GraEme duff and comcare
[2010] AATA 467
•24 June 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 467
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2008/5333
GENERAL ADMINISTRATIVE DIVISION ) Re GraEme duff Applicant
And
comcare
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member
Dr M Thorpe, Member
Date 24 June 2010
PlaceSydney
Decision The decisions under review are affirmed.
....................[sgd]..........................
Ms N Isenberg
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – whether employment contributed to a significant degree – work as a meat inspector – whether hip condition related to employment – whether a permanent impairment – decisions under review affirmed.
Safety, Rehabilitation and Compensation Act 1988: 5A, 5B, 14, 24, 27
Amaca Pty Ltd v Ellis; South Australia v Ellis; Millennium Inorganic Chemicals Ltd v Ellis [2010] HCA 5; (2010) 84 ALJR 226
Comcare v Sahu-Kahn (2007) 156 FCR 536REASONS FOR DECISION
Ms N Isenberg, Senior Member
Dr M Thorpe, Member
Background
1. Mr Duff, who is aged 62, has been employed as a Meat Inspector with the Australian Quarantine and Inspection Service (“AQIS”) – or its predecessor service –since March 1976.
2. Mr Duff claims compensation for hip pain which he attributes to the nature and conditions of his work. He also claims permanent impairment because of that condition. Comcare does not dispute he has bilateral osteoarthrosis of the hips; however, his claims have been refused by Comcare because it says Mr Duff’s condition is degenerative and would have arisen at the same time and stage of his life regardless of the type of employment duties he was undertaking.
Issues for determination
3. The issues for determination are:
(a)Whether the nature and condition of Mr Duff’s employment has contributed, in a significant degree, to his hip condition.
(b)Whether Mr Duff is entitled to compensation in respect of his hip condition pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
(c)If so, is Mr Duff presently entitled to compensation for permanent impairment pursuant to section 24 of the SRC Act and compensation for non-economic loss, pursuant to section 27 of the SRC Act?
4. While it was noted that Mr Duff had lodged an accident claim dated 24 June 2005, this was not pressed as a frank injury giving rise to his condition.
5. It was also noted that the original claim had made mention of the applicant’s back, but it was agreed that there was no matter before the Tribunal in relation to Mr Duff’s back.
Statutory scheme
6. By s 14 of the SRC Act, the respondent is liable to pay Mr Duff compensation in respect of an injury suffered by him if it results in death, incapacity or impairment.
7. Section 5A of the SRC Act, so far as is relevant, defines ‘injury’ as a disease suffered by an employee and Section 5B of the Act defines ‘disease’ as:
…
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
significant degree means a degree that is substantially more than material.
8. Where an injury to an employee results in a permanent impairment, the respondent is liable to pay compensation to the employee in respect of that injury: s 24.
9. Permanent means likely to continue indefinitely. Impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function: s 4.
10. If compensation is payable under s 24, then the respondent is also liable to pay compensation for any non-economic loss suffered as a result of that injury or impairment: s 27 (1).
Applicant’s Evidence
11. Mr Duff gave evidence that he had worked as a meat inspector since 1976 at about 19 different locations. For some years he has worked at the Inverell abattoirs.
12. On 18 February 2008, Mr Duff completed a Claim for Workers’ Compensation in respect of “bilateral osteoarthritis of the hip joints and degeneration of lumbar spine” (T9). He stated that he first noticed that he was injured in 2003 and 2004 but only first sought medical treatment in 2007.
13. Mr Duff demonstrated that he experiences pain of varying intensity in the back at what amounts to the rear of the hips and which can at times travel down to his knees and ankles. He also said he had ‘most ferocious’ groin pain which he likened to a bee sting. He has problems putting on his shoes and socks and is unable to cut his toenails. His contribution to household chores has reduced. He is able to drive but has some problems getting in and out of the car. He tries to walk his dog daily. Mr Duff said he is a keen bushwalker and had walked up to 15 kms each week since his teens. However, since about 2007 his bushwalking has been reduced to about once per fortnight and a shorter distance. He denied that the bushwalking could have had some role in the development of his hip problem, although he agreed that from about 2004, at the end of a day’s bushwalking, he would have a small amount of hip pain.
14. Mr Duff currently has about 2 days a week when, after work, he may feel ‘bad’. He takes panadol as required – which is about twice per week. He takes Mobic 15 mg twice a day. He has not consulted an orthopaedic surgeon, except as requested by the respondent for the purpose of these proceedings.
