Isbister and Australian Postal Corporation
[2006] AATA 931
•31 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 931
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1407
DIVISION ) Re DAVID ISBISTER Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member Ms Hunt and Member Dr Thorpe Date 31 October 2006
Place Sydney
Decision The decision under review is set aside. In substitution the tribunal finds that the respondent is, pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988, liable for compensation to the applicant, on and from the date of his injury sustained during the course of his employment.
We remit the claim to the respondent under section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 for determination of his entitlements under sections 16 and 19 of the Safety Rehabilitation and Compensation Act for his reasonable medical expenses and for any incapacity payments.
Costs may be awarded in this matter pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988 and pursuant to the tribunal’s Practice Direction.
[SGD]
Ms Robin Hunt
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – benefits and entitlements - applicant suffering from inguinal hernia – material contribution by the applicant’s employment – finding for the applicant under s 14 – remittal.
Safety Rehabilitation and Compensation Act 1988 ss 4, 6, 14
Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36
Westgate v Australian Telecommunications Commission (1987) 17 FCR 235
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Commonwealth Banking Corporation v O’Neill (1988) 15 ALD 609Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
REASONS FOR DECISION
SUMMARY
1. Mr David Isbister, the applicant, suffered an indirect inguinal hernia in his right groin which he first noticed on 1 August 2005. Mr Isbister lodged a compensation claim with his employer the Australia Postal Corporation, the respondent, which was rejected. Mr Isbister requested a reconsideration of this decision and a delegate for the Australia Postal Corporation confirmed the corporation did not accept liability. After careful consideration of the evidence the tribunal has decided that Mr Isbister has a valid claim and that the respondent should accept liability under s 14 of the Safety Rehabilitation and Compensation Act 1988. We remit the matter under s 43(1)(ii) of the Administrative Appeals Tribunal Act 1975 for the respondent’s reconsideration of Mr Isbister’s claim to determine, in accordance with our directions, what entitlements Mr Isbister has under s 16 for his reasonable medical expenses and under s 19 for incapacity payments. Our reasons are set out below.
BACKGROUND
2. Mr Isbister commenced work with the Australia Postal Corporation (Australia Post) on 8 December 2004. Prior to commencing duties Mr Isbister underwent a pre-employment medical examination with Dr Edward Lurie. On the day of the examination, that is, on 17 November 2004, Dr Lurie advised:
This person meets the relevant Australia Post medical standards for employment in the above designation and is able to safely perform the duties of this designation without risk to self or others. (T3).
3. On 3 August 2005 Mr Isbister lodged an incident report with Australia Post. The report described an incident that occurred two days previously at the depot box on Beach Street. In the report Mr Isbister stated:
It was a heavy mail bag. Did not have time to check weight of [bag]] depot, burning sensation for last two months then on Monday after loading backpack and continuing delivery noticed sharpest pain.
4. In the incident report Mr Isbister described the nature of his injury as a “lump on right side of groin (hernia type)”. The next day on 4 August Mr Isbister lodged a compensation claim with Australia Post in respect of the injury.
5. On 2 September 2005 Australia Post denied liability for Mr Isbister’s hernia under section 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act). On 26 September 2005 Mr Isbister requested a reconsideration of that decision. In support of his request he submitted further evidence, namely a medical certificate from Dr O’Young (T18).
6. On 28 September 2005 a reconsideration officer, a delegate of Australia Post, affirmed the decision of 2 September 2005. In the decision the reconsideration officer referred to the medical evidence of Dr Burke and stated:
Dr Burke says that he would not accept [the] suggestion that the lifting of a 16kg backpack might have caused or aggravated a right inguinal hernia.
The document you provided from the Mayo Clinic mentions that standing for long periods or doing heavy physical labour increases the risk of developing an inguinal hernia. I note, however, that you have only worked at Australia Post for less than 8 months and that I do not consider the work of a Delivery Officer to be “heavy physical labour”.
