Gregory Carlile and Linfox Australia Pty Ltd
[2014] AATA 416
•25 June 2014
[2014] AATA 416
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5640
Re
Gregory Carlile
APPLICANT
And
Linfox Australia Pty Ltd
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 25 June 2014 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Regina Perton, Member
COMPENSATION – whether condition caused or aggravated through employment – whether employment contributed to a significant degree – decision affirmed.
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14
REASONS FOR DECISION
Regina Perton, Member
25 June 2014
Gregory Carlile, who is 57 years of age, commenced employment with Linfox Australia Pty Ltd (Linfox) as an employee on 21 February 2011. He worked as a distribution and facility worker at Linfox’s warehouse. He was initially a casual employee and later became permanent. He no longer works for Linfox and is working elsewhere.
On 3 February 2011, prior to commencing employment with Linfox, Mr Carlile undertook a medical examination at Linfox’s request. The doctor examining him did not find any detectable abnormality of the abdomen or any hernia. During a further employment related medical examination on 3 May 2012, a different doctor identified that Mr Carlile was suffering from a paraumbilical hernia and a heart murmur. Mr Carlile sought advice from his general practitioner and was referred for further investigations.
On 20 August 2012 Mr Carlile lodged a claim for compensation in relation to the paraumbilical hernia. On 13 September 2012 Mr Carlile’s application for compensation was refused. On 12 November 2012, on reconsideration, a reviewable decision was made affirming the primary decision. On 13 December 2012 an application for review was lodged with the Tribunal.
Mr Carlile submits that his paraumbilical hernia resulted from heavy lifting associated with his work at Linfox. Linfox disagrees.
LEGISLATIVE BACKGROUND
Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), as it was at the relevant dates, provides:
14 Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment
...
Section 5 of the SRC Act states:
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
…
5B Definition of disease
(1) In this Act:
disease means:
(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
Section 4(1) provides definitions of ailment and aggravation:
4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Section 16(1) of the SRC Act provides:
16 Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
WAS MR CARLILE’S PARAUMBILICAL HERNIA CONTRIBUTED TO, TO A SIGNIFICANT DEGREE, BY HIS EMPLOYMENT WITH LINFOX?
Mr Carlile first started working at Linfox through an agency as a casual. In February 2011 Linfox required him to have a pre-employment medical before employing him as one of its casuals. He was advised that the results of the examination were that all was well.
Mr Carlile said that he worked as a picker and packer for 40 to 50 hours per week. He dealt with some 1200 boxes a day ranging from 500 grams to 20 kilograms stacking goods on pallets up to shoulder height. The pallets went out to various Coles outlets.
Mr Carlile had a further employment medical examination on 3 May 2012 to enable him to go from a casual to permanent employee. Dr Ashvin Arunachalam had two concerns about Mr Carlile, namely a possible heart murmur and a paraumbilical hernia. Neither problem had been previously identified. Dr Arunachalam provided a report for Mr Carlile’s treating doctor:
…
Mr Carlile was examined today in regards to a pre-employment medical.
Examination has revealed 2 issues which will need resolution prior to him working in his chosen area. I have asked him to review with you to sort these issues out.
1. Cardiac Murmur – ESM heard over aortic region. No symptoms at present. Apparently at last pre-employment medical 1 year ago, no issues. He will need an Echocardiogram and Cardiologist/CTS opinion in regards to heavy manual handling work.
2. Paraumbilical Hernia – He has a small hernia palpable. He will need an USS of his abdomen to confirm the diagnosis and management by a General Surgeon prior to working in a manual handling role. This was apparently not found on his pre-employment examination 1 year ago.
I have asked this person to consult their treating doctor for investigation and treatment as required.
Information relating to the investigation and treatment of this condition would assist us to complete our assessment. I would be grateful if you could forward details of investigation results and your management plan to this clinic to assist with this assessment.
Mr Carlile attended his general practitioner, Dr Matthew Grant, concerning both issues. Dr Grant referred him to specialists and for an ultrasound. On 15 May 2012 Dr Grant replied to the employer medical examiner:
Mr Carlile was sent to me in regards to investigation of a possible umbilical hernia. This was investigated on ultrasound.
Ultrasound showed a very small 3-4mm extending into the undersurface of the umbilical button but does not extend into the superficial structures. It is fully reducible.
Given the fact that he has [sic] it is a very small hernia that does not extend superficial, is fully reducible, and has never had any symptoms, at this stage we would not consider any surgical management at this stage. It is most likely that such a hernia will continue to forever remain asymptomatic and without progressing.
