Dines v Coffs Harbour City Council
[2021] NSWPIC 503
•7 December 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Dines v Coffs Harbour City Council [2021] NSWPIC 503 |
| APPLICANT: | Steven Dines |
| RESPONDENT: | Coffs Harbour City Council |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 7 December 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for weekly benefits; applicant alleges injury by way of bilateral hernias; respondent alleges hernias are not work-related; no issue as to pre-injury earnings or total incapacity for period claimed; Held - on a common-sense evaluation of the causal chain, the hernias are work-related; the applicant made complaints consistent with hernias less than a week after the index incident, and his treating practitioners were, whilst uncertain of the presence of the hernias, concerned they may be present; moreover, there is no evidence to contradict the applicant’s claims as to the nature and conditions of employment which were repetitive and heavy, nor as to his complaints of pain and restriction post-injury; on balance, injury by way of bilateral hernias (together with accepted lumbar spine injury) is established and was causative of the applicant’s incapacity; respondent ordered to pay weekly compensation for the period claimed (24 August 2020 to 6 November 2020). |
| ORDERS MADE: | 1. The applicant suffered injury by way of bilateral hernias in the course of his employment with the respondent on 26 March 2019 and as a result of the nature and conditions of his employment up to 24 August 2020. 2. The respondent is to pay the applicant weekly compensation pursuant to section 36 of the Workers Compensation Act 1987 at the rate of $1,421.80 per week for the period 24 August 2020 to 6 November 2020. 3. The respondent is to pay the applicant’s reasonably necessary medical and treatment expenses upon production of accounts, receipts and/or Medicare Australia Notice of Charge. |
STATEMENT OF REASONS
BACKGROUND
Mr Steven Dines (the applicant) has been employed by Coffs Harbour City Council (the respondent) for approximately 25 years as a fitter, performing maintenance and repair of water and sewerage assets including pump stations, treatment plants and other water infrastructure. There is little doubt that the applicant’s work was often heavy and required him to lift heavy plant and equipment, as well as work in confined spaces.
There is no issue the applicant suffered a lower back injury in the course of his employment with a date of injury of 26 March 2019. He also claimed that he suffered a right-sided hernia as a result of the nature and conditions of his employment with the same deemed date of injury. He alleges he subsequently developed a left-sided hernia as a result of the nature and conditions of employment, and alleges his injuries were aggravated by his duties carried out after his initial return to work and up to 24 August 2020.
For its part, by Dispute Notice dated 12 June 2019, the respondent alleges the femoral hernia suffered by the applicant was not work-related, and as such neither was the left-sided hernia.
The applicant seeks payment of weekly compensation for a closed period between 24 August 2020 and 6 November 2020, together with payment of reasonably necessary medical and treatment expenses.
ISSUES FOR DETERMINATION
The parties agree that the only issue in dispute is whether the alleged hernias are work-related. There is no issue as to the applicant’s pre-injury average weekly earnings (PIAWE) or that he was totally incapacitated for the period claimed. Likewise, there is no issue as to the reasonable necessity of treatment.
The only issue is the causation of the applicant’s injuries and whether they are work-related.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing before me on 1 November 2021. On that occasion, Mr D Adhikary of counsel instructed by Mr D Twohill appeared for the applicant. Mr G Guest, solicitor, appeared for the applicant.
The parties entered into a period of conciliation in which I used my best endeavours to assist with a resolution; however, they were unable to resolve their differences and the matter proceeded to hearing.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Reply and attached documents, and
(c) respondent’s Application to Admit Late Documents (AALD) dated 13 October 2021.
Oral Evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
The cause of the applicant’s hernias
The applicant bears the onus of proving that his hernias are work-related. In determining the cause of an injury, the Commission must apply a common-sense test of causation. In the workers compensation context, the appropriate test was set out by Kirby P (as he then was) Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) where His Honour said:
“The result of the cases is that each case where causation is an issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is now not accepted. By the same token, the mere proof that certain events occurred which predisposed the worker to subsequent death or injury, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common-sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.” (emphasis added)
“Injury” is defined in section 4 of the Workers Compensation Act 1987 (the 1987 Act). As has been noted in myriad authorities, what is required to establish the presence of an injury is not only an injurious event but a relevant change in pathology to the allegedly affected body system. The applicant bears the onus of proving the presence of such an injury.
In this matter, for the following reasons, I am satisfied on the balance of probabilities that the applicant’s bilateral hernias are work-related injuries.
The applicant gives uncontroverted, uncontested evidence surrounding the circumstances of his injury in his statement. From paragraph 7 and following, he states:
“7. On 26 March 2019, I was working in the Council workshop on a very large water (sewerage) pump.
8. We were working with a block and tackle set-up.
9. We had been working on the pump for a couple of days and it was on the second day that I was injured.
10. I would estimate the pump would have weighed a couple of hundred kilos just on the piece that we were working on.
11. We decided against working on the workbench because of the risk it would have posed had it fallen on anyone.
12. Because we worked on the pump on the floor, we needed to lift it up off the ground on a number of occasions so that it was easier to work on.