ISSUES
7. The issues of this matter are:
(a)Whether Mr Isbister’s indirect right inguinal hernia arose out of or in the course of his employment with Australia Post;
(b)Whether Mr Isbister’s indirect right inguinal hernia was contributed to, to a material degree, by work duties with Australia Post; and
(c)Whether Mr Isbister is entitled to any compensation payments pursuant to the benefits provision of the Safety, Rehabilitation and Compensation Act 1988, and if so, what payments Mr Isbister is entitled to.
consideration
8. Mr Isbister gave oral evidence that he commenced work with Australia Post in 2004 as a postal delivery officer. Mr Isbister told the tribunal that he carried out his duties on foot and not with the aide of a motorbike. Mr Isbister described his duties as including the sorting and delivery of mail. Mr Isbister told the tribunal that he delivered mail from various depot points around Coggee in Sydney’s eastern suburbs.
9. Mr Isbister told the tribunal that he delivered mail that he carried in a backpack that was approximately a metre tall and “50 to 60 to 70cm wide”. Mr Isbister explained to the tribunal that the backpack was very big, the type that a backpacker might carry. He described the backpack as having various pockets and compartments in which mail was stored. He said that the weight of the backpack would vary, and that he couldn’t say how heavy the backpack would be when empty. He said that when it was full its weight would also vary depending on how much mail was in it. He told the tribunal that under the Occupational Health and Safety Guidelines the maximum weight the backpack could be packed to was 16kgs. Mr Isbister told the tribunal that he never weighed the backpack because of time constraints. He told the tribunal that he was unaware whether supervisors or other Australia Post personnel weighed the bags.
10. In giving evidence Mr Isbister described how he delivered the mail from the backpack. He explained:
when it was taken off the V sort [the Australia Post mail sorting machine] it would be put into bundles the width of your hand that you find comfortable to hold in your hand, would be tied up with red rubber bands and it would be then numbered. [This would then be put in the backpack] So [you] would take out number 1 which would be loaded on the top of the backpack and then you would hold it in your hand and you would deliver the mail with your right hand either to the businesses or to the letterboxes
11. Mr Isbister told the tribunal that the backpack would only be empty once the next delivery point was reached. At this point another bag, pre-delivered by a contractor, would be waiting in a green depot box. This bag, which Mr Isbister described as being a nylon bag similar in appearance to a laundry bag, would be filled with mail packed and numbered and ready for delivery. Mr Isbister told the tribunal:
You take the depot bag out and you would put it on the ground. You would take the mail out which had been loaded [into bundles and into the depot bag] in at the delivery facility. Number 8, if for instance, on the top which would then be loaded into the backpack on the bottom and then would be taken up. So all the bundles would be numbered, so you would grab number 1 on the top, number 2…
12. Mr Isbister told the tribunal that on a Monday there would be 6 depot points and that he would have to re-fill his backpack, which would involve putting down and lifting the backpack, eight times.
13. Mr Isbister told the tribunal that he could not recall ever having suffered any groin discomfort. He said that two months prior to the hernia presenting he’d felt the sensation of warm water being poured over his groin. He said that:
Prior to the diagnosis - two weeks prior to the diagnosis there was a noticeable sharp pain one day on the beach, but prior to that it was a gradual increase, it was never a debilitating pain or excruciating pain, but it was noticeable, it was a discomfort.
14. Mr Isbister told the tribunal that on August 1 he was walking on his beat, along Beach Street when he experienced a significant increase in pain in his groin. He said:
I was about three quarters of the way through my round, I was on Beach Street in Coogee, and there was the - the pain was, I wouldn't say intense, I wouldn't say debilitating, but it was noticeably increased on my way to the depot box at 45 Beach Street, which was the second-last depot box on my round.
15. The next day, Mr Isbister noticed a lump on his right groin roughly the size of a grape. He then went to see his GP, Dr Stuart Summers, and was diagnosed with a hernia.
MEDICAL EVIDENCE
16. The respondent’s written reasons for the decision show that the delegate relied heavily on the report of Dr Burke, dated 26 August 2005, in reaching the decision to refuse liability for Mr Isbister’s injury. We reviewed the medical evidence taken from Dr Burke and from other doctors who gave oral evidence at the hearing as well as written reports furnished to us. A summary of the medical evidence follows.
