant to take any time off work as I did not want to get behind with work for fear of losing contracts.
22. At the time I went off work in March 2023, I was working full-time and earning a wage of $1,248.00 per week at gross.
23. I have not worked in any capacity since going off work in March 2023.”
Mr Barter noted the relevant exercise for the Commission is to determine whether the nature and conditions of the applicant’s employment had caused an aggravation to his hernia, and submitted the kind of work which the applicant was carrying out was very likely to exacerbate such a condition.
The records of the applicant’s general practitioner (GP) Dr Reddy referred to a visit on
3 April 2017 where the applicant presented with painless swelling at the umbilicus since the previous Friday. He was referred for ultrasound. The ultrasound results were again reviewed by Dr Reddy on 18 April 2017, which in turn led to a referral to Wollongong Hospital.
On 18 April 2017, the applicant attended Wollongong Hospital on referral from his GP in relation to the umbilical hernia. At this visit, the applicant was assessed by Dr Deady, who wrote to the applicant’s GP:
“I have referred Josip back to his GP today with a plan for referral to the general surgeon of his/GP’s choice for discussion of conservative v. surgical management of his asymptomatic herniae.”
The hospital records from the applicant’s visit record the following:
“History of presenting complaint
Saw the GP last week to discuss what to do with abdominal lumps that had been slowly increasing in size for the last 10 years.
GP ordered an US [ultrasound] which demonstrated five herniae just superior to the umbilicus.
Subsequent referral from GP this morning to the surgical unit at the Wollongong Hospital for expert opinion and examination.
Has been completely asymptomatic.
No pain, no features of obstruction (passes normal stool daily).
Patient feels well and is not sure why he has been referred to the hospital.
No constitutional symptoms of infection or change in bowel habit...
Plan
1.Discharge home
2.Follow up with GP for outpatient referral to general surgeon for choice of discussion of conservative v. general management options
- Patient provided with list of appropriate surgeons.”
The clinical records from the applicant’s GP reveal further visits on 7 August 2017,
20 October 2017, 24 October 2017, 11 July 2018, 18 February 2019, 12 September 2019,
25 March 2020 and 14 November 2020 without any reference to his herniae.
On 28 June 2021, the applicant again attended on Dr Reddy, at which time the swelling above the umbilicus was noted against a background of intermittent pain in the region.
On 2 July 2021, the applicant was again reviewed by Dr Reddy after having an ultrasound which revealed ventral hernia with fat in it and a notation that the applicant only got pain when he pressed on the hernia. Dr Reddy noted if the applicant’s pain became constant, he would need surgery and should present to hospital if his condition suddenly worsened.
The applicant then attended on Dr Reddy again on 1 December 2021, 14 July 2022,
22 July 2022 with no reference to the umbilical hernia.
On 30 January 2023, the applicant again attended on his GP, at which time the following was noted:
“Here for scripts. Takes half a tablet Micardis currently.
Also issues with hernia on abdomen. If works all day gets painful now, been getting bigger. Works as carpenter so heavy lifting involved. Note had USs [ultrasounds] previously.
Daughter keen to consider going under Workers’ Compensation. Patient runs his own business. Has had WC claims before.
O/E: umbilical hernia noted. No signs of strangulation.”
It was at this point the applicant appears to have considered further treatment of his hernia, noting a further visit to his GP on 3 April 2023 after seeing a surgeon, who had noted his hernias “are a work-related injury”.
On 27 May 2023, the applicant attended upon his GP who took a history of an umbilical hernia which occurred due to the applicant lifting weights when he used to work as a carpenter many years ago. That entry also noted that the applicant continued to work in his own business until March 2023, but had since been restricted owing to his various conditions, including but not limited to his hernia.
The applicant was referred to Dr Mekisic, general surgeon whom he first consulted on 22 March 2023. The clinical notes of Dr Mekisic are handwritten, but appear to contain the following entry on the applicant’s first visit:
“22/3/23 ? Ventral hernia
Noted lump abdominal wall 15 years
[increase] in size last two years
Heavy lifting at work
History
Previous gastric surgery
Perforated ulcer surgery
1995 in Germany.”
Dr Mekisic then recorded the results of the applicant’s ultrasounds, including the presence of multiple herniae.
Dr Mekisic reported to the applicant’s GP on 22 March 2023 in which he noted the following:
“Thank you for referring Mr Josip Adamcic who has a complex incisional hernia. I note that he underwent a laparotomy for repair of a perforated duodenal or gastric ulcer in Germany in 1995. He has noted a lump to the left and just above his umbilicus which has been present for about 15 years. Over the last few years, it has increased in size. He performs heavy lifting at work as a carpenter.
On examination today, I could feel at least three hernial defects above the umbilicus. The largest one was just above and to the left of the umbilicus. The other two were smaller defects higher up. I had an ultrasound has shown four defects.