13. We used a device called a porta power to split the pump apart so an insert could be replaced. In order to get the porta power under it, we had to be down on our knees, climbing around, squatting down on our haunches and generally manipulating the devices in quite awkward and crouch positions.
14. The part we were trying to remove is up off the ground with a height of around a foot. This meant we essentially worked on our knees to get the porta power hydraulic lift into the part put between the fixed part that was staying in the insert that was being replaced. We would then have to work in a somewhat awkward position to pump the device up and separate it out.
15. I would estimate we worked in that fashion for about six hours on the day I was injured.
16. Eventually, we got the insert off (which weighs around 40 kilos) and the insert was replaced.
17. I was working that day with my offsider, Jamie Devine.
18. In addition to the pump we worked on, on 26 March 2019, a gentleman brought in a length of sewerage pipe which would have been around five metres long and placed it in the middle of the workshop. On two occasions, we had to move it out of the way and it took three of us squatting down to lift it up and move it out of our work area.
19. Over the course of the day, I noticed that I was starting to get an ache in the fleshy part of the back of my hip. I believed this is called the loin.
20. I was also getting pain in the front of my groin where the hip crease at the front is. This was on the right-hand side.
21. A few times throughout the day and afternoon, I groaned and Jamie would have been aware that I was in a bit of pain.
22. I never had a singular tearing or ripping event when the pain came on suddenly. It came on over the course of the day whilst performing the duties I described above.
23. At the end of day, I said to Neil Manson, our supervisor, words to the effect ‘Jeez, I’m sore’ and was rubbing my back and hip. I also had some pain in the groin on the right-hand side.”
For the respondent, Mr Guest has submitted close consideration needed to be given to the contemporaneous clinical records as opposed to the history given by the applicant in his statement. Mr Guest noted the statement was taken in 2020, and whilst no criticism was levelled at the applicant’s credit in terms of the history, he submitted there was a discrepancy given the effluxion of time and the applicant falling into the human failing of reconstructing events rather than providing an accurate recollection.
Mr Guest took the Commission to the clinical records found at page 241 of the Application. There is a clinical record taken by Dr Oliver, general practitioner, on 27 March 2019, namely the date of the index incident. That record relevantly provided the following:
“Lifting heavy pipe and parts from pump and that day back hurt (yesterday)
Still sore, spasmy ache mostly right-sided
Previous left sciatica years ago
No radiating pain or weakness, no incontinence”Mr Guest noted that the applicant made no complaint of any pain consistent with a hernia on that occasion and submitted that there was no contemporaneous history of groin pain.
In relation to that submission, there are two relevant points. The first is, the authorities are clear that care must be taken in relying upon history as given to treating practitioners in a clinical environment. Those doctors are not tasked at the time of taking histories and recording them for legal purposes, rather they are more concerned with the treatment of their patient than necessarily recording every element of complaint raised by them.
Secondly, in my view, the respondent’s submission cannot carry the day in circumstances where, by 1 April 2019, only six days after the incident at issue, the applicant again consulted Dr Oliver where the following relevant entry was made:
“Still not feeling much better
Pain is now localised around right hip, worse on walking feels fine if he lies down
Sitting doesn’t hurt
No urinary or bowel symptoms
No radiating pain
Just a dull ache that he does not feel is coming backExamination:
SLR and hip movements normal and pain free.
Able to touch toes without discomfort today
Tender over quads origin, around growing trochanter but not bony
No cough impulse felt or femoral/inguinal herniae felt
So likely muscularSuggest trial physio this week but if it isn’t better or worst then consider scanning to help elucidate the cause”
It can therefore be seen that by 1 April 2019, the applicant’s general practitioner was already examining him to determine whether herniae were present.
It is apparent that in the early stages of the applicant’s treatment following the index incident, his treating practitioners were unclear as to the aetiology of his problems. His physiotherapist, David Rose, provided a report to the respondent’s insurer dated 5 April 2019, at which time he noted the applicant’s symptoms and found pain in the right hip region together with pain over the quadratus lumborum muscle and erector spinae muscle.
As Mr Guest noted, at that time there was no suggestion of any hernia. However, Mr Rose provided a report on 26 April 2019 to Dr Oliver he queried whether he was suffering from a hernia and recommended pelvis/hip/low back x-ray and ultrasound “on potential herniae”.
In light of these medical records, in my view, the respondent’s submission that complaints of groin pain only arose up to approximately a month after the index event is not strictly correct.
The respondent submitted that each of Dr Roussos, treating general surgeon, and Dr Wong, IME, based their opinions on the applicant stating he immediately felt pain in his groin area. The respondent submitted that if that was found not to be the case, then the basis for those opinions falls away.