DR O’YOUNG
17. Dr O’Young provided a letter, dated 9 September 2005, certifying that he had conducted two medical examinations on Mr Isbister. Dr O’Young stated that on both occasions, that is, 24 August 1999 and 2 August 2001, there was no evidence of inguinal or other hernias. (T18, p54).
DR STUART S. SUMMERS
18. Dr Summers, Mr Isbister’s treating doctor, provided a report dated 8 June 2006. In this report Dr Summer related that Mr Isbister attended his surgery on 2 August 2005. At this consultation Mr Isbister:
Gave a history of an ache in (R) Groin for 2 weeks and this commenced during his work as a postman which includes quite heavy lifting, & carrying a backpack.
19. Dr Summers reported that examination revealed a hernia. He advised Mr Isbister not to engage in heavy lifting and referred him to Professor Lord for repair of the hernia.
20. At the conclusion of his report Dr Summers opined that:
Given the nature of his work as a postman it is quite possible that the heavy lifting required could have caused a contribution to the hernia.
PROFESSOR REGINALD V.N. LORD
21. Professor Reginald V.N. Lord, Associate Professor of Surgery, Conjoint at the University of New South Wales in upper gastrointestinal medicine and general surgeon, gave oral evidence to the tribunal and provided two reports dated 16 August 2005 and 30 June 2006.
22. In his report of 30 June Professor Lord stated:
Regarding the relationship between the development of hernia and Mr Isbister’s occupation, it is likely that although Mr Isbister may have had a congenital weakness at the deep inguinal ring and thus a predisposition to the development of hernia during his life time, the development of this symptomatic hernia in his early 40s is related to his occupation as a postman and the requirement of that occupation to carry a heavy load.
23. In oral evidence Professor Lord confirmed this opinion, explaining that Mr Isbister’s occupation as a postman would be connected to the development of his hernia as it required him to carry, lift and put down a heavy backpack. Professor Lord stated that this activity:
would have been causing raised intra-abdominal pressure and by that means weakness, progressive weakness of the posterior wall of the inguinal canal, which is the area through which a defect that is a hernia develops.
24. In explaining the relationship between Mr Isbister’s hernia and his position with Australia Post, Professor Lord stated that there are two types of inguinal hernia; childhood and adult ones. He set out that in adult hernias it is thought that patients may have been born with some weakness of the posterior wall. He said:
In the adult hernias there is no doubt that there is a congenital defect. Less clear, because we're not able to go back and examine the inguinal region at childhood in adults who develop a hernia decades later, so we can't be certain of this, but it is nevertheless thought that adults who develop hernia may have been born with some weakness of the posterior wall, the back wall there through which that hernia develops. So what I'm stating here is that although Mr Isbister may have been predisposed to the development of hernia, the fact that he did develop the hernia at this relatively young age and soon after starting this job which involves heavy lifting and raised intra-abdominal pressure, suggested to me that it is likely that there was an association between his occupation and the development of the hernia.
25. Professor Lord disagreed with the proposition that picking up a 16 kilogram backpack would not raise intra-abdominal pressure. Rather, he suggested that picking up and putting down such a back pack would be the times at which intra-abdominal pressure would be most raised. He explained that with such a backpack :
even when you’re walking with it on your back, it’s still that raised intra-abdominal pressure.
26. In cross examination he explained that although pressure would be borne on the back when lifting such a backpack, it would simultaneously place strain on the intra-abdominal region.
27. In giving evidence to the tribunal Professor Lord stated that he was unaware of whether or not there was any study on whether the use of backpacks had been associated with the onset of hernia. He also told the tribunal that he based his opinion that Mr Isbister’s hernia was a work-related injury on the fact that “the other causes of hernia were not present”. To this effect, Professor Lord noted that Mr Isbister was slim, young and had no problem passing urine or stool.
