Peter Towns and K & S Freighters Pty Ltd
[2012] AATA 283
•11 May 2012
[2012] AATA 283
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/2477
Re
Peter Towns
APPLICANT
And
K & S Freighters Pty Ltd
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey and Dr I Alexander
Date 11 May 2012 Place Sydney The Tribunal sets aside the decision under review and substitutes for it the decision that the respondent is liable to compensate the applicant for the aggravation of his hernia condition.
............[sgd]............................................................
Senior Member J F Toohey and Dr I Alexander
CATCHWORDS
COMPENSATION – aggravation of right inguinal hernia – truck driver – change in duties – whether employment contributed to aggravation to a significant degree – decision under review set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5B and 14
REASONS FOR DECISION
Senior Member J F Toohey and Dr I Alexander
BACKGROUND
Mr Peter Towns has been employed by the respondent as a truck driver since approximately 2000. He delivers rolls of newsprint weighing up to two tonnes each to newspaper printers.
Mr Towns usually drives a single semi-trailer. Between April and August 2010, while another employee was off work, he drove a B-double which comprises two semi-trailers drawn by a prime mover.
Mr Towns has a right inguinal hernia as a result of lifting a heavy weight at his previous place of employment. He claims it was asymptomatic until April 2010 when he started driving the B-double. He claims the heavier work involved in driving the B-double aggravated his hernia such that it now requires surgical repair. He has not time off work, but seeks compensation for the cost of the operation and any related incapacity.
RELEVANT LEGISLATION
By s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act), the respondent is liable to compensate Mr Towns for an injury that results in incapacity for work or impairment: s 14.
Injury means, relevantly:
(i)a disease suffered by an employee; or
(ii)an injury (other than a disease) that it is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(iii)an aggravation of a physical or mental injury (other than a disease) that arose out of, or in the course of that employment.
Disease means an ailment suffered by an employee or an aggravation of such an ailment that was contributed to, to a significant degree, by the employee's employment.
Ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development): s 4. There is no argument that Mr Towns’ hernia constitutes an ailment for the purposes of the Act.
Significant degree means a degree that is substantially more than material: s 5B(3). Section 5B(2) provides that, in determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment, the matters that may be taken into account include, but are not limited to:
(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; and
(e) any other matters affecting the employee's health.
THE ISSUE
The medical evidence shows, and the respondent does not dispute, that Mr Towns’ hernia has increased in size and requires surgical repair. The respondent does not dispute that Mr Towns noticed some difference in his symptoms when he started driving the B-double. The respondent contends, however, that there is no causal connection between the aggravation of his hernia and his employment.
We have to determine whether Mr Towns’ employment with the respondent contributed, to a significant degree, to the aggravation of his hernia.
DID MR TOWNS’ EMPLOYMENT CONTRIBUTE, TO A SIGNIFICANT DEGREE, TO THE AGGRAVATION OF HIS HERNIA?
Mr Towns’ evidence
Mr Towns represented himself before the Tribunal. He gave evidence that he has always had a “slight lump” at the site of the hernia but he had “always been able to take care of it”; on “one or two occasions” when lifting something heavy, he had noted to himself that it had “probably hurt a bit”. Otherwise, it caused him no pain or discomfort. It did not interfere with his work and he never had time off because of it.
Other than the period in question, Mr Towns has always driven a semi-trailer for the respondent. He described in evidence how he carries out a routine safety inspection before each trip, checking the vehicle’s lights, fuel, oil and tyres, and noting any items needing repair and, if necessary, requesting repairs.
Mr Towns gave evidence that he then prepares the semi-trailer for the rolls of newsprint to be loaded on by means of a vacuum forklift. Along each side of the vehicle is a rail which keeps the load in check. Also along each side of the vehicle is a heavy tautliner curtain suspended on rollers from the roof and attached at the bottom by some 40 “tie-down straps” and buckles. The curtain is pulled open or closed by means of a pole which sits in slots at the top and bottom at each end of the curtain, and is tightened by means of a ratchet handle. Each time the curtain is opened or closed, the pole has to be lifted in to, or out of, the slot. Depending on whether the vehicle is being loaded or unloaded, what the load is and how the forklift driver wants to load it, the curtains are pulled open or closed along the length of the semi-trailer, then each buckle tied down. Mr Towns then stands aside while the vehicle is loaded, closes the curtains and completes the necessary paperwork. At the unloading dock at the other end, he opens the rear doors and unloading is generally done automatically.