On 30 May 2012 Dr Grant prepared a referral to Mr Hai Bui:
Thank you for seeing Gregory Carlile … for opinion and management of a small reducible umbilical hernia. He is starting a new job, and they would like clarification that the hernia would not require any surgical intervention in his role, which involves some moderate lifting and exertion.
US shows a small reducible hernia around the neck of the umbilicus that doesn’t extend superficially. He has no symptoms from this.
I would appreciate your opinion on this matter. As he has no symptoms, practices safe lifting technique, and lifts approx 10 kg at a time – I do not feel it warrant intervention, but would appreciate your professional opinion.
Mr Carlile subsequently saw Mr Bui, Endoscopist, General and Laparoscopic Upper GI Surgeon. On 5 June 2012 Mr Bui wrote to Dr Arunachalam:
I was asked to see Mr Carlile in regards to his umbilical hernia. This was detected on a routine medical check up prior to his full time employment. He reports no symptom from this hernia. The nature of his work involves some heavy lifting.
Examination today revealed a well looking man and there was a small reducible umbilical hernia.
I noted the ultrasound also confirms this clinical finding. This is a small umbilical hernia, and because of the nature of his work this hernia can potentially become bigger. The surgery for him now is purely to prevent further enlargement of the hernia or development of symptoms in the future. I have advised Mr Carlile to have this hernia surgically repaired due to the nature of his labour work rather than due to any current symptoms. This can be performed laparoscopically and I have advised him to have this umbilical hernia repair once Workcover approves for the procedure in a private hospital.
…
On 20 August 2012 Mr Carlile lodged a claim for workers’ compensation for the paraumbilical hernia. He indicated there was no particular incident in relation to the identification of the problem.
On 12 September 2012 Dr Peter D Stevenson, Consultant Physician, prepared a report for CGU, Linfox’s insurer, confirming that he believed that his specialty was appropriate for the conduct of the assessment. He noted that the documentation he had been provided indicated that the rehabilitation manager had expressed concern about the unresolved cardiac condition.
…
PHYSICAL EXAMINATION:
…
He did have a just identifiable para umbilical hernia that he was somewhat overweight and if you did not know it was there you could readily miss it. He has no inguinal hernia and no femoral hernia.
I examined Mr Carlile’s heart and the heart was not enlarged, there was no evidence of heart failure, he was in sinus rhythm. He had a soft presystolic murmur across the precordium which seemed probably flow murmur.
…
SUMMARY AND ASSESSMENT:
Mr Gregory Carlile is a 55 year old picker and packer for Linfox with a very small asymptomatic paraumbilical hernia and an undiagnosed but probably benign heart murmur.
The answers to your questions are as follows:
SCHEDULE OF QUESTIONS Gregory CARLILE
Please note:
That compensation matters are decided on the probability that something is so, as opposed to the possibility that it may be so.
…
2.What were the symptoms Gregory Carlile reported to you?
Mr Carlile has no symptoms except a sense of frustration that he has not been allowed to work.
3.From what specific condition/s does Gregory Carlile currently suffer? Please provide a short description of the condition, including its known aetiology and progression? (Please include clinical signs and symptoms to support your conclusions.)
He has two conditions and they are both probably benign.
He has a small paraumbilical hernia less than 1cm in diameter mostly hidden because of obesity. This occurs at the naval so it really is an embryonic remnant which most of us are all prone. It may present any time from neonatal life to old age and is a little more common in pregnancy and obesity. I have looked for any evidence in the medical literature that it is more common in heavy occupations and there appears to be none. Anecdotally it is commonly seen in neonates who have never lifted anything in their short lives and in very unfit people who do not lift anything much.
He also has an incidental cardiac murmur to which I have listened. It probably is a benign flow murmur but it obviously needs to be appraised by a cardiologist. He needs to have an echocardiogram. I would expect the outcome would be reassurance, carry on with normal life and be reviewed in 12 months. If something more significant is identified medical restrictions could be put on a rational basis but I think it is unlikely that it will be judged significant.
4.On the balance of probabilities as distinct from possibilities, is the condition currently suffered by Gregory Carlile related to;
a.His employment with Linfox Australia Pty Ltd, in particular the effects of the claimed injury reported to be sustained on 08/05/2012;
b.b. His workplace duties at Linfox Australia Pty Ltd in which he is employed as a Picker/Packer;
c.c. A pre-existing, congenital, constitutional or underlying condition,
d.d. The natural progression of any underlying condition; and/or
e.e. An aggravation, acceleration or recurrence of a pre-existing condition, and if so have the effects of the aggravation, acceleration or recurrence ceased. If not yet ceased, when do you consider.