28. Professor Lord further told the tribunal that he believed it was likely that on the day that Mr Isbister experienced the acute sharp pain that there was some sort of change in his hernia. He stated that it was impossible to say with retrospect whether there was a patho physiological change, but that there was likely to have been some change and that change was probably a significant enlargement of the hernia.
29. Professor Lord told the tribunal that he believed that it had been necessary for Mr Isbister to undergo surgery to treat his hernia. He said that he felt it was reasonable that Mr Isbister be put on light duties.
DR GRIFFITH
30. Dr Griffith, a consultant surgeon, was of the opinion that Mr Isbister’s hernia was work related. He gave oral evidence to the tribunal and provided three reports, dated 27th January 2006, 17th March 2006 and 8th September 2006.
31. In his report of 27th January Dr Griffith noted that the Australia Post medical officer, Dr Lurie, had specifically checked Mr Isbister’s inguinal regions when conducting a pre-employment medical check on him. In his report Dr Griffith pointed out that Dr Lurie had failed to disclose a hernia.
32. In the report of 27th January Dr Griffith assessed the relationship between Mr Isbister’s hernia and his employment thus:
There was no actual injury – merely an onset of pain which led to him examining his inguinal region and discovering a lump, which has enlarged since, and which continues to do so. The condition is basically one of constitutional origin, with pre-disposition due to the failure of complete obliteration of the processus vaginalis present in utero which allows descent of the testicles. In such individuals repeated increase of intra-abdominal pressure acts as a hydraulic wedge, which when initiated results in progressive enlargement and development of a hernia in a sequence of events so clearly exemplified by [Mr Isbister].
[Mr Isbister] states that he became aware of his symptoms at work…. However, it is a matter of legal interpretation in terms of the Act as to whether a condition such as a hernia which first became evident during activity in the workplace fulfils the criteria for acceptance of a workplace compensation claim. Had he not been at work, he would have developed a hernia at some time. This is not an area on which it is appropriate for me to comment, but requires a legal interpretation of the Act.
33. In his report of 17th March 2006 Dr Griffith clarified his report of 27th January, stating:
I did not mean to imply that [Mr Isbister’s] injury was not work related, or not due to the nature and conditions of employment.
I meant that there is a theoretical likelihood that a predisposing patent processus vaginalis along which a hernia tracks may develop in to a hernia at any time. It is more likely in later life, as the abdominal musculature loses its tone and strength as a natural manifestation of age. It is less likely in the absence of predisposing factors, such as effort induced increase in the intra-abdominal pressure, in a forty two year old otherwise fit man.
34. In his report of 8 September 2006 Dr Griffith opined that Mr Isbister had underwent a patho physiological change when he felt a sharp pain whilst walking up the hill and carrying a backpack on 2 August 2005. Dr Griffith stated that it was likely that these symptoms:
represented the developing hernial sac commencing to descend through the internal inguinal ring, producing a typical illo-inguinal nerve neuralgia and dysaesthesia as it impacted the nerve on the adjacent wall of the canal, and later, on the crus of the inguinal ring.
35. In giving evidence to the tribunal Dr Griffith was presented with an amended history. He was told that rather than walking up a hill at the time he experienced the sharp pain, Mr Isbister was in fact walking on a flat surface. When asked if this caused him to re-assess his opinion, Dr Griffith stated that, on balance, he didn’t believe that this was necessary. He explained:
A hernia develops - when it develops it's quite fortuitous, just a product of a predisposition and when the symptoms develop and, as I've mentioned, not necessarily associated with a lump in the early stages, merely with pressure on the nerve and that's almost consistent with any activity. Certainly, walking is enough to produce some raised intra-abdominal pressure. In fact, any activity other than lying supine will do so, though of course to a variable extent. I don't believe that's critical in the fact that it is likely that - or consistent with the first symptoms being manifested in a - performing not particularly strenuous activity.
36. In his report of 8th September Dr Griffith stated that to his mind, somebody carrying or lifting a backpack weighing up to 16kgs would be likely to have an increase in intra-abdominal pressure. Dr Griffith explained:
If one considers the basic physiology involved in carrying heavy objects on a repeated basis, which abdominal muscle contraction required to stabilise the vertebral column when doing so. Such contraction involves increase in abdominal pressure.