Around 13 April 2010, Mr Towns was asked to drive the B-double for “a couple of days” while the usual driver was off work. On his first day, he made a thorough inspection of the vehicle, taking longer than usual, and noting that the tie-down straps, winder handles and a wheel bearing cover needed replacement or repair, all of which were dealt with.
Mr Towns gave evidence that, whereas his own semi-trailer did not have gates, the B-double had four sets of gates, each weighing 15 to 20 kilograms, which he was required to lift open. They varied in size and height and were bent in places, and the tongues by which they slotted into the sides of the truck had been welded in places and were out of alignment. They were lifted by chains but would jam and have to be lifted manually. One gate had to be lifted by one end, then the other, out of its runner which was awkward and required extra effort. It was too close to the adjacent gate meaning all the gates on that side had to be moved along in order to lift it. Some gates were bent inwards, making them hard to move when the load was up against them.
The tautliner curtains on each side of each semi-trailer would be pulled open for unloading and closed after loading. Each was pulled along runners by means of a pole. Whereas this usual semi-trailer had two curtains, the B-double had four, and the poles were bent in places and required extra effort to lift them from their slots in order to draw the curtains.
The site where the B-double was loaded was on an incline in an area exposed to wind. The curtains had to be drawn against the incline, requiring extra effort, and the wind would force the curtains against the poles making them more difficult to draw.
The respondent does not take issue with photographs submitted by Mr Towns which show the incline on which the B-double was loaded, the state of the gates and the poles used to draw them, and the curtains. The photographs appear to support his claims about the state of the vehicle.
Mr Towns says he realised, in the first few days, that the B-double involved “much heavier work” than the semi-trailer and that he would have to be “really careful” to avoid injuring himself. In particular, as outlined above, the state of the gates and the poles used to draw the tautliner curtains, and the fact that the loading site was on an incline and exposed to the elements, meant a greater degree of lifting and exertion than the single semi-trailer he usually drives.
Mr Towns gave evidence that, in his first week driving the B-double, he noticed pain and discomfort at the site of the hernia. The first time he tried to lift the pole, it was too hard to lift; eventually he got a piece of timber and “gave it a bash” to loosen it. He could feel “like a little bit of a heat sensation as if you’ve pulled a muscle”. If he lifted anything too heavy, he would feel the hernia “pop out” and protrude, which it had done in the past but which he had been able to manage by working within his limits. Occasionally, if he went “over his limit”, he could feel “a sting” which he “knew was a minute tear in the wall of the abdomen, because that’s how they described it to me”.
After about a week, Mr Towns decided to use a belt, similar to the truss belts he had seen in magazines, and he found that putting a wad of fabric under the belt at the site of the hernia helped to keep it in check and stop it protruding. He had never worn a belt previously but he wanted to protect himself against injury.
The other driver was off work for longer than expected and Mr Towns continued driving the B-double but, over time, he became concerned as he felt the lump get bigger. By mid-August, he thought he should stop driving the B-double or it would get even larger. On 18 August 2010, he spoke to his manager, Mr Paul Rose, who asked him to complete an Incident Report form and referred him to the company’s doctor, Dr William Ma. Dr Ma referred him to a surgeon, Dr Anthony Greenberg.
The Incident Report form completed by Mr Towns on 18 August 2010 shows that he claimed to have “strained while using curtain poles and gates on [the B-double]”; that he had “gradual onset of hernia aggravation” which he had had for ten years, that it was “noticeably bigger and am now concerned at its size”.
Around 27 August 2010, Mr Towns stopped driving the B-double and resumed driving the semi-trailer. Once he did, his symptoms abated. The lump did not decrease in size but the change in activity meant he no longer had pain or discomfort, or, as he described it, the “sting sensation”. He has driven the semi-trailer without difficulty since.
