Buckley v Rivalea (Australia) Pty Ltd
[2021] NSWPIC 62
•6 April 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Buckley v Rivalea (Australia) Pty Ltd [2021] NSWPIC 62 |
| APPLICANT: | Douglas Buckley |
| RESPONDENT: | Rivalea (Australia) Pty Ltd |
| MEMBER: | Mr Paul Sweeney |
| DATE OF DECISION: | 6 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Worker employed by respondent for 28 years claims cost of proposed total hip replacement; where conflicting evidence as to nature of worker’s employment; where worker ceased to perform work, which could aggravate arthritis several years before his hip became symptomatic; where applicant’s medical case assumes an incorrect history; Held- finding that applicant had not established injury; award for the respondent. |
| DETERMINATIONS MADE: | 1. The applicant has not established that the need for right hip surgery proposed by Dr Kirwan results from employment injury. 2. Award for the Respondent |
STATEMENT OF REASONS
INTRODUCTION
Rivalea (Australia) Pty Ltd (the respondent) is an agri-business company engaged in the breeding and raising of pigs. It operates an abattoir at Corowa which processes pig carcasses. Douglas Buckley (the applicant) has worked for the respondent for 28 years. He has been promoted on several occasions. He commenced employment as a casual labourer at the abattoir in 1992. He is currently employed as the retail accounts manager.
For some time, the applicant has experienced pain in his right hip. In December 2019, Dr Kirwan, his treating orthopaedic surgeon, recommended that he undergo right total hip replacement.
The applicant alleges that the nature of his employment materially aggravated the osteoarthritic condition of his right hip and that his need for hip replacement surgery results from that injury. The respondent denies that the need for surgery results from employment injury. Its denial of liability is primarily based upon the opinion of Dr Richard Powell, an orthopaedic surgeon, who saw the applicant and provided reports dated 3 February 2020 and 11 August 2020.
PROCEDURE BEFORE THE COMMISSION
When this matter came on for conciliation and arbitration on 9 March 2021, Mr Alan Parker, of counsel, represented the applicant and Mr Robertson, of counsel, represented the respondent. I was informed by counsel that the parties were unable to reach agreement on the threshold question of whether the need for right hip replacement surgery resulted from employment injury. I am satisfied that the parties, who were represented by experienced counsel, had ample opportunity to consider settlement but were unable to reach a mutually satisfactory resolution. The arbitration hearing was heard over the telephone.
By these proceedings the applicant claims the cost of right hip replacement surgery proposed by Dr Kirwan pursuant to s 60(5) of the Workers Compensation Act 1987 (the 1987 Act).
EVIDENCE
The following documents were admitted into evidence:
(a) Application to Resolve a Dispute and attached documents; and
(b) An Application to Admit Late Documents enclosing the respondent’s Reply and the documents attached.
There was no objection to any of the material referred to above. Neither side sought to adduce further written or oral evidence at the arbitration hearing. It was agreed, however, that Angela Webb, the current boning room supervisor at the Corowa facility, was employed by the respondent prior to the applicant’s commencement of employment in 1992. Ms Webb has provided a statement addressing aspects of the applicant’s employment.
SUBMISSIONS
The submissions of the parties are recorded and I will not reiterate each argument put by counsel in these short reasons. Both counsel relied upon the opinions of the specialist medical practitioners retained for the purposes of the litigation: Dr Powell for the respondent and Dr Doig for the applicant. Both counsel addressed aspects of the reports of Dr Kirwan, the treating orthopaedic surgeon: Mr Robertson submitted that the Commission should not accept that Dr Kirwan understood the nature of the applicant’s employment over the years.
It was common ground that the applicant performed diminishing amounts of arduous physical work as he progressed by a series of promotions from the boning room floor to the position of retail account manager. Mr Robertson submitted that by the time the applicant experienced symptoms in his right hip he was performing very little physical work. He submitted that the applicant had not performed “regular physical work” after 2000. The more remote the onset of hip symptomatology was to this physical work, the more tenuous was the connection between his employment and the onset of hip symptoms.
Mr Parker argued that at the time of onset of symptoms there was still a physical component to the applicant’s work. In his work as a production manager, he would need to assist new employees or fill in when the line fell behind. He would also engage in incidental physical activities. All these activities would have exacerbated his hip condition. He argued that the evidence of Mr Kavanagh, the respondent’s current general manager, supported the applicant’s evidence that he continued to perform arduous work until the onset of hip symptomatology.