37. In giving evidence to the tribunal Dr Griffith expanded on this explaining that the abdominal muscles are critically important to the stability of the spine when a person carries weight. He said that the intra-abdominal pressure created when carrying weight varied, with the heavier the lift, the greater the pressure. Dr Griffith stated:
For instance, a sneeze can develop pressure of perhaps 30 or 40 pounds a square inch instantaneously. That doesn’t equate to carrying a 16-kilo backpack. That’s repeated lifting and just carrying it would certainly constitute episodic and chronic increase in intra-abdominal pressure.
38. Dr Griffith stated that in an individual not suffering from a predisposition to a hernia, this episodic and chronic increase in intra-abdominal pressure would be of no real consequence. In an individual so predisposed, however, he stated that it would be enough to “if not initiate, then certainly potentiate” a hernia.
39. To this extent, Dr Griffith disagreed with Dr Burke’s opinion, contained in that Dr’s report of 26 August 2005, that:
the lifting strain of backpack is taken on the back and it transmits little or no pressure to the abdominal muscle.
To this Dr Griffith told the tribunal:
I don’t believe that’s true, because lifting anything, a backpack or any other object, even standing up is associated with increasing abdominal pressure. As a practical experiment if you care to place your hand on your abdominal wall and just bend forwards as though you were going to pick something up, you can feel the muscles tighten. Now, that raises intra-abdominal pressure, admittedly to a small degree. But if one is lifting a backpack from the ground, leaning forward, putting ones hands – arms through the straps in order to get in position then standing and walking with it, obviously that’s associated with constant contraction of the abdominal musculature, admittedly to a variable degree, but certainly it’s going to raise intra-abdominal pressure…
40. In giving evidence Dr Griffith stated that he also disagreed with Dr Burke’s statement, contained in Dr Burke’s report of 26 August 2005, that if lifting strain was to develop or aggravate a hernia, it would likely be associated with contemporaneous pain and possibly swelling. In his report of 26 August 2006 under the heading “ATTRIBUTABILITY” Dr Burke wrote:
An indirect inguinal hernia develops along the line of weakness or in a primordial sac associated with testicular development as a foetus…It can be aggravated, accelerated or exacerbated by particular strains, particularly lifting strains. If such a strain causes development or aggravation of a hernia, it is likely to be associated with contemporaneous pain and possibly swelling. However, Mr Isbister indicates no such association with his work duties. I note that the pain itself developed gradually over a two month period. I note that the swelling was first noticed when he woke up one morning. I would not accept his suggestion that the lifting of a 16kg backpack might have caused or aggravated a right inguinal hernia. (T113 at p 32)
41. In reply Dr Griffith told the tribunal that contemporaneous pain and swelling is a regular feature of a hernia, although he had obtained a different history from that which seemed to have been obtained by Dr Burke. Dr Griffith said:
I understand that there are some symptoms which became evident and were drawn to his [Mr Isbister’s] attention in the course of his activities in the workplace, rather than independently of them. The fact that the pain developed gradually over a several month period…is consistent with that…[and] does not negate, and that is entirely consistent with the development of a hernia.
42. On this point Dr Griffith also commented that:
It must be remembered that this [the hernia] is not something that developed instantaneously like a laceration or a fractured bone. It’s a progress response to a predisposed individual with repeated increases in intra-abdominal pressure and muscular exertion.
43. In giving evidence Dr Griffith was asked if somebody doesn’t feel contemporaneous pain with the lifting of an object, whether or not that person has aggravated their hernia as a result of lifting the object. Dr Griffith responded to this proposition stating that “I don’t think the two are synonymous”. Dr Griffith told the tribunal that such a proposition does not reflect an accurate scenario for the proper physiology of developing hernias. He told the tribunal:
insofar as the pain is contemporaneous, it is not contemporaneous at the presentation of a lump, it is contemporaneous if one uses a case for a much longer time span in which the hernia is developing through a process of discomfort, ilioinguinal neuralgia and ultimately develops as a lump, which is noticed at a particular point in time and has just been developing over a protracted period before that.