With regard to the umbilical hernia one has to say on balance of probabilities that it is not. Almost all the medical literature on occupation and hernias concentrate on inguinal hernias which can have some occupational relevance in heavy lifting. There just are not good studies about umbilical hernias because most clinicians never really thought to regard them as an occupational problem. There is a theoretical but very remote risk of strangulation. Often in the well intentioned worker like Mr Carlile common sense suggests the pragmatic solution of getting it fixed surgically as soon as possible and restoring the productive worker to the workforce. There is much to be said for that here but it is a non-medical decision. There is a congenital and constitutional disposition. It is not usually associated with a tendency to hernias elsewhere.
5.5. Can you please advise whether there is any relationship between Gregory Carlile’s current symptoms and his employment with Linfox Australia Pty Ltd? Please provide detail.
a.Could this be considered a natural progression of underlying degenerative conditions? Please provide detail.
The main relationship is that it was picked up there. In the literature on inguinal hernias there is modest evidence that very heavy occupations increase the incidence of inguinal hernias. Obesity and pregnancy seem the main factors in umbilical hernias but mostly congenital disposition.
6. In your opinion, do you consider that Gregory Carlile has a predisposition to developing further hernia/s? Please provide detail to your response.
b.a. If so, what should be done to eliminate further hernia/s is occurring in the future?
No, umbilical hernias are not particularly associated with the risk of hernias elsewhere and he does not have any hernias elsewhere that I can find, so he has no more risk of developing inguinal hernias than other workers.
Responding to question seven from the insurer in the referral asking him to comment about whether Mr Bui’s report of 5 June 2012 (see above) in which he recommended an operation, Dr Stevenson commented:
It is useful pragmatic advice. If there were not concerns about Mr Carlile’s lifting and he was doing a sedentary job then one would probably just reassure him about a hernia of this size. There is good evidence from the literature on inguinal hernias that it is perfectly safe to wait, not operate on them, go on with life and deal with the very rare one that comes into emergency where it is an emergency. That probably holds for umbilical hernias but in a moderately heavy lifting environment issues arise about duty of care and a remote possibility of incarceration and litigation.
Responding to question eight in the referral as to whether Mr Carlile currently had the capacity to engage in work at the same level at which he was working immediately prior to the injury, Dr Stevenson responded:
He can certainly do the work lifting 7.5kg and he could probably do more but one has to put in some margin of error. There is no good scientific evidence on this. There is very much to be said for eliminating the hernia and letting him work unrestricted.
In relation to questions nine and 10 in his report in which he was asked for his prognosis of the claimed injury, including any recommended treatment and/or medication including the surgery, Dr Stevenson stated:
It probably will do him little harm if ignored but in view of the slight risk of enlargement and incarceration it is better fixed, which resolves the issue entirely.
…
Irrespective of liability the treatment plan recommended by Mr Bui is sensible. Heavy lifting may occasion an enlargement.
On 13 September 2012, Linfox denied liability for the paraumbilical hernia.
On 24 September 2012, the lawyers now acting for Mr Carlile lodged an application for reconsideration. This was refused on 12 November 2012.
On 26 September 2012, Mr Bui prepared the following letter addressed To Whom It May Concern:
I agreed for Mr Carlile to lift up to 12 kg in weight occasionally throughout his working shift. However I have explained to him that this could potentially aggravate his umbilical hernia. Please do not hesitate to contact me should you require further clarification.
On 11 October 2012, Mr Bui wrote to Dr Grant:
Just a quick note to inform you that Mr Carlile now wishes to have his umbilical hernia repair in the public system as Workcover does not want to cover his surgery in the private system. As I have mentioned in my earlier correspondence, the decision for him to have this procedure is to prevent the worsening of the condition in the future as his work requires constant heavy lifting. I have advised him to resume his normal activities while waiting for surgery. There should be no limitations in regards to how heavy he can lift. I have put his name on my public waiting list at the Werribee Mercy Hospital for a laparoscopic repair of this umbilical hernia.
On 31 October 2012, Mr Bui issued another letter addressed To Whom It May Concern:
Mr Carlile was last consulted by myself on 12.10.2012. I agreed for Mr Carlile to resume his normal work activities including any lifting as required. The risk of the hernia being aggravated by his work activities, if any, is the same as the activities he engages in at home….