The dispute as to the nature of the applicant’s employment is relevant to the issue of whether the specialist medical practitioners possessed a reasonably accurate understanding of the physical nature of the applicant’s work over the years. In the language adopted from the American case law by the Court of Appeal in Paric v John Holland Constructions Pty Ltd [1984] NSWLR 505, whether there is “a fair climate” for their opinions.
It will be necessary to return to the arguments of counsel in resolving the issues in dispute. In the meantime, I compendiously consider the evidence of the applicant and of the respondent’s lay witnesses relevant to the question of the nature of the applicant’s employment . What follows is not intended to be a comprehensive survey of the evidence. Rather I set out the salient points so that the submissions of the parties and the way in which the Commission has resolved the dispute can be understood.
THE APPLICANT
The applicant’s evidence is contained in two written statements dated 28 January 2020 and 13 November 2020. By his initial statement, the applicant recounts that he commenced employment with the respondent in 1992 as a casual labourer. He continues:
“I worked in the abattoirs doing load out work and mainly in the boning room doing general duties on the floor using a scraper, picking up anything on the floor and packing cartons and stacking cartons on Chep pallets, and packing of meat into cartons, pushing pigs in the chiller which were hanging on rails and pushing them along the rails and putting them into the boning room.”
The applicant says that this was very physical work involving a lot of squatting, bending and lifting in a temperature of 10 degrees Celsius.
The applicant says that he progressed to the position of slicer in the respondent’s boning room “checking and preparing the pig carcasses pre-bone”. He states that his work was “always in the boning room”. He describes the work as relatively heavy work. He continues:
“I used a knife and rotated from the shoulder, leg and middle, and I was deboning and disassembling and pulling the bones out. Pieces would come along on a conveyor and you used a hook to pull the part of the pig on to a static bench and then you started the deboning process.”
The applicant says that he was also required to load containers with frozen cartons of meat weighing up to 27.2kg. He was required to physically lift each carton, carry them into a container and stack them from floor to ceiling. The containers came in three times a week. On occasions, he would be required to stack cartons in the containers for almost two hours before commencing work in the boning room.
Between 1993 and 1998, the applicant also worked two 3-4 hour shifts of an evening loading pork on to refrigerated trucks. He continues:
“Tasks including pushing 3 to 4 pigs at a time along overhead rails from carcass chillers to a platform. … The pigs were then pushed into the back of a truck. Whole pigs and sides (whole pigs cut in half) had to be lifted and turned on the overhead rail so that the framework that supported the rail acted as a stopper – 2 to 3 pigs/sides would be lifted and turned on the staff at the end of each rail x 6 rails in each truck. 6 or 7 operators would work on the shift. One or two pushing pigs from chiller to platform, one weighing and recording weights, one moving whole pig sides and off the scales, two operators on the platform transferring rollers to sides, one pushing pigs into the truck and back-locking i.e. lifting the pig and turning the side so that the framework of the hanging rail immobilised the pig/side.”
The applicant states that during the same period he also worked as a cleaner and this work involved kneeling, crouching, climbing over framework, scrubbing at floor level, at waist height and above shoulder height, and scrubbing overhead conveyors. He continues:
“All of the above work was extremely arduous and fatiguing and you would be very fatigued by the end of the day. All of the work was very heavy manual work and involved a lot of crouching and required me to walk on a flight of stairs up to a hundred times per day.”
The applicant recounts that he first experienced symptoms in his right hip “around 2009”. Over time the pain gradually increased. He says that he attended the Corowa Medical Centre and notes the record of that Centre refers to a back, pelvis and right hip x-ray on 9 July 2012. He says that:
“I assume I had attended at the medical centre complaining about the symptoms in my hip.”
On 7 November 2012, the applicant saw Dr Marks, the company doctor, who prescribed physiotherapy and ibuprofen for his pain. On 9 November 2012, he served a worker’s compensation claim on the respondent in respect of an injury in June 2010.
On 8 November 2013, the applicant saw Dr Johnson at the Gardens Medical Centre complaining of right hip pain. He was limping at the time however he continued to perform normal duties. His claim for compensation was denied by the respondent’s insurer and he says he chose not to pursue it at the time as he needed to continue working.