With respect to the respondent, I reject this submission. As was noted by Dr Roussos, treating general surgeon, in a report dated 23 May 2019, “interestingly, it is difficult to feel a lump. I can feel a very small positive cough impulse over his deep ring but it is very difficult. I can’t feel any groin hernia over the superficial saphenous opening but he is quite tender when you put pressure over his direct triangle consistent with the ultrasound findings of a decent size medium to large right femoral hernia”.
Dr Roussos, who as treating surgeon carries some weight in terms of his opinion, also noted that he had ordered an ultrasound of the applicant’s left groin, notwithstanding his initial complaints were in the right groin. The basis for this was:
“Femoral herniae have the tendency to be bilateral and I just want to assess the other side. As well I have asked the MRI to have a look at his adductor tendons for any sportsman type of tendonitis that could have occurred from either overuse or strain at the same time of his imminent hernia. I am hoping to have this done after we get approval from the workers compensation people and have it wrapped up for him in the next two to four weeks.”
In a report on the same date to the respondent’s workers compensation insurer, Dr Roussos noted that the applicant should have a timely operation on his right-sided hernia as “there is a significant chance of incarcerating”. Permission for that surgery was refused, and on 27 February 2020, Dr Roussos again wrote to the respondent’s insurer in the following terms:
“I would like to bring to your attention that this man is still waiting for his hernia surgery. I would like to stress that the nature of his hernia disease is very likely related to the muscle strain. It is quite a complicated case because of two minor malalignments in the nature of his hernia disease. It has now been close to 12 months since the initial injury and I would like to get further ultrasound and MRI. I do stress that you relook and re-examine this case.
Currently, Steven has a painful lump in his right groin, which can be very easily interpreted as an inguinal hernia. You have to understand that the way we repair this hernia is that we reinforce the myopectineal orifice that can potentially have three herniae, a femoral, and two separate inguinal hernia. It is academic the nature of the hernia disease. It is related to the strain and it needs to be repaired.”
I prefer the opinion of Dr Roussos, agreeing as it does with Associate Professor Wong, to that of the respondent’s IME, Dr Edwards. Dr Edwards’ stands alone as the only doctor who states the applicant’s injury is not work-related. Whilst it is the case that Dr Roussos initially diagnosed the applicant is having a right-sided femoral hernia and later said it was an inguinal in nature, in my view, the point is on common sense basis the hernia arose shortly after the lifting incident in issue, and relevantly, the applicant was complaining of groin pain less than a week after the work-related incident on 26 March 2019.
For his part, Dr Edwards found that the applicant suffers from a right femoral hernia. He stated, “I am not convinced the hernia has been caused by the incident described. His initial symptoms where in his right lower back and above the right iliac crest. These symptoms are also noted by Dr Marshall”
Dr Edwards does not, however, seem to take into account that by less than one week after the initial incident, the applicant was complaining of groin pain. In my opinion, given the proximity of complaint consistent with hernia to the index incident, it stretches credulity to assert the applicant coincidently developed bilateral herniae at just the time he complained of pain and discomfort as a result of the injury at issue, but that those herniae are congenital in nature or were not caused by that work incident.
Whilst correlation does not equate to causation, this is a worker who presented with consistent complaints of pain and restriction within days of the incident at issue, and whose treating doctors immediately suspected he had suffered a hernia. Those suspicions were borne out.
It is also noteworthy that the prognosis of Dr Roussos, treating surgeon, came to pass. That is, over time the applicant developed a bilateral hernia which he indicated would likely be the case if the initial hernia was not treated quickly.
In his supplementary report dated 13 October 2021, Dr Edwards stated that the applicant’s bilateral inguinal hernias demonstrated on CT scan in August 2020 were constitutional in nature. In that report, Dr Edwards notes that in approximately 20 to 25% of patients who have a hernia on one side, an asymptomatic hernia is found on the other side.
In my view, that broadly supports the prognosis which Dr Roussos set out in his earlier report. Dr Edwards’ second report is largely confined to the recitation of an article which calls into question the view that strenuous lifting in the workplace can cause a hernia. The difficulty with that position, however, is that it does not take into account the onset of complaint and pain by the applicant in the immediate aftermath of the injurious incident at issue. On a common sense basis, I am satisfied on the balance of probabilities that the incident at work caused the applicant’s right-sided hernia, which in turn has led to the development of a left-sided hernia as was presciently predicted by treating surgeon, Dr Roussos.
I also note that Dr Edwards, quite appropriately, opines that an examination is more likely to determine the presence or otherwise of herniae rather than relying exclusively on the results of radiology. Dr Roussos, treating surgeon, did carry out that examination, and indeed found the presence of both those herniae.
In my view, the evidence in this matter is overwhelming. On a common sense basis, there is a causal connection between the applicant’s employment duties on 26 March 2019 and the development of his bilateral herniae. As there is no issue as to either the reasonable necessity of the treatment on those herniae or as to his total incapacity for employment, the Commission will make orders in accordance with the page 1 of the Certificate of Determination.
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