DR PETER JOHN BURKE
44. Dr Burke, a surgeon and medico-legal consultant, was of the opinion that Mr Isbister’s hernia was not work related. Dr Burke gave oral evidence and provided a report dated 26th August 2005. In his report, under the heading “ATTRIBUTABILITY” Dr Burke stated that:
An indirect inguinal hernia develops along the line of weakness or in a primordial sac associated with testicular development as a foetus. It sometimes presents at birth and sometimes at a late age. It can be aggravated, accelerated or exacerbated by particular strains, particularly lifting strains. If such a strain causes development or aggravation of a hernia, it is likely to be associated with contemporaneous pain and possibly swelling.
45. Dr Burke did not, however, consider that Mr Isbister’s hernia was associated with his lifting work for Australia Post. In his report Dr Burke commented:
Mr Isbister indicates no such [pain] association with his work duties. I note that the pain itself developed gradually over a two month period. I note that the swelling was first noticed when he woke up one morning. I would not accept his suggestion that the lifting of a 16kg backpack might have caused or aggravated a right inguinal hernia.
46. With regards to Mr Isbister’s lifting of the backpack for work, Dr Burke stated:
I would point out that the lifting strain of a backpack is taken on the back and that it transmits little or no pressure to the abdominal musculature. Its use is therefore unlikely to be associated with the development of a hernia. What is more, Mr Isbister presents as a generally fit man, who could easily handle weights of 16kgs. It is unlikely that such work activities would have caused the development of a hernia. On the other hand, when a hernia has developed and is already present, otherwise normal activities are likely to aggravate symptoms.
47. In his report Dr Burke advised that there was no indication that Mr Isbister’s work for Australia post contributed, aggravated, exacerbated or accelerated the development of his right inguinal hernia.
48. In giving oral evidence to the tribunal Dr Burke stood by the opinions expressed in his report of 26 August 2005.
49. In examination in chief Dr Burke was presented with an amended patient history. This set out that rather than noticing a sharp pain on 2 August 2005, Mr Isbister in fact noticed it on 1 August of that year. Dr Burke was told that Mr Isbister intermittently experienced a sharp pain in the two week period prior to 1 August. Dr Burke was told that each time this occurred, including on 1 August, that the sharp pain would subside and be replaced by a funny warming sensation, a pain that Mr Isbister described as being like warm water being poured over his groin. In the history Dr Burke had obtained, Mr Isibister had experienced intermittent pain for a period of two months.
50. Dr Burke said that the amendments to the patient history were a slight change to the history that he’d taken. He stated that:
Of itself it doesn't make any particular difference to the - my opinion about the matter.
51. In giving evidence Dr Burke was asked to respond to the proposition, put forth in oral evidence by Dr Griffith, that Mr Isibister’s position with Australia Post contributed to the development of his hernia because his duties included lifting loads of up to 16kgs at a time throughout the day. To this Dr Burke replied:
My assessment of… [Mr Isbister] was that he was a reasonably strongly built person who would not have particular difficulty in lifting a 16 kilogram weight and I understand slinging that onto his back and walking round with that as a backpack.
52. Dr Burke went on to say that if there was any association between Mr Isbister’s work duties and the development of his hernia:
It would have been at the time he lifted the backpack to put it onto his back rather than walking around and delivering mail in the manner that he described…
53. When asked about the view, expressed by both Professor Lord and Dr Griffiths, that it is not unusual for people with hernias not to have contemporaneous pain at the time of lifting, Dr Burke stated that he agreed that this was not unusual. He said that the opinion expressed in his report, that is, that the lifting strains associated with hernia are likely to be associated with contemporaneous pain and swelling, was not inconsistent with the view expressed by both Professor Lord and Dr Griffith.