Mr Towns agrees he did not note the condition of the gates or the pole on his first report but he said that noting every item needing repair would amount to asking for a new vehicle altogether, and it was not until he started driving the B-double that he became aware of the problems. As far as he recalls, he did not report the problems with the B-double until he spoke to Mr Rose on 18 August 2010. We note that a schedule of repairs shows a request on 7 June 2010 for the “rear roller on trailer [to be] fixed due to having flat spots as curtain is hard to pull to the rear” but Mr Towns has no recollection of this.
Mr Towns agreed in cross-examination that refusing to drive the B-double was “an option” but said it was not a practical one. He assumed he was expected to use it as it was and he “just worked around” it. He did not want to let the company down and he was keen to keep driving it because the money was better and he thought there might be future the opportunities. He felt he could manage his condition as long as he did not injure himself.
Mr Towns was cross-examined about activities on the hobby farm he owns and, in particular, whether he ever had a conversation at work about injuring himself while looking for stray cattle. He said he had no recollection of such a conversation but he recalled an occasion when he walked a long distance looking for cattle, after which he noticed the site of the hernia was “a bit painful”. He did not recall talking to anyone about that but he did talk at work about his farm. He said the heaviest work he would do on the farm would be to lift a block of firewood.
It was put to Mr Towns that he had noticed his hernia getting worse over time; that he made inquiries about claiming compensation from his former place of employment, where the injury originally occurred; that he was told it would be too difficult to pursue because it was too long ago; and he then decided to claim against his current employer for the aggravation.
Mr Towns emphatically denied that suggestion. He gave evidence that he had no intention of claiming compensation when he spoke to Mr Rose; he just wanted to stop driving the B-double and asked if another driver could take over; it was Mr Rose who referred him to the company doctor and asked if he wanted to make a claim, and the doctor who suggested he should pursue the matter with his previous employer; he did not approach, or have any contact with, his previous employer.
Mr Paul Rose’s evidence
Mr Paul Rose is the respondent’s operations manager. He joined the company in 2001. He has a range of responsibilities including supervising the team of truck drivers, including Mr Towns. He is currently seconded to another employer.
Mr Rose gave evidence about how inspections are carried out by drivers, and the process by which complaints and requests for repairs are dealt with. Other than the repairs Mr Towns requested after his first inspection of the B-double, Mr Rose could not recall any other occasion when he requested repairs to that vehicle. This is consistent with Mr Towns’ evidence.
Mr Rose gave evidence that he first learned of Mr Towns’ hernia in late April 2010 when Mr Towns said it had been troubling him. He has no recollection of Mr Towns mentioning the B-double or any problems with it during this conversation. He had “the impression” that the aggravation occurred when Mr Towns was looking for some stray cattle on his property. Mr Rose also understood, from discussion with Mr Towns, that he was making enquiries as to whether compensation could be claimed from his previous employer.
Mr Rose could not be sure whether these were one and the same discussion, although he thought it was the latter. As he recalled, the conversation took place either in his office or while he and Mr Towns were driving somewhere in Mr Rose's vehicle. His next conversation with Mr Towns about his hernia was in August 2010. In the meantime, as far as he was aware, Mr Towns was “pursuing the ex-employer”.
The schedule of repairs shows that repairs were carried out on 7 August 2010 to “2/Repair x 2bent and cracked gates”. Mr Rose could not recall how this particular repair came about, or how it relates to a note he made on 27 August 2010 in relation to another matter that the same trailer had been inspected and “1 gate was found to be slightly bent causing a minor drag when being removed from the gate tongue”. He told the Tribunal that he only occasionally had cause to lift the gates on the B-double but he agreed it could be difficult and that they require “a bit of effort”.
Mr Rose appeared to us to give his evidence truthfully and to the best of his recollection. He impressed us someone who takes his job seriously. However, we prefer Mr Towns’ account of their conversations.