The applicant says that in approximately 2014/2015 he was sent to “research and innovation”. He says that he was still performing boning work but also undertook data entry work. His symptoms continued to “be exacerbated by my work”.
Then, in 2017 he became an account manager in sales and marketing. While that job is not physical, his condition continued to deteriorate. On 26 September 2019, he saw Dr Kirwan who proposed total right hip replacement surgery.
By a supplementary statement dated 13 November 2020, the applicant addresses his work as production manager between 2000 and 2005. He states that he was not working on the “tools” during this period, but he was working “physically”. He continues:
“Production supervisor was a hands-on role during the hours of production, covering employees on breaks, relocating 20-kilogram plus tubs from one tub conveyor to another to relieve congestion. 90% of the production day was on my feet. Prior and post-production overtime was required to ensure rostering and scheduling was done, at the end of the day there was planning for the following day.”
The applicant takes issue with a description of the boning room provided by Susan Pierce. He says there were 15 steps from the boning room floor to the manager’s office. There were steps to the mezzanine floor and steps from the mezzanine floor to the carcass chiller. There were also steps at the entrance to the boning room and steps into the carton room. He states that he had to negotiate all of these steps on numerous occasions during the course of the day. He says that he would “be moving from one end of the room to the other frequently”.
The applicant concedes that the stacking and re-stacking of frozen boxed meat ceased approximately 18 to 20 years ago. He disputes Ms Pierce’s evidence that his work as boning room supervisor “involved a reduction in workload, or a reduction in exposure to heavy lifting, leg work or use of steps”. He maintains “that working in boning room supervision still involved these physically demanding tasks”.
SUSAN PIERCE
Susan Pierce, the manager of the respondent’s work health and safety unit provided the following chronology to the respondent’s insurer in an updated document as it throws some light on the applicant’s progression from a casual labourer to retail account manager. I reproduce it below.
Date
Position
Department
1992-1995
Commencement date was 28/5/1992. File indicates he was working as a casual labourer in loadout [2 hours per night] after day job as butcher at local butchery to supplement income
MP – Loadout
1995 to 2000
Boning Room employee and Leading hand
MP – Boning Room general duties [5 years]
1/2/2000
Production Supervisor – predominantly supervisory role however may help out on the line during employee breaks.
MP [4 years] not on tools
7/6/2005 & 2008
Acting and then Permanent Production Manager – predominantly office based.
MP – BR [9 years not on tools]
1/6/2010
Claims this as date of injury however no incident can be found on file
16/4/2014
Meccano Team Member – Meats. Office based but would be required to visit BR for data collection.
Demand Planning
20/10/2014
R&I Technical Manager – office-based role
R&I Meats
8/5/2017
Retail Account Manager – office-based role based in Albury [50kms from Abattoir]
Sales & Marketing
Ms Pierce also provided a statement bearing date 23 December 2020. She states that the applicant was employed on a casual basis while working in a butcher shop in 1992. He commenced working in the boning room full-time in 1995 and was promoted to a leading hand prior to 2000, and to boning room supervisor in 2000. Finally he was appointed to boning room manager in 2005.
Ms Pierce recounts that the applicant remained as boning room manager until April 2014 when “he joined a special projects team that developed a meat tracking system.” During this time he was also research and technical manager until 2016.
ANGELA WEBB
By her statement dated 23 December 2020 Ms Webb, who is the respondent’s current boning room supervisor, describes the work performed by a boner and slicer at the abattoirs. Relevantly, she states that slicers and boners “did not have to bend or twist unless a product dropped on the floor”.
Ms Webb also describes the work of boning room supervisor stating that the first job each day in that classification is to re-arrange rosters and make adjustments to the speed of the line to reflect the weight of the pigs. She continues:
“From there the supervisor then oversees the operation by walking around and inspecting the work being completed. Occasionally the supervisor will assist on the line.
I consider that Douglas Buckley would have worked on the line maybe once a week and it was only to fill in if someone needed to leave the line for a toilet break or something similar.”
Ms Webb continues that the supervisor would have been required to undertake paperwork relating to the number of pigs that had been butchered, complete incident reports, and answer telephone calls. He was required to ensure that orders matched what had been requested.
In respect of the work of boning room manager, Ms Webb states that he oversees the supervisor “and they are generally office-based”. She says that they would “rarely come out of the office”. She states that there have been changes in the system since Mr Buckley worked on the pig production line by which employees are rotated through stations every 15 minutes and employees are given extensive knife training during their induction.