54. In cross-examination Dr Burke referred to page two of his report and reiterated the patient history Mr Isbister had given to him and detailed therein; that is, that Mr Isibister became aware of an uncomfortable burning sensation in the right groin area for a period of two months. Mr Isbister took little notice of this sensation and continued working. Dr Burke told the tribunal:
Now, that is important, if he was concerned that his work was causing it [it] is unlikely that he would have taken little notice of it, it is unlikely that he would have continued his normal work without doing something about it and maybe he developed a pain, a particularly sharp pain on a particular day - I understand the date is in some dispute but that makes no little difference, and then he told that he woke up the following morning and noticed a lump in his groin. Now, that is a fairly typical history of the gradual development of an otherwise unexpected hernia over a period of time and it does not indicate [implicate?] his work in the development of that hernia. Now, as I have said I think a little while ago, once a hernia is developed almost anything - any sort of straining movement can aggravate or cause symptoms; that is typical of the independent development of a hernia in the right groin following which work and various other activities could have aggravated it since.
55. Dr Burke’s report did not address the repetitive lifting of the backpack that was part of Mr Isbister’s routine in order to carry out his duties. Mr Isbister’s uncontested evidence was that he had to remove his backpack, refill it and lift it back on to his back approximately 8 times on his beat. This was because the mail was stored at 6 depot boxes at points on his route as well as at the initial starting point. Mr Isbister had to check at each of these boxes for mail that he had to deliver. When asked to comment on the need for Mr Isbister not just to carry the backpack but to lift it on and off his back several times whilst on his beat Dr Burke told the tribunal that he would stand by his opinion expressed in the report. He said he was still of the opinion that Mr Isbister’s lifting of a 16 kilogram backpack would not have caused or aggravated his hernia. Dr Burke drew a distinction between the act of aggravating the hernia and aggravating the symptoms of a hernia. Dr Burke said:
On one hand a particular activity is responsible for causing a hernia or causing it to become larger or in some way worse. On the other hand an activity is responsible for causing pain and development of a lump and those are symptoms which occur in a person who has an indirect inguinal hernia.
56. In his report Dr Burke stated that as Mr Isbister’s hernia hadn’t worsened since 2 August, that this proved that his work duties were not aggravating his hernia. Dr Burke told the tribunal that repeated heavy lifting of a 16kg backpack could aggravate a hernia that had already developed, but added:
I think the history indicates also that there is no particular worsening of the condition of his hernia once he first noticed it up to the time when I examined him.
57. When told that the last date on which Mr Isibister performed work for Australia Post was 2 August, Dr Burke told the tribunal that he was corrected in this respect and would withdraw the statement contained in his report.
58. When, in cross-examination, Dr Burke was asked about the proposition contained in his report that:
the lifting strain of a backpack is taken on the back and that it transmits little or no pressure to the abdominal musculature.
Dr Burke explained:
When the backpack is on the back there is little or no transmission, especially to use abdominal muscles or to increase abdominal pressure because it is taken high on the back, on the shoulders and the back, and that is the purpose of a backpack, to avoid having to strain your abdominal muscles to carry it so that is the implication that sends.
59. When asked by the tribunal about Dr Lurie’s pre-employment medical check on Mr Isbister, Dr Burke said that he accepted Dr Lurie’s report. Dr Burke agreed that the report “shows that the hernia developed during that 12 months”.
Consideration
60. We note that Dr Lurie’s pre-employment check showed no hernia. As well, Mr Isbister gave straightforward evidence that he first noticed a burning sensation when he was on his beat, then a sharp pain on one occasion and that he subsequently discovered a lump in his groin. We find no strong reason to doubt Mr Isbister’s evidence about these occurrences.
61. Taking into account Mr isbister’s evidence and the many medical opinions before us, we have reached the view, on balance, that Mr isbister’s hernia was not directly caused by his carrying out his duties as a postman but was materially contributed to by these duties. We have been influenced by the weight of medical opinions before us and especially that of Dr Griffith, who paid attention in his report and oral evidence to the effect of repetitive lifting the backpack full of mail. Professor Lord also gave evidence that supports Mr Isbister’s claim that his workplace duties led to the hernia developing. Professor Lord believed it was likely that on the day that Mr Isbister experienced the acute sharp pain that there was some sort of change in his hernia and that was probably a significant enlargement of the hernia.