15. Mr Duff described his role at AQIS in the 10 years or so leading up to the onset of his hip pain. It mainly concerned the inspection of beef carcasses:
16. Viscera inspection: this involved inspecting the various organs while standing at a table at mid-thigh height: 71 cms. He is 175 cms tall and had to bend somewhat to access the viscera. The liver is the heaviest organ – weighing between 2.5 and 14 kgs, but averaging about 7.5kgs. Mr Duff would have to turn the liver to inspect all sides. He did not have to lift it so as to take the entire weight. He would spend about 3-4 hours at this table per day. At most he would inspect 500 livers per day.
17. Head inspection: Mr Duff said that head inspection caused him no problems in relation to his hips because the inspection occurred at about shoulder height and required no lifting at all.
18. Carcass inspection: Mr Duff said that this caused him no problems, as there was limited turning of the carcass required. He agreed the turning pressure could be likened to opening and closing a gate. To access the carcasses he would have to go down a ladder of 5-7 rungs and would do this about 5 times a day.
19. Between examining each item he twists to wash his hands and knife at the tap located behind him. In all he estimated that he does this some 900 times a day.
20. Mr Duff said his role required standing in rubber boots on hard concrete surfaces all day. It has only been in the last couple of years that thin rubber matting has been provided. Mr Duff said that the floor was often slippery and that fat on the floor makes it ‘like ice’. He had slipped on numerous occasions and once, in June 2005, he had a ‘severe’ fall, falling on his left side, hurting his left hip and side of his left knee. He lodged an accident report but did not seek medical attention. He did not lodge a claim because he ‘doesn’t like paperwork’.
21. In the 10 years leading up to his hip problems he had worked from 7am to 5 pm 5 days a week. He said he would have a 20 minute ‘smoko’ in the morning, half an hour for lunch and a 5 minute break in the afternoon. He agreed in cross-examination that he only actually engaged in inspection for a maximum of 6.5 hours per day.
Other evidence
22. Kevin Evans, Business Manager AQIS, provided a statement dated 23 July 2009 (Exhibit R1) with respect to the types of duties that were undertaken by Mr Duff as a Meat Inspector:
·Mr Duff predominantly worked with beef
·A standard work day was 8 hours, but on Monday to Thursday employees are required to work 9 hours
·To cover all the work, there are five inspectors. Two are required to work on heads, two work on viscera and one on carcass
·Inspectors are required to rotate between all positions every half hour. They are required to walk several metres
·The carcass position is on a “rise and fall platform”. Movement of the platform is frequent and platforms can vibrate and jerk
·The inspectors are required to reach out from the platform and twist and turn sides of beef
·The viscera positions require the inspector to bend over a moving table to inspect the various organs and incise glands
·Head inspection required agility and bending
·The slaughter floor is wet and steamy. There is a lot of blood, water, fat and trim on the floor.
Medical Evidence
23. Mr Duff’s bilateral osteoarthrosis was confirmed by an x-ray report dated 11 September 2007 (T3) at which time the degeneration was found to be ‘moderately advanced’. By March 2009 an x-ray report noted ‘advanced osteoarthritic change in both hips’ (Exhibit A11).
24. Dr Kevin Bleasel, neurosurgeon, provided a report dated 5 December 2007 (T4). Mr Duff told him that he had pains in his back and previously had groin pains, particularly on the right side. On examination, Dr Bleasel found Mr Duff to have marked restriction of movement at the hip joints and concluded that Mr Duff had bilateral osteoarthritis of the hip joints and that his present problem was the result of work related ‘trauma’, but did not specify to what trauma he referred.
25. On 14 December 2007 (T6), Dr Bleasel opined that the deterioration of Mr Duff’s hips arose from the long period of Mr Duff’s service and the nature and conditions of his work, but did not specify what aspect of Mr Duff’s work activities to which he referred.
26. Dr John Lawson, consultant physician, provided a report dated 23 February 2009 (Exhibit A10(a)) in which he stated that as a result of (unspecified) nature and conditions of Mr Duff’s work duties, he sustained degenerative arthritis affecting both hip joints. Dr Lawson was of the view that Mr Duff’s work history has led to a gradual progression of bilateral hip pain, which has remained more severe affecting the left hip, and which is now associated with a significant measurable level of muscle wastage of the left leg and a major restriction of hip movement.
27. Professor Phillip Sambrook, rheumatologist, provided reports dated 16 December 2009 and 23 December 2009 (Exhibit A9) and also gave oral evidence.
28. Professor Sambrook took a history that Mr Duff had engaged in ‘considerable heavy lifting eg when turning over an animal or lifting its liver’. Professor Sambrook observed that osteoarthritis is often constitutional and age related, but thought that it was more probable than not that the nature and conditions of Mr Duff’s employment had acted as a significant contributing factor to his condition, either materially contributing directly or by way of aggravation of his developing arthritis. In his reports Professor Sambrook referred to systematic reviews which show a relationship between the risk of osteoarthrosis of the hip and repetitive heavy lifting [Cooper et al, “Occupational activity and the risk of hip osteoarthritis”; Jenson, “Hip osteoarthritis: influence of work with heavy lifting, climbing stairs or ladders, or combining kneeling/squatting with heavy lifting”].