IAN KAVANAGH
Mr Kavanagh is the respondents’ general manager, meat processing. He joined the company in February 2001. He is unable to recollect whether the applicant was the boning room supervisor or boning room leading hand at that time. He continues:
“When I first commenced in my role Doug was working under a boning room Manager who reported to me.
Whilst Doug Buckley was in a supervisory role there would have been times when he would undertook some manual work including boning or slicing work. This would have been in the role to assist a person who was learning the role, or to catch up if the line had fallen behind, but it was ad hoc and it was not part of his brief as a supervisor.
Doug Buckley may have from time to time worked in various other areas including the palletising area where cartons come out to be palletised, and he would have performed other manual duties in other areas from time to time. However, as mentioned it was ad hoc and may have only been for a few minutes to a few hours at a time and there may have been days where he was required to undertake some manual work a couple of times a day. But there would be other days where he may not do any manual work at all.
Essentially Doug Buckley’s role was to coordinate and supervise the Boning Room production. There would have been times where a bottleneck developed where Doug would be required to pull cartons off the line to free up a bottleneck but as mentioned this happened in an ad hoc manner and was a small part of the work he undertook – it was inconsistent in its regularity.”
Mr Kavanagh says that as a supervisor the applicant’s main job was to make sure the line was manned in accordance with workplace agreements and customer specifications and to organise other people for short-term absences and that the product left the boning room in an orderly fashion. He says that:
“Doug Buckley would walk up and down the line attending to any issues that arose and generally supervising the flow of the product through the boning room.”
In his room as boning room manager the applicant was required to “organise the administration of the boning room” which involved the rostering of labour, sequencing of production and tending to payroll and disciplinary matters. He also spent a lot of time in the value-added area. Mr Kavanagh does not elaborate on what was involved in that work.
DISCUSSION AND FINDING
The applicant’s medical case is put most comprehensively by Dr Graham Doig, orthopaedic surgeon, who examined the applicant on 23 June 2020 and furnished reports to the applicant’s solicitor. By his report dated 25 June 2020, Dr Doig recorded the following:
“The pain initially started in 2009 while working as a slicer and boner at that time, commencing as a casual labourer at the beginning of his tenure. His job would involve a lot of lifting, particularly of carcasses and tubs of meat and negotiating steps, in addition to knife work and administration duties.”
Dr Doig recorded that the applicant had not suffered an acute injury to his right hip joint but the pain and stiffness “are simply deteriorating with time”. After reviewing x-rays, which demonstrated severe osteoarthritis of the right hip and moderate osteoarthritis of the left,
Dr Doig expressed the opinion that the diagnosis was of primary idiopathic osteo-arthritis of the right hip joint.In respect of causation of that condition, the doctor said this:
“The cause of primary, idiopathic osteo-arthritis of the hip is unknown and is thought to be multi-factorial in origin. Certainly, in the presence of degeneration which was diagnosed in 2013, continuing to work as a slicer and boner requiring a lot of lifting, bending and twisting, would symptomatically exacerbate and aggravate the hip arthritis, as would similar activities out with [sic] employment.”
Dr Doig was asked to consider whether employment was the “main contributing factor” to a disease of the hip as required by s 4(b) of the 1987 Act. Dr Doig responded thus:
“Mr Buckley developed symptoms in his right hip in 2009. A diagnosis was not made until 2013. It would therefore appear that the heavy, physical demands of his position with Rivalea (Australia) Pty Ltd would have had the potential to symptomatically exacerbate the hip pathology.”
The doctor noted that the applicant had “continued to work in a physical position up until 3 years ago”. He expressed the opinion that hip replacement surgery was an “excellent procedure for advanced osteoarthritis”. He suggested that it should be delayed as long as possible in view of the applicant’s relatively young age.
By a supplementary report dated 20 July 2020, Dr Doig clarified some aspects of his earlier report. He said this:
“There is no doubt that Mr Buckley’s heavy physical employment, while employed with Rivalea (Australia) Pty Ltd, would have symptomatically exacerbated and been a substantial contributing factor in expediting this degenerative process due to the physical demands of the position. His main pastime is playing golf which would certainly not be as physically stressful as performing the activities of his employment.”