Given that it was not until August 2010 that the question of compensation was raised with Mr Towns, Mr Rose’s impression that he was pursuing his former employer after April 2010 cannot be correct. We accept Mr Town’s evidence that he did not consider a compensation claim until he saw Dr Ma in August 2010.
We accept Mr Towns’ evidence that he had no contact of any sort with his former employer and took no steps to pursue a claim for compensation. There is no evidence that he did either. In our view, Mr Rose was mistaken about this. Regarding the aggravation of Mr Town’s hernia, Mr Rose could not put his recollection higher than an “impression” that it happened while Mr Towns was out looking for cattle.
Mr Ray Hovenden’s evidence
The respondent called Mr Ray Hovenden, who is the usual driver of the B-double Mr Towns drove between April and August 2010. Mr Hovenden provided an undated written statement and gave oral evidence.
Mr Hovenden supported Mr Towns’ evidence about the state of the gates and the difficulty lifting them. He agreed they jam, as does the pole which makes it difficult to lift. He agreed that the exposed loading site can cause the curtains to blow in an out, making them more difficult to draw. He gave evidence that he reported the state of the gates several times but nothing was done about them and, when they did go for repair, they appeared to come back in the same state.
Mr Hovenden impressed us as an honest and credible witness and we accept his evidence.
Statement of Mr Les Byram
Mr Towns has submitted an undated statement from Mr Les Byram, the forklift driver who usually loads Mr Hovenden’s B-double. Mr Byram states that the back trailer of the B-double is in bad condition, with bent gates of different sizes; they have been altered to try to make them fit but they still jam in the slots and against the rolls of newsprint. He helped Mr Towns fix some of them “a bit” but didn’t have time to do more.
Mr Byram was not called to give evidence. His statement is untested and we can give it only limited weight. However we give it some weight because it is consistent with Mr Towns’ and Mr Hovenden’s sworn evidence about the state of the gates.
The medical evidence
On 8 September 2010, Dr Ma issued a WorkCover medical certificate noting “right inguinal hernia exacerbated by lifting/putting when loading trucks” in “July 2010”. He certified Mr Towns fit for suitable duties from 8 September 2010 to 6 October 2010 subject to lifting up to 10 kilograms and avoiding heavy lifting.
When he reviewed Mr Towns on 25 August 2010, Dr Ma referred him to Dr Anthony Greenburg, a colorectal and general surgeon. Shortly after, liability for Mr Town’s claim was denied. His symptoms had abated and he did not see Dr Greenburg again until August 2011. Around the same time, Mr Towns also saw Dr Dhan Thiruchelvam, an upper-gastrointestinal and hepato-pancreato-biliary surgeon.
In a report dated 4 August 2011 to Dr Ma, Dr Greenberg wrote:
He was noted to have a small hernia when he commenced work in 2000 and worked for many years with the same duties driving and leading semitrailers. He recently commenced driving a different vehicle and noticed pain in his right groin and an increase in the size of his right inguinal hernia which made work duties difficult.
Peter's findings are consistent with the description given of his work duties. On examination he has a large right inguinal hernia which I agree needs to be repaired as it will only increase in size making work difficult.
On 1 September 2011, Dr Thiruchelvam reported to the respondent’s insurer that he saw Mr Towns on 4 August 2011. He wrote:
He is an otherwise fit and healthy gentlemen and gives me a history of having 10 years of the right inguinal hernia.
On examination here today he certainly has a reducible right inguinal.
He states that he works in the trucking industry and does a lot of heavy lifting and pulling. This would certainly aggravate the hernia. I have placed on a waiting list to have it repaired.
On 22 September 2011, Mr Towns saw Dr John Roth, consultant surgeon, at the request of the respondent. Dr Roth was provided with Dr Greenberg’s, Dr Ma’s, and Dr Thiruchelvam’s reports as well as the undated statements prepared by Mr Byram and Mr Hovenden.
Dr Roth noted Mr Towns’ history of a previous injury, that he was subsequently seen by a doctor and found to have a right inguinal hernia; that he was referred to a surgeon but, because the swelling in his groin was only small, he did not wish to undergo surgery; he did not take any time off work and continued working.