I have advised repair of his incisional hernia with a mesh in order to avoid the risks of enlargement and strangulation. Risks of hernia surgery have been discussed in detail.
I will arrange to repair his incisional hernia with mesh at Wollongong Private Hospital on 17.4.2023.”
As noted by the applicant in his statement, the proposed surgery did not go ahead when his Workers Compensation claim was denied.
Mr Stockley noted, and I accept, Dr Mekisic has not provided an opinion on causation. Mr Barter submitted the Commission would infer the treating surgeon is in favour of attributing the requirement for surgery to the applicant’s employment, as he requested approval for the surgery from the respondent’s insurer and made a note of the applicant’s duties in his report to the GP. Mr Stockley submitted that such an inference would not be appropriate to draw, and should instead be the subject of commentary by the treating surgeon.
In reply, Mr Barter submitted it is for the Commission to determine causation, rather than simply rely on the contents of medical reports to make a finding on its behalf.
In my view, that submission is well made. There is no doubt the decision in Kooragang Cement Pty Ltd v Bates [1994] 35 NSWLR 452 (Kooragang) sets out the appropriate test for causation in a Workers Compensation context, namely a commonsense evaluation of the causal chain. The test in Kooragang makes clear the evaluation to be undertaken is of all the evidence, not simply one aspect of it. Thus, while Mr Stockley’s submission that Dr Mekisic provides no statement as to causation is, as far as it goes, plainly correct, it is not fatal to the applicant’s claim.
Mr Stockley submitted that if there was to be a finding of injury in the applicant’s favour, it would be one of a frank injury analogous to the facts set out in the High Court decision of Zickar v MGH Plastic Industries Pty Limited [1996] 187 CLR 310 (Zickar).
In that case, the worker suffered brain damage due to the rupture, at work, of a congenital aneurysm. While the congenital condition could be characterised as a disease, that would not have satisfied the requirements of cl (b) of the definition in s 4 of the 1987 Act, as it then was. The worker succeeded in the High Court on the basis that the rupture itself could be described as a frank injury simpliciter.
The Court therefore held that the presence of a disease did not preclude reliance upon an event as a frank injury. That is, it was the rupture, something quite distinct from the underlying defect, disorder or morbid condition, which enabled the injury to occur. As such, it is plain that the terms “personal injury” and “disease” (as those terms are used in the relevant legislation) are not mutually exclusive categories. A sudden identifiable physiological change to the body brought about by an internal or external event can be a personal injury and the fact the change is connected to an underlying disease process does not prevent the injury from being a personal injury.
In my view, the facts in this matter differ from those in Zickar. Rather than there being a sudden or readily identifiable single event such as to constitute a frank injury like a rupture of an underlying aneurysm, the contemporaneous medical evidence makes clear there had been a gradual increase in size of the underlying hernia and it had gradually worsened over time until it got to the point where the surgery became necessary. That is to say, the condition worsened or exacerbated over the course of several years until such time as surgery became unavoidable, rather than a frank injury causing the aggravation.
In my view, such a situation is consistent with an aggravation of an underlying condition pursuant to s 16 of the 1987 Act owing to the nature and conditions of employment rather than one brought about by a frank injury.
However, this is not the end of the fact-finding exercise. While it is the case the applicant’s condition has undoubtedly worsened over time, and developed from being asymptomatic through symptoms being present when the hernia was pressed through to constant pain, that is not conclusive of the worsening of the condition being caused by the applicant’s employment.
As already noted, the applicant has the onus of proving his employment was the main contributing factor to the worsening which I have found exists. Mr Barter noted there was no evidence other than the nature and conditions of the applicant’s employment which would explain the worsening of the condition. For his part, Mr Stockley submitted there was no evidence on the medicine, either treating or medicolegal, which established a causal link between the applicant’s employment and the aggravation of his hernia.
The applicant relies upon the opinion of Dr Conrad, Independent Medical Examiner (IME). In his report dated 20 December 2023, Dr Conrad took a consistent history from the applicant. On examination, Dr Conrad noted the surgical scar on the applicant’s abdomen together with the obvious swelling above and to the left of the umbilicus, indicative of a significant incisional hernia approximately 12 by 7cm and not reducible.
Dr Conrad recorded the applicant’s undertaking constant repetitive work, including picking up deliveries, loading and unloading trucks, gyprocking, plastering, setting walls, hanging doors, placing ceilings, working on ladders and working on scissor lifts which involved a lot of repetitive bending, lifting, and twisting. Dr Conrad described the applicant’s present symptoms as follows:
“He continues to have pain and swelling in the umbilical region as described. There is a significant swelling present...”
When asked to provide an opinion, Dr Conrad said:
“Mr Adamcic, due to his conditions of work in JM Fit Out as outlined under ‘History,’ has sustained an incisional hernia in his abdomen which is now irreducible and should be repaired as soon as possible by mesh as recommended by his surgeon, Dr Mekisic.”