Based on this reasoning, Dr Doig concluded that “employment appears to have been the main contributing factor to the onset of the symptoms and its progressive deterioration over the years.”
The contrary case is put by Dr Powell, who saw the applicant on 28 January 2020 and prepared a report of 3 February 2020. Dr Powell took a history of the applicant’s progression from slicer to his current role as manager. Relevantly, he recorded the following:
“He indicated for a period of approximately 8 to 10 years whilst working on the floor this job was physically demanding undertaking the process work, slicing and boning, In addition, he worked overtime which involved starting approximately 1½ hours prior to the commencement of his normal shift and undertaking the stacking and transfer of meat products in boxes and containers, weighing up to 27.5kg.”
Dr Powell took a history of hip pain commencing six to seven years before the consultation. He noted that x-rays of the hip taken on 20 November 2013, on referral from Dr Johnson, showed evidence of significant bilateral hip arthritis. He expressed the following opinion:
“There was no specific incident. Mr Buckley’s symptoms have developed in a gradual fashion without any specific incident. The available [sic] indicates Mr Buckley is suffering from primary osteoarthritis involving both hips which is clinically more severe on the right side.”
In respect of causation, Dr Powell said this:
“Though I acknowledge his long period of employment with Rivalea (Australia) Pty Ltd, I do not believe there is sufficient evidence to conclude that his employment represents the main contributing factor in either the development or permanent aggravation of the degenerative disease process involving the hips.”
Dr Powell thought it likely that the applicant would have required a total hip replacement at about the same time irrespective of his employment. While the work that he performed early in his career involved a “significant physical component”, such duties were not “conclusively implicated in the subsequent development of osteoarthritis”.
By a supplementary report dated 11 August 2020, Dr Powell noted that Dr Doig had also diagnosed primary osteoarthritis of the right hip. He continues:
“I do not believe that there is sufficient evidence to conclude that his employment represents the main contributing factor in the aggravation of the underlying degenerative disease process. His symptoms and associated functional limitations are entirely consistent with the natural history of the underlying degenerative disease process. Although his work does have a physical component I do not believe there is sufficient [sic] to conclude that it represents the main contributing factor to the aggravation of the underlying degenerative disease process. Mr Buckley’s presentation is consistent with the natural history of the condition.”
The only other medical contribution to the debate on causation is made by Dr David Kirwan, the treating orthopaedic surgeon. By a letter dated 11 November 2020 addressed to the applicant’s solicitors Dr Kirwan stated that he had not read Dr Doig’s report but said that the applicant’s “work has contributed to his condition. He has the condition on both sides.”
By an earlier report dated 26 September 2019, addressed to Dr Farrell, the applicant’s general practitioner, Dr Kirwan noted that the applicant had been involved in heavy manual work loading and unloading crates of containers and that the work involved crouching and ascending and descending flights of stairs up to 100 times a day. He comments:
“In terms of bone architecture, the x-rays you kindly arranged confirm a pattern of femoracetabular impingement. So, the crouching work has been a contributing factor to the onset of the disease. If he was an accountant, he probably would not have arthritis by now.”
There is no agreement as to when the applicant’s right hip symptoms commenced.
Mr Robertson argued that a note of Dr Christopher Johnson dated 8 November 2013 suggested that the applicant’s hip symptoms commenced in 2012 in accordance with the history provided by the applicant at that consultation. The applicant told the doctor that he had “12 months of trouble with his hip”. By that time and he was visibly limping favouring the right side.The other contemporaneous document which may shed light on this issue is the attendance at the Corowa Medical Centre on 9 July 2012, when the applicant was referred for x-rays of his low back, pelvis and right hip. The applicant says:
“I assume I had attended at the medical centre complaining about the symptoms in my hip.”
On the other hand, the workers compensation claim form dated 9 November 2012, almost certainly referable to the above consultation refers only to a back injury in 2010.
If it is necessary to make a finding as to whether the applicant first experienced symptoms in 2009, 2010, or in 2012, I believe Mr Robertson’s submission is probably correct. The applicant “assumes” that he may have had symptoms in his right hip at the time of the initial back and hip x-ray. It is not evident that he has any independent recollection of this fact.