Mr Carlile told the Tribunal that he was on the public waiting list for some months for the surgery and decided not to go ahead with the operation. He has not had a hernia operation to date.
Mr Kenneth Myers, General Surgeon, examined Mr Carlile at the request of his solicitors and prepared a report dated 22 July 2013:
…
Description of injuries
His only disability that I am aware of is an asymptomatic paraumbilical hernia which was diagnosed during a medical examination.
He denies any other significant past work-related, motor vehicle, domestic or sporting injuries.
…
Symptoms Relating to Injuries
He states that he has never had any symptoms from this hernia.
Effects on Daily Living Activities
It is not interfering with any of his activities. His only physical activity is fishing and this is unrestricted. He has no other strenuous sports activities.
EXAMINATION
He is a tall, well-built man.
Palpation through the umbilicus revealed a palpable neck of a small hernia less than 1 cm in diameter.
COMMENTS ON RELEVANT MEDICAL REPORTS
…
It is stated that Dr Stevenson claimed on the balance of probabilities the umbilical hernia was not work-related and I would disagree with this opinion.
There seems to be some consideration that an umbilical hernia is different to an inguinal hernia in relation to the strains placed upon the region in the course of lifting activities at work and this is not the case.
Accordingly, I disagree with an opinion that this is not a compensable injury.
…
OPINION
In answer to your specific headings:
1. The clinical history;
Accidental discovery of an umbilical or paraumbilical hernia with a small neck.
2. Your diagnosis of Mr Carlile’s present medical condition;
Umbilical or paraumbilical hernia of small size with no contents.
3. Whether, the balance of probabilities, our client sustained an injury in the course of employment. Under the Act, an injury includes an aggravation, recurrence or acceleration of a pre-existing condition;
The hernia results from straining in relation to work activities that require heavy lifting and as such is compensable through employment with Linfox.
4. Whether our client’s employment was a significant contributing factor to the onset of any disease or condition you have diagnosed;
His employment has been the contributing factor to the development of the hernia.
5. Whether, on the balance of probabilities, Mr Carlile’s employment was a significant contributing factor to the aggravation or acceleration of any underlying or pre-existing disease;
There is no evidence that he had a pre-existing hernia.
6. Whether Mr Carlile presently continues to suffer from the condition or disease which arose out of or in the course of employment, or which was significantly contributed to by his employment with Linfox Australia;
The persistence of the hernia clearly results from the straining activities involved in his work and particularly work with Linfox.
7. Whether Mr Carlile reasonably requires medical treatment in relation to the condition. If so, please describe the nature, type and frequency of such treatment;
There is absolutely no indication for any form of surgical treatment unless serial examinations reveal that the hernia is enlarging or unless it causes pain in the future. In the meantime, it can well be ignored.
8. Your estimate of our client’s present and future capacity for employment and whether our client is fit for the full range of normal employment duties. If not, please indicate the restrictions for former employment which apply;
Your client has and always has had a full capacity for employment including overtime and any financial loss that has resulted from a contrary decision in the past should be compensable.
9. Your prognosis for Mr Carlile’s condition.
I would be extremely surprised if the umbilical or paraumbilical hernia becomes any larger or causes any future symptoms.
…
In oral evidence, Dr Stevenson said that he had to look and feel for the paraumbilical hernia, which he knew was there. He stated that we all have a deficiency where the umbilical cord was. The hernia may be present at birth or through progressive muscle weakness.
Dr Stevenson said that he had done a search of the medical literature and provided three articles to the Tribunal. He said that not much had been written about paraumbilical hernias. The usual topic was inguinal hernias and whether heavy lifting was the cause of their development and the emergence of symptoms. The case studies all involved hernias with symptoms. Dr Stevenson said that the evidence is not strong that there is a relationship with heavy lifting with any hernia.
Under cross-examination, Dr Stevenson said that the studies indicated that there was little difference in development of symptomatic hernias between sedentary workers and heavy lifters. Dr Stevenson said that there were no large studies looking at paraumbilical hernias. Asked about the difference between his view and that of Dr Myers, Dr Stevenson said that he would have expected something in the literature if there was no difference between the impact of inguinal hernias on work and paraumbilical hernias.
In relation to the imposition of weight restrictions on Mr Carlile, Dr Stevenson said that it was a pragmatic solution due to uncertainties. He said that Mr Bui’s suggestion it be operated on was fine. However there was nothing to indicate that there was a relationship between the development of the hernia and heavy lifting.