As Mr Stockley noted, Dr Conrad’s view seems to indicate the applicant’s employment was the cause of his hernia, rather than an aggravating factor to it. In a further report dated 18 July 2024, Dr Conrad clarified his position when specifically asked whether the applicant’s employment with the respondent was the main contributing factor “to the hernia worsening and increasing in size to the point of needing surgery”. Dr Conrad replied:
“As previously stated, we did not have objective evidence of what the hernia may have been like or whether indeed it was a hernia starting in 2008. There is absolutely no evidence that at that time, the hernia would have been irreducible as it is now. On this basis, it is my view that his employment as a carpenter with JM Fit Out Pty Ltd from 2011 to 2023 has been the main contributing factor to the hernia worsening and increasing in size and in particular, becoming irreducible and that the need for surgery is directly due to the conditions of work at JM Fit Out.”
For the respondent, Mr Stockley impressed upon the Commission the opinion of Dr Garvey, IME for the respondent. Dr Garvey also took a consistent history from the applicant and diagnosed a ventral incisional hernia, stating that the applicant’s presentation was consistent with the history and examination obtained.
Dr Garvey noted the applicant had a recollection of a lump above the umbilicus for many years. He opined that the presence of such a lump would be indicative of an incisional hernia developing at that time, and concluded the applicant would have required surgery for an incisional hernia 10 years after the original surgery (that is, by approximately the mid-2000s) regardless of the nature and conditions of his subsequent employment.
With respect, I do not accept that view from Dr Garvey. The applicant plainly had hernias for many years, however, they were for a long time asymptomatic and then relatively mild. They have worsened over time.
The primary difficulty with Dr Garvey’s view as to whether the need for surgery was brought about by the applicant’s employment is the fundamental point that symptoms are what makes treatment necessary, not underlying pathology. For example, a worker may have serious degenerative changes in their spine which are asymptomatic until such time as an aggravating event such as a motor vehicle accident or a workplace incident renders them symptomatic and requiring treatment.

The cases make clear that when examining causation in relation to injuries by way of aggravation, what is required is a determination of the main contributing factor of the aggravation, not of the underlying pathology itself: see Federal Broom Co Pty Ltd v Semlitch [1964] 110 CLR 626. There is a long and consistent line of authority stemming from Semlitch and through the various Courts and predecessors of the Commission which makes it clear the cause of the aggravation is the matter at issue, because an aggravation or exacerbation of a disease takes place “where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed on the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism.” (per Kitto J in Semlitch) (my emphasis)
It can therefore be said the proper test is whether the aggravation has impacted the individual concerned. It is not necessary for the particular pathology contained in the underlying disease to be made worse: see Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond [2006] NSWWCCPD 132.
The parties both referred to the decision of Deputy President Snell in AV v AW [2020] NSWWCCPD 9, in which the Deputy President made clear there can only be one main contributing factor, and the requirement to satisfy a finding of main contributing factor is inherently stricter than that of “substantial contributing factor”, of which there may be many.
In this matter, having examined the totality of the lay and medical evidence, I am satisfied the nature and conditions of the applicant’s employment which were heavy, repetitive and laborious are the main contributing factor to the aggravation of his underlying umbilical hernia condition. That much is established not only by the applicant’s statement evidence, but the contemporaneous medical evidence which shows a gradual worsening over time in the context of those duties.
On balance, the preponderance of the medical and lay evidence satisfies me the applicant’s employment was the main contributing factor to the aggravation, and accordingly, I find he suffered an injury in the nature of such aggravation.
There is no issue the applicant requires the surgery sought. The respondent appropriately concedes this is the case. The issue in this matter was one relating purely to the existence of injury, its nature and causation.
Mr Stockley submitted, and I accept, that if there was a finding of injury in the nature of aggravation, then the defences relied upon pursuant to ss 254 and 261 of the 1998 Act would not be made out, as the deemed date of injury would be in 2023 and accordingly, there would be no potential issue concerning breach of time limits. Accordingly, I find those defences are not made out in the context of this matter.
Having found the applicant’s injury was in the nature of an aggravation, the question then is whether the requirement for surgery was brought about as a result of that aggravation.
In my view, the evidence in this regard is clear and compelling. The applicant need only show the work-related aggravation made a material contribution to the requirement for surgery. As noted, in my view, the evidence is overwhelming.
Against the background of repeated heavy and laborious work, the applicant’s hernia condition has worsened. It has now reached a point where surgery is unavoidable because the hernias have grown, have become painful and are irreducible by conservative means. This being so, I have no difficulty in finding that the requirement for the proposed surgery has been brought about as a result of the applicant’s injury.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 441

15 August 2024