29. A more recent study by Juhakoski et al, “Risk factors for the development of hip osteoarthritis: a population-based prospective study”, found heavy manual work, which was defined as manual work either mostly standing involving much lifting of light objects or lifting and carrying heavy objects, to be a significant predictor of the development of osteoarthrosis of the hip. Another recent study by Allen et al, “Associations of Occupational Tasks with Knee and Hip Osteoarthritis: The Johnston County Osteoarthritis Project”, found there were significant or elevated/borderline association with walking, lifting, standing, doing heavy work while standing, squatting, crawling and bending/twisting/reaching’. The study found that factors may increase the risk of the condition but did not find that radiographic hip osteoarthrosis was significantly associated with any occupational tasks. The study further concluded that the odds of symptomatic osteoarthrosis of the hip significantly increased with the number of physically demanding tasks performed. Neither of the recent studies has yet been considered in systematic review.
30. In his evidence Professor Sambrook said that he considered Mr Duff’s repetitious lifting of weights, even though they were not heavy, was ‘a contributing factor’ to his osteoarthrosis of the hips, and had ‘in some way contributed to his condition’. He said that even rolling a liver of only 7 or so kgs produced some force. He thought prolonged standing put pressure on the hips, as did some other of Mr Duff’s activities such as bending, stooping and twisting. That Mr Duff does not necessarily experience symptoms at the viscera table was a tribute to his stoicism.
31. The studies as a whole identified other risk factors such as obesity and trauma.
32. Professor Sambrook did not think Mr Duff’s long history of bushwalking was relevant as to causation, notwithstanding that the Allen study had considered walking to be an increased risk factor for osteoarthrosis.
33. Dr Raymond Wallace, orthopaedic surgeon, provided reports dated 11 June 2008 (T35), 24 June 2008 (T36), 17 August 2009 (Exhibit R2) and 31 August 2009 (Exhibit R3), and also gave evidence by telephone. He diagnosed Mr Duff as suffering from ‘constitutional bilateral degenerative hip osteoarthritis’. He noted that Mr Duff was taking anti-inflammatory medication but had no further therapeutic intervention. Dr Wallace was of the view that Mr Duff’s bilateral hip condition was not work related but was constitutional in nature as, in his opinion, Mr Duff’s work as a meat inspector was not consistent with the pathology at his hips. Dr Wallace confirmed that Mr Duff’s employment with AQIS was not a substantial contributing factor to his bilateral hip pathology. Dr Wallace went on to state that Mr Duff would have suffered a bilateral hip condition at the same time and same stage of his life, had he not been employed with AQIS.
34. In his evidence Dr Wallace said that in his view the ‘lifting’ Mr Duff was engaged in, that is, rolling livers weighing an average weight of 7.5 kgs, had no effect on Mr Duff’s hip function.
35. In relation to the recent studies by which Professor Sambrook had referred, he said that they were in very general terms and which they might have shown possible associations with certain activities, these did not amount to causative links. He could see nothing in the studies that provided a link with occupational activities and hip pathology. Twisting and bending was not ‘in the same league’ as the work of farmers and other workers to which the studies referred.
36. Dr Wallace observed that about 10-15% of 60 year old males have degenerative changes in their hips. He observed that the hip is the largest and most stable joint. He also did not regard Mr Duff’s long history of bushwalking to be relevant.
37. As to aggravation of a condition, Dr Wallace considered that heavy activities would have some impact, but did not consider Mr Duff’s work would have contributed to that, although he conceded that if Mr Duff had worn cartilage his duties may have caused a minor temporary aggravation. However he did not necessarily consider Mr Duff’s duties to be more arduous than ordinary activities of daily living.
38. Dr Wallace said he would have expected Mr Duff to notice a decreased level of function when performing activities if those activities were responsible for a ‘substantial’ contribution to Mr Duff’s condition.
Consideration
39. For a condition to be compensable it must be ‘contributed to in a significant degree by the employee’s employment’ in accordance with the SRC Act. A ‘significant’ degree means a degree that is substantially more than material. The term ‘in a material degree’ was discussed by Finn J in Comcare v Sahu-Kahn (2007) 156 FCR 536, where it was concluded that it ‘imposes an evaluative threshold below which a causal connection may be disregarded’, and ‘requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment’.
40. For an employee to succeed in a claim such as this, it is not necessary to establish that the employment is the central, main or primary factor in the onset or aggravation of the ailment in question, only that the employment contributed to the ailment in a significant degree. That is a matter of fact and degree to be determined on evaluation of all of the contributing or causal factors.
