Cook and Comcare

[2003] AATA 1337

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1337

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/523

GENERAL ADMINISTRATIVE DIVISION		)
Re		BRUCE RAYMOND COOK

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr B J McCabe, Senior Member

Date25 November 2003

PlaceCairns

Decision The Tribunal affirms the decision under review. 

(Sgd) Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – liability – left inguinal hernia condition – causation – whether condition caused by applicant’s employment – no connection established – affirmed

Safety, Rehabilitation and Compensation Act 1988

WRITTEN REASONS FOR ORAL DECISION

23 December 2003 Mr B J McCabe, Senior Member

1.      Mr Bruce Cook sought review of a decision of Comcare denying liability for his left inguinal hernia condition.  The Tribunal heard his application for review in Cairns on 24 and 25 November 2003.  At the conclusion of the hearing, the Tribunal gave an oral decision affirming the decision under review.

2.      On 2 December 2003, the solicitors for the respondent requested the Tribunal provide it with written reasons for its decision.  Those reasons are briefly set out below.

Written Reasons for Oral Decision

3.      This is an application by Mr Bruce Cook for review of a decision made by Comcare denying liability for his left inguinal hernia condition.  The original decision was made on 29 June 2000 and that decision was affirmed after reconsideration on 30 May 2001. 

4. The Tribunal is satisfied that Mr Cook's condition is capable of being considered as an injury for the purposes of section 6 of the Safety, Rehabilitation and Compensation Act 1988.  The Tribunal is also satisfied Mr Cook developed his left inguinal hernia condition by August 1999.

5.      The question here is one of causation.  Did his work cause or contribute to the development of his condition?  And the question has to be considered in light of the fact that between five and ten per cent of the population, according to the medical evidence, are likely or prone to develop this condition.  It's also necessary to keep in mind that according to both Doctors Stevenson and De Costa, there is no consensus as to what causes hernias.  As Dr De Costa explained, some people just get hernias.  Both doctors agree that intra-abdominal strain might contribute to the development of a hernia although Dr Stevenson said that strenuous activity could also strengthen the muscles and make the hernia less likely in the first place.

6.      The two medical experts did agree that the instance in March 1996 when the applicant was struck in the groin, to which he originally attributed the development of his condition, was certainly not the cause of the condition.  Rather the debate focused on whether the applicant's work was strenuous enough to trigger the hernia.  Both doctors agreed that heavy work would be likely to have that effect.  I heard the evidence of Mr Cook, Mr Statham and Mr Wiegand.  I say at the outset that I treat Mr Wiegand's evidence with some caution as he obviously feels aggrieved by his experiences at AQIS.

7.      Mr Cook said the work was heavy especially at the viscera table.  Because material was often not properly presented for inspection Mr Cook said he was forced to reach and drag material across the table.  That was typically done with one hand across a wet moving table.  There was no lifting as such even though the paunches, in particular, might be quite heavy.  Mr Harrison, who also gave evidence, and Mr Statham said the work was not too difficult; except where the paunches were stuck to the table.  Mr Statham explained that sometimes occurred after a break because he said the blood would congeal. It did not happen often and in any event Mr Harrison said it was unlikely to happen at Innisfail since there was no air-conditioning to dry out the environment. 

8.      Mr Statham's experience was at Dinmore where air-conditioning was a feature.  I conclude after hearing all the evidence that Mr Cook only engaged in moderate physical work.  He was unable to point to a particular instance where he might have exerted himself in such a way that there was extra or unusual intra-abdominal pressure that might lead to a hernia.

9.      I note in passing that Mr Statham's hernia arose out of a specific event where he slipped on fat and fell against the table.  There was nothing like that here. 

10.     The question then is whether moderate work could trigger the hernia.  Dr Stevenson thought it was unlikely, Dr De Costa said it might and in the absence of an alternative explanation probably did.  The evidence of both doctors on this point was not entirely helpful.  Dr Stevenson was a consultant physician but he did not have extensive experience in treating this sort of condition.  Dr De Costa is an expert on treating the conditions but he was not an expert on causation.

11.     He relied, in his own words, on commonsense and observation over a period of time.  I note that the applicant's condition was not diagnosed until some months after he left AQIS.  Dr De Costa pointed out the diagnosis might have been difficult to make, but there is limited evidence that Mr Cook suffered from this condition prior to that point.  He did say he suffered from a stitch like feeling but there is a paucity of other evidence. Mr Wiegand confirmed Mr Cook complained of a number of ailments, especially his knee.  He did not mention his groin.  There is also no record until comparatively late in the day, in Dr Catton's notes, of hernia symptoms.

12.     I also note the absence of any reference to a specific incident which might trigger the hernia.  It is certainly possible that Mr Cook's work caused or contributed to the development of his hernia but the uncertain state of the scientific evidence means it might have been a number of other things too. 

13.     After hearing all of the evidence I am not satisfied that Mr Cook's injury is attributable to his employment.  Therefore, the decision under review is affirmed.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Senior Member

Signed:         Sarah Oliver
  Associate

Dates of Hearing  24 and 25 November 2003
Date of Oral Decision                25 November 2003
Date of Written Reasons          23 December 2003

Counsel for the Applicant         Mr Dickson
Solicitor for the Applicant          Campbell Standish Partners
Counsel for the Respondent     Mr Polin
Solicitor for the Respondent     Phillips Fox