Mr Myers, in oral evidence, when asked about the relationship between Mr Carlile’s paraumbilical hernia and his employment, stated that as with most abdominal hernias, straining could lead to its development. Asked about the difference between his assessment and that of Dr Stevenson who had stated that there was no evidence in the medical literature of the relationship between paraumbilical hernias and employment, Mr Myers stated that there are lots of relationships in medicine for which we do not have a statistical basis. He maintained his stance that in terms of workplace injuries, there is no difference between inguinal and paraumbilical hernias.
Under cross-examination, Mr Myers conceded that he has not looked at the medical literature on hernias since he finished his studies. He said that he had not reviewed the literature which Dr Stevenson had examined. Mr Myers said that he maintained the view, on the balance of probabilities, that Mr Carlile’s employment had been the contributing factor to the development of the hernia. Mr Myers said that he does not know if the hernia worsened as a result of Mr Carlile’s employment, nor does he know how long it was present.
Mr Myers was reminded of the comment in his report that no surgery was needed at this time unless the hernia got bigger or became painful. Mr Myers said that while he believed the hernia was work-related, the damage had been done and that on the balance of probabilities, it would probably not get worse.
In his closing submissions, Mr Seit, counsel for Mr Carlile, submitted that because the paraumbilical hernia is asymptomatic, it would be difficult to establish that it arose out of or in the course of his employment as a frank injury. Mr Seit submitted that the paraumbilical hernia should be considered as a disease within the meaning of section 5B of the Act and therefore an injury within the meaning of section 5A of the Act.
Mr Seit submitted that the imposition of restrictions on lifting during the period immediately following the diagnosis of the hernia resulted in an incapacity for work and therefore liability for compensation.
Mr Clark for Linfox submitted that the evidence pointed to temporary restrictions being due primarily to the cardiovascular concerns as well as concern about the hernia. He submitted that while there was an initial possibility that the hernia was work related and hence the work limitations imposed were for both conditions, there was no evidence that it was a workplace injury.
Having heard and read the evidence in this matter, the Tribunal is unable to be satisfied that the paraumbilical hernia only developed after Mr Carlile commenced working at Linfox. While it was overlooked in the first Linfox examination and identified in the second by a different doctor, that does not mean that it was not there at the time of the first examination or for many years or a lifetime. Dr Grant, Mr Carlile’s general practitioner, was also unaware of its existence until Dr Arunachalam identified it during his examination. That is not surprising as Mr Carlile has never suffered any symptoms and was unaware of its existence prior to Dr Arunachalam’s diagnosis. Its location may well also have contributed to the lack of awareness of its existence.
Dr Stevenson provided a comprehensive review of hernias, their origins and the existing literature about their relationship with work of the type undertaken by Mr Carlile. Mr Myers conceded that he had not done so. Mr Myers stated that the paraumbilical hernia was related to strain in the workplace without providing a basis for his assertion.
The Tribunal prefers Dr Stevenson’s evidence over that of Dr Myers in this instance because of the more profound investigation and the literature search which reinforced the view that paraumbilical hernias are unlikely to be caused, or aggravated by, workplace exertion.
There is no evidence that the paraumbilical hernia, of which Mr Carlile was unaware as it caused him no incapacity, developed during the period he worked for Linfox as a casual prior to the medical examination for a permanent full-time position. There is also no evidence that it caused any incapacity notwithstanding the prudent action of the employer to impose restrictions soon after its identification while there was medical investigation of his possible heart condition and whether the hernia was employment related.
Mr Bui was prepared to operate because of the possibility, rather than probability, of the hernia causing concern in the future. He indicated that Mr Carlile could continue with his employment and put that in writing for his patient and the patient’s employer.
The Tribunal is not satisfied that the paraumbilical hernia’s development was related to Mr Carlile’s employment with Linfox. It is therefore not satisfied that compensation is warranted for lower earnings during the short period that Mr Carlile was on light duties, nor to pay for any possible future operation to remove the paraumbilical hernia.
The Tribunal is therefore not satisfied that Mr Carlile meets section 5A of the Act and is therefore not entitled to compensation under the relevant provisions of the Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 44 (forty‑four) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member [sgd]........................................................................
Associate
Dated 25 June 2014
Dates of hearing 10 & 11 February 2014 Counsel for the Applicant Mr R Seit Solicitors for the Applicant Maurice Blackburn Counsel for the Respondent Mr C Clark Solicitors for the Respondent Sparke Helmore
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