41. The applicant’s case relied heavily on the evidence of Professor Sambrook, who had come to his view on the basis of the history that he took from Mr Duff, his examination, and from various studies to which he referred. We observe that Professor Sambrook initially formed a view that Mr Duff’s work significantly contributed to his condition, on the understanding that Mr Duff was engaged in heavy lifting for 9 or more hours per day. The systematic reviews to which he referred supported that view. In fact, as Mr Duff acknowledged in his evidence, he generally only worked to 6 or 6.5 hours per day, only some of which time was undertaking viscera inspection – the only task that involved ‘lifting’ - manoeuvring the viscera.
42. Professor Sambrook’s revised view, taking into account the more recent studies, was that it was the combination of manoeuvring up to 500 livers per day, standing on concrete, twisting to wash and sterilise, and stooping/bending at the viscera table that significantly contributed to Mr Duff’s condition. (We observe that there was nothing in the studies that referred to standing on concrete floors as being a risk factor.)
43. The applicant’s counsel submitted that Professor Sambrook’s evidence should be preferred because his views were based on epidemiological studies, whereas Dr Wallace’s views were said to be without foundation, and his reasons for his views were not detailed. We do not agree.
44. We did not find the reports of Dr Bleasel or Dr Lawson to be particularly helpful. We did not consider the evidence of Professor Sambrook sufficient to displace the views of Dr Wallace, a practising orthopaedic surgeon, especially as Professor Sambrook relied heavily on the recent studies which we did not find persuasive. The Juhakoski et al study concluded that only heavy manual labour proved to be a significant predictor in the development of osteoarthrosis of the hip. We observe that in its extended definition of heavy manual labour, the types of work referred to (‘eg work in the heavy engineering manufacturing, construction work, using or assembling heavy tools, goods or parts, agricultural work using machines.’) We do not consider, from his evidence, that Mr Duff’s work is of a similar nature.
45. The very recent Allen study found that activities such as walking, lifting, standing, doing heavy work while standing, squatting, and bending/twisting/reaching may increase the risk of the condition. The intensity of these factors was not clearly articulated; eg ‘walking >50% of the job’. Many of the activities were no greater than might be described as activities of daily living. The study observed a strong and consistent association with lifting tasks – especially heavy lifting. However, in our view, the evidence was not to the effect that Mr Duff undertook heavy lifting as part of his employment. In fact, his lifting was limited to manoeuvring viscera by rolling.
46. Even if we were not of this view, importantly, we observe that the recent study, at best, refers only to increased risk factors. We note what the High Court said in Amaca Pty Ltd & Ors v Ellis:
To draw an inference about causation from what was established by the epidemiological studies, it would be necessary to decide whether the particular case under consideration should be treated as conforming to the pattern described by the epidemiological studies. Absent evidence which suggests that the individual may stand apart from the ordinary, there may be sufficient reason to assume conformity, but whether or not that is so, it is important to recognise that the first step that must be taken, if an inference is to be drawn from epidemiological studies, is to relate the studies of populations to the particular case at hand. That step is not inevitable.
47. Evidence of increased risk does not equate to evidence of causation – or contribution. It must be established as more probable than not that the actual risk had eventuated. Simply asserting that a risk factor may have been a cause is not sufficient. Even if we were to accept the possibility that Mr Duff was exposed to an increased risk of osteoarthrosis of the hip as a result of his employment – which we do not – the increased risk alone is not a sound basis on which to draw an inference on the balance of probabilities that the risk significantly contributed to cause or to accelerate or aggravate his hip condition. At best, all that can be said on the present evidence is that it is possible that Mr Duff’s hip condition may have been contributed to in some degree by his work activities.
48. Therefore, the proposition that Mr Duff’s bilateral hip condition resulted from the nature and conditions of his work, or was aggravated by the nature and conditions of his work, is not made out to the reasonable satisfaction standard.
49. For that reason we find no liability against Comcare to compensate Mr Duff for his bilateral hip condition.
50. Having come to that view it was not necessary for us to consider his claim for permanent impairment, as it follows that he cannot succeed in that matter also.
DECISION
51. The decisions under review are affirmed.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member and Dr M Thorpe, Member.
Signed:..........[sgd]....................................................................
Diana Weston, AssociateDates of Hearing 19 and 20 May 2010
Date of Decision 24 June 2010
Counsel for the Applicant Mr J Mrsic
Solicitor for the Applicant Mr G Watson, T&D Kelly Solicitors
Counsel for the Respondent Mr D Richards
Solicitor for the Respondent Ms V Haddad, Dibbs Barker
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