62. Dr Griffith stated that, to his mind, somebody carrying or lifting a backpack weighing up to 16kgs would be likely to have an increase in intra-abdominal pressure. Dr Griffith explained that carrying heavy objects on a repeated basis, which requires abdominal muscle contraction to stabilise the vertebral column, involves an increase in abdominal pressure. Dr Burke, under cross-examination gave his further opinion that, while lifting of a 16 kilogram backpack would not have caused or aggravated his hernia, it might aggravate the symptoms of an existing hernia. Dr Burke said an activity may be responsible for causing pain and development of a lump and those are symptoms which occur in a person who has an indirect inguinal hernia.
63. The main opposing view was put in the report of Dr Burke, who did not deal with the effect of frequent lifting of the backpack and who put some importance on Mr Isbister’s condition not having worsened as evidence that his lifting and carrying the backpack did not cause or aggravate his inguinal hernia. However, it was clear that Dr Burke had not been aware that Mr Isibister had not since performed work for Australia Post. Nevertheless, Dr Burke declined to withdraw his statement and clarified that he still did not agree that Mr Isbister’s hernia was caused by his workplace conditions. This was so despite his acceptance that Dr Lurie’s pre-employment examination of Mr Isbister showed no hernia and Dr Burke’s acknowledgement that it must therefore have occurred during the 12 months when Mr Isbister was employed, that is, the period between the pre-employment check and diagnosis.
64. The circumstance of lack of evidence of any pre-existing condition in our view tends to point to a link with the workplace when combined with the weight of medical opinion that heavy lifting would be likely to aggravate a genetic predisposition to an indirect inguinal hernia.
65. In ascertaining whether the injury Mr Isbister suffers was materially contributed to by his employment, we bore in mind the principal cases in which the phrase “material contribution” has been interpreted. They include Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626; Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36; Westgate v Australian Telecommunications Commission (1987) 17 FCR 235; Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173; and Commonwealth Banking Corporation v O’Neill (1988) 15 ALD 609.
66. In Westgate v Australian Telecommunications Commission the Federal Court referred to O’Neill and stated:
It is sufficient that the employment contributes in a material way to the contraction of a disease, its aggravation or acceleration or recurrence. It is not necessary to establish fault on the part of the employer or any unusual stress or factor or special circumstances in the employment itself.
67. Provided there is evidence that links the condition in some way to some aspect of employment or an employment-related condition, this requirement will be met if these made a material contribution, as that term is explained below, to the continuation of the condition for the purposes of section 14 of the Act. As to the nature of the contribution which is required, in Treloar v Australian Telecommunications Commission (1990) 97 ALR 321, the Federal Court said (at 328):
“The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.”
68. On the balance of probabilities in the present case, we find there is a causal connection between the development of Mr Isbister’s indirect inguinal hernia and the lifting and carrying of a backpack on his beat as a postman. This aspect of his employment made a material contribution to his groin injury. It follows that the respondent bears liability for Mr Isbister’s injury and for his associated reasonable medical expenses and any resulting incapacity.
decision
69. The decision under review is set aside. In substitution the tribunal finds that the respondent is, pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988, liable for compensation to the applicant, on and from the date of his injury sustained during the course of his employment.
We remit the claim to the respondent under section 43(1)(c)(ii) of the AAT Act 1975 for determination of his entitlements under sections 16 and 19 of the Act for his reasonable medical expenses and for any incapacity payments.
70. Costs may be awarded in this matter pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988 and pursuant to the tribunal’s Practice Direction. Costs may be awarded in this matter pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988 and pursuant to the tribunal’s Practice Direction.
I certify that the preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
Rhonda Pietrini AssociateDate/s of Hearing 11-12 September 2006
Date of Decision 31 October 2006
Counsel for the Applicant David Richards
Solicitor for the Applicant Hamad Zreika
Counsel for the Respondent Rhonda Henderson
Solicitor for the Respondent Graham Jones
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