In response to question asked of him, Dr Roth reported:
In view of the physical nature of the work which Mr Towns has been performing, although the right hernia was present prior to his employment with K&S Freighters, the nature of the work which he has been performing with K&S Freighters has, I believe, been such that this has aggravated the pre-existing right inguinal hernia to the extent that surgical repair is now required.
His employment with K&S Freighters has, I believe, been a substantial contributing factor.
In a supplementary report, from which it appears the respondent had sent Dr Roth documentation indicating there were “no relevant faults with Trailers 646 or 647 at the relevant time”, Dr Roth wrote:
As stated in my previous report, the general nature of the work which Mr Towns has been performing with K&S Freighters Pty Ltd over the years has involved amongst other things pushing and pulling poles on the back of the truck as the poles were jammed against the load and this included paper weighing approximately two tonnes. He also used pipe extensions to tighten and loosen the curtains on the back of trucks. In addition, he would also pull curtains on the trailer uphill as apparently the loading area was on the slope and in windy weather he would exert considerable pressure when the curtains were caught by the wind.
In view of this, I believe that the increase in size of his right inguinal hernia can be related to the general nature of the work which he has been performing with K&S Freighters over the years.
CONSIDERATION
For the respondent it is contended that Mr Towns realised in 2010 that his hernia was worsening and required surgical repair and that when he found a claim against his former employer would not succeed he set about claiming compensation from the respondent. We reject that contention as speculation unsupported by any evidence.
The respondent further contends that Mr Towns was aware, or should have been, of his responsibilities to report any matter going to the safety of a vehicle, and failed to do so. We fail to see how that contention advances the respondent’s case.
Mr Towns impressed us a truthful witness who gave his evidence frankly and without exaggeration. We accept that his hernia was virtually asymptomatic up until April 2010 when he started driving the B-double. At that time, he had been driving a semi-trailer without any apparent difficulty for approximately ten years.
We are satisfied that Mr Towns started to experience pain and discomfort within days of driving the B-double and that it continued over the four months he was driving that vehicle. Further, that his pain and discomfort ceased when he returned to driving the semi-trailer.
We are satisfied, on the evidence, that driving the B-double involved a change in the work that Mr Towns was doing, in particular that his duties involved heavier lifting. Whereas the semi-trailer did not require him to lift any gates, he had to lift four sets of gates on the B-double, and draw four sets of heavy curtains against an incline with a pole that also required lifting.
The respondent suggests that we cannot be satisfied that the aggravation of Mr Town’s hernia is related to his employment because we have no medical evidence about its state before April 2010 to compare it with. We do not accept that contention. We have Mr Town’s evidence, which we accept, about the change in his symptoms and size of his hernia from that date.
The undisputed medical evidence, including from the respondent’s specialist, is that the increase in the size of Mr Towns’ hernia is consistent with the activities involved in driving the B-double. There is nothing to suggest that Mr Towns gave anything other than a frank description of his duties and injury to the doctors. Nor is there any evidence to suggest that any other factor suggested by the respondent, such as age, played any role in aggravating Mr Towns’ hernia. There is no evidence to support the finding that the pain which he felt while walking a long distance on one occasion played by significant part in aggravating his condition.
As noted above, in order for the respondent to be liable to compensate Mr Towns, we must be satisfied that his employment contributed to a significant degree to his injury. We are satisfied that there is a clear connection between the aggravation of Mr Towns’ hernia and the change in his duties in the period from April to August 2010, and there is no evidence to suggest that any other factor played a material part in the aggravation.
CONCLUSION
We are satisfied on the balance of probabilities that Mr Towns’ employment contributed, to a significant degree, to the enlargement of his hernia and associated pain and discomfort.
We set aside the decision under review and find the respondent liable, under s 14 of the Act, to compensate Mr Towns for the aggravation of his hernia.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey and Dr I Alexander.
...........[sgd].............................................................
Associate
Dated 11 May 2012
Date(s) of hearing 16 and 17 April 2012 Applicant In person Counsel for the Respondent Mr M Snell Solicitors for the Respondent Mr M Seymour, Clarke Legal
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