The record in Dr Johnson’s consultation is probably the best available evidence on the issue. That would place the onset of hip symptoms in 2012. That is consistent with note of hip symptoms commencing approximately 12 months prior to the 2013 consultation and the history taken by Dr Powell of symptoms commencing “approximately 6 to 7 years ago”. I appreciate that the applicant may have had some symptoms in his right hip at the time of the consultation which resulted in the referral for x-rays on 9 July 2012.
The more difficult question is the nature of the work which the applicant performed in the roles of boning room supervisor, boning room manager, and the subsequent roles in the Meccano team and in R&I before his appointment as retail account manager . It is accepted by the parties that the last of these roles was entirely clerical/managerial in nature.
In his submission, Mr Robertson referred to the Position Description documents for the roles of boning room production supervisor and boning room production manager which are attached to the respondent’s Reply. It is true that a consideration of Key Responsibilities sections of those positions as recorded in the document does not suggest that the applicant was required to perform much in the way of physical work in either job. On the other hand, experience suggests that job descriptions do not always faithfully reflect the activities which a worker is required to perform in the course of his work.
In this case, the Position Description for boning room supervisor was revised in 2020, some two decades after the applicant was appointed to that position, and the Position Description of the boning room manager was revised in March 2019, some 14 years after the applicant was appointed to that position. There is no evidence which directly addresses the changes that have been made to these documents over the years or to the nature of the work performed in either position during that time. The Position Descriptions for the applicant’s subsequent positions may be more reliable. But they also require the applicant to perform “other duties as directed”.
In those circumstances, it is safer to determine the nature of the applicant’s work in each position by reference to the accounts of the witnesses rather than to the various Position Descriptions.
The chronological table prepared by Ms Pierce appears to be a retrospective analysis of the work which the applicant performed over the years. It is not evident from her statement that she observed the applicant’s work as a boning room supervisor or boning room production manager. Rather, she appears to recount information she has gathered from documents or been told by other employees. On the other hand, the applicant, Ms Webb and Mr Kavanagh all provide first-hand accounts of the nature of the applicant’s employment, although
Mr Kavanagh’s employment did not commence until 2001.It is difficult to reconcile the evidence of these witnesses. There was no application to cross-examine any of them at the arbitration hearing. It was not suggested that the evidence of any of them was unreliable. As individuals approach jobs differently, it is probably prudent to give weight to the evidence the worker as to the tasks he performed as a boning room supervisor and production manager. Mr Kavanagh suggests, as Mr Parker submitted, that he was a “hands-on” supervisor manager and it is plausible that he performed more physical work than was necessary to satisfactorily fulfil these roles.
On the other hand, I have found it extremely difficult to reject or to discount the evidence of Ms Webb, the current boning room supervisor, who undoubtedly worked for the respondent at the time the applicant filled this role and the role of production manager. Her evidence is that the applicant would only work on a line once a week “for a toilet break or something similar” as the boning room supervisor. Her evidence in respect of the role of boning room manager is striking. She states that unless there was a vacancy on the line “the Boning Room Manager rarely would come out office”.
There is nothing in Mr Kavanagh’s evidence that is inconsistent with that evidence. His evidence essentially addresses the work the applicant performed as the boning room supervisor. He does not specifically address the role of boning room manager.
Similarly, in his supplementary statement, the applicant addresses the work that he performed while working as a supervisor but does not specifically address the work he performed after 2005 as a production manager. While I accept the applicant’s evidence that there was a significant “hands on” aspect to his role as a production supervisor with significant parts each day is spent on his feet for me physical activity, there is little to counter Ms Webb’s evidence in respect of the period after 2005. That is the period during which the applicant was employed as the boning room production manager. The applicant’s evidence of the post 2005 employment is of a general kind which does not explain the nature of his employment as a production manager in detail.
In the circumstances, I am not able to make a positive finding that the applicant performed the type of physical work which the medical practitioners implicate as the cause or material aggravating factor of osteoarthritis after he became the boning room production manager. It follows that there is a significant temporal gap between his performance of heavy physical work and the onset of hip symptoms which occurred, at the earliest, in 2009,or, more probably, in 2012.
In Fernandez v Tubemakers of Australia Ltd (1975) 2 NSWLR 190, Glass J A said this at 197:
"The issue of causation involves a question of fact upon which opinion evidence, provided it is expert, is receivable. But a finding of causal connection may be open without any medical evidence at all to support it: Nicolia v Commissioner for Railways (NSW)(1970) 45 ALJR 465, or when the expert evidence does not rise above the opinion that a causal connection is possible: EMI (Australia) Ltd v Bes[1970] 2 NSWR 238; appeal dismissed (1970) 44 ALJR 360N. The evidence will be sufficient if, but only if, the materials offered justify an inference of probable connection. This is the only principle of law. Whether its requirements are met depends upon the evaluation of the evidence."
