Portors and Comcare (Compensation)
[2017] AATA 2166
•13 November 2017
Portors and Comcare (Compensation) [2017] AATA 2166 (13 November 2017)
Division: GENERAL DIVISION
File Number(s): 2016/3327
Re:Ivan Portors
APPLICANT
ComcareAnd
RESPONDENT
DECISION
Tribunal:Deputy President Gary Humphries
Date:13 November 2017
Place:Canberra
The decision under review is affirmed.
........................................................................
Deputy President Gary Humphries
Catchwords
COMPENSATION – whether injury arose out of, or in the course of, employment –whether the Applicant had any entitlement to compensation – whether the Applicant has entitlement to compensation because of a new injury caused as a result of medical treatment – whether a fresh s 14 determination must be made over the new injury – the basis on which the Tribunal is to accept expert evidence – shifts in medical consensus over the years – reviewable decision affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(3), 5A, 5B, 14, 16, 19
Cases
Cox and Comcare [2006] AATA 521
Daly and Australian Postal Corporation [2006] AATA 1510
Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171
Isbister and Australian Postal Corporation [2006] AATA 931
Kennedy v Cordia (Services) LLP [2016] UKSC 6
Telstra Corporation v Hannaford (2006) 151 FCR 253
Townsand K & S Freighters Pty Ltd [2012] AATA 283
REASONS FOR DECISION
Deputy President Gary Humphries
13 November 2017
The Applicant, Mr Ivan Portors, has an accepted claim under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for inguinal hernia, without mention of obstruction (bilateral) and umbilical hernia, without mention of obstruction, with a date of injury of 10 July 2002.
The Respondent, Comcare, by determination dated 8 May 2015, found that Mr Portors had no present entitlement to either medical expenses or incapacity payments under ss 16 or 19 of the Act for his accepted condition. Mr Portors sought reconsideration of this determination, but on 2 June 2016 Comcare affirmed the determination of 8 May 2015. In the course of doing so, Comcare’s delegate found that Mr Portors was suffering from a chronic pain condition for which he required medical treatment and time off work. Comcare had not, however, accepted liability for that pain condition and was therefore not liable to pay compensation in respect of that condition.
BACKGROUND
Mr Portors was 31 years old at the date of his alleged injury on 10 July 2002. He had been employed as a storeman/labourer with the Department of Health (the Department) since 1999. On joining the Department he had completed a pre-employment health status assessment following which he was certified as medically capable of performing the duties of his job.
On or about 10 July 2002, Mr Portors was helping another employee to carry a heavy conference table to the third floor of departmental premises in Woden, ACT. The table could not be fitted into the lift so it had to be carried by the two employees up three flights of stairs. Mr Portors told the Tribunal the table was awkward to manoeuvre in the stairwell and was very heavy.
He told the Tribunal that, on completing this task, he felt sharp pain in his groin. He continued working for the rest of the day, and returned to work the following day. He said As the day went on there was… worse pain in his groin. The pain increased over that day and the next. Lying down relieved the pain. He recalled that he was vomiting at about that time. The problem eased a bit over the weekend following. He thought, but could not recall exactly, that he worked Monday and Tuesday of the following week. He went to the hospital on the Wednesday of that week.
He said that there was a gastro thing going around at his work in the period before this incident, but he was unaware of suffering any gastric problem on the day of the incident or in the following days.
A few days later Mr Portors began a period of sick leave. In January 2003 he returned to work with the Department on modified duties, but this return to work was unsuccessful, lasting only about three months. He accepted a voluntary redundancy from the Department on 30 April 2003. After that he worked for a short period in the private sector for a subcontractor to the Department. He continued to experience pain however and ceased employment with the subcontractor after about three months. He has not worked since then.
On 17 September 2002, Mr Portors submitted a claim for workers compensation. On 8 October 2002, Comcare accepted the condition of inguinal hernia, without mention of obstruction (bilateral), and on 9 September 2010 it extended liability to include umbilical hernia as a secondary condition to his accepted condition. In January 2009 Comcare decided that Mr Portors had no present entitlement to compensation under ss 16 or 19, but following a request for reconsideration revoked that determination in May 2009. On 8 May 2015 it again determined (and affirmed on reconsideration on 2 June 2016) that he had no present entitlement to compensation, and it is this decision which Mr Portors has by application made on 27 June 2016 asked the Tribunal to review.
MR PORTORS’ MEDICAL HISTORY
The evidence before the Tribunal disclosed a history of abdominal pain suffered by Mr Portors. Indeed, some of this history preceded the table-lifting incident of 10 July 2002.
He told the Tribunal that he had suffered from gastric reflux since the age of 15 or 16. He treated this with medication.
On 27 March 2000, he presented to Calvary Hospital in Canberra with left flank pain that radiated around to the groin. He had vomited several times and was experiencing ongoing pain and left flank tenderness; a recent urinary tract infection was also noted. He spent three days in hospital for treatment of kidney stones.
On 7 November 2001 he consulted his GP, Dr Peter Black, with a condition the latter diagnosed as viral gastroenteritis. On 12 November 2001 he presented at Calvary Hospital Emergency Department, where the triage record discloses ABDO PAIN – NAUSEA. GENERALISED ABDO PAIN… VIRAL GASTRO… NO DIARRHOEA. The clinical notes accompanying this record note:
- generalised sharp/crampy abdominal pain for last week.
- not well localised.
- associated nausea + occasional vomitting [sic]
Mr Portors consulted Dr Black again for abdominal pain on 15 November 2001, when the diagnosis was Pain in the umbilical region.
A week after the table-lifting incident, on 17 July 2002, he presented at Calvary Hospital Emergency Department where he reported vomiting occasionally for the last six days. The triage notes refer to HX OF GASTRO GOING THROUGH THE FAMILY. NIL DIARRHOEA. The accompanying clinical notes refer to ABDO. PAIN – GENERALISED. The doctor-author of the notes records an impression that the presenting condition is Gastroenteritis.
Under cross-examination, Mr Portors said that he did not recall whether he told the hospital when he had had sharp pains in his groin for six days, nor did he recall telling the hospital