I doubt whether the evidence in this case permits an inference to be drawn on the issue causation: see the discussion by McColl JA in Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260(17 October 2017) at [381-386]. It is, therefore, necessary to consider the medical evidence against the background of the finding I have made in respect of the nature of the applicant’s employment in conformity with the reasoning in Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWLR 127.
it is not entirely clear whether Dr Powell concludes that it is unlikely the applicant suffered an aggravation injury or that he did, but that the primary arthritis and need for surgery did not result from it. I suspect the former is probable. It is clear, however, that Dr Powell does not accept there was a provable causal connection between the arduous work which the applicant undoubtedly performed in his early employment with the respondent and the onset of symptoms of osteoarthritis “six or seven years before the consultation”. It is the lengthy temporal gap between the arduous work and the onset of symptoms which gives rise to the doubt as to causal nexus.
Obviously, the presence of symptoms is not a prerequisite for proof of injury. There are medical conditions that may be influenced by work which progress silently. If, however, a particular activity or a particular class of employment causes symptoms an inference can readily be drawn of a causal connection between the employment and the disease. If symptoms commence a long time after the activity, it may be incumbent on the party asserting a connection to explain the lacuna. I doubt that the medical evidence in this case does this.
In his initial report, Dr Doig expressed the opinion that continuing to work as a “slicer and boner requiring a lot of lifting bending and twisting, would symptomatically exacerbate and aggravate the hip arthritis”. He returns to the question of causation in his supplementary report stating that the “heavy physical demands of his position would have the potential to symptomatically exacerbate the hip pathology.” By his report of 20 July 2020, Dr Doig concludes that “employment appears to have been the main contributing factor to the onset of symptoms and its progressive deterioration over the years.”
Underlying this opinion is an assumption that the applicant was performing the heavy physical work of a slicer and boner at around the time his right hip became symptomatic. In my opinion, the evidence does not prove that assumption. The doctor does not specifically address the changes in the applicant’s work after 2005 save for a fleeting reference to the performance of “administrative work”.
Dr Kirwan concludes his report of 11 November 2020 by expressing the opinion that “there is no doubt that work has contributed to the condition”. While the report does not contain any history of work, the doctors earlier report of 26 September 2019 contains a history of heavy manual work loading and unloading crates and containers stop he noted that work crouching and ascending stairs many times during the course of the day. Against that background, this the doctor opined that the x-rays demonstrated femoro- acetabular impingement and that “crouching work has been a contributing the onset of the disease”.
It is not entirely clear whether Dr Kirwan is expressing the opinion that this work contributed to the underlying disease process or to rendering it symptomatic. His statement that the applicant was “an accountant he probably would not have arthritis by now” suggests the former. On the other hand, the reference to an underlying femoro-acetabular impingement suggests the latter.
On my finding as to the nature of the applicant’s employment it is unlikely that crouching work was a significant part of the applicant’s employment after 2005. Dr Kirwan does not offer any explanation as to why the applicant’s employment in heavy manual work, relevantly in crouching work, prior to 2005 produced symptoms in the applicant’s right hip in 2012. Accepting the view expressed by Dr Powell and Dr Doig that the applicant has primary osteoarthritis of the hip, which is multifactorial in origin, a connection between the applicant’s work before 2005, when his hip was asymptomatic, and the aggravation of the disease is difficult to accept.
None of the medical practitioners who have offered opinions in the case have a history that is entirely consistent with my findings. In my opinion, the history recorded by Dr Powell best approximates my findings of fact in respect of the applicant’s work. Importantly, it records the gap between the performance of heavy work and the onset of symptoms. In those circumstances, it seems to me that I should give weight to his opinion. It follows that I do not accept the contrary medical opinions. Those opinions are not based on an assumption as to the nature of the applicant’s work sufficiently similar my findings of fact to permit them to prevail over the opinion of Dr Powell.
In those circumstances, the applicant has not proven that his need for right hip surgery results from employment injury. I make an award for the respondent.
Paul Sweeney
MEMBER
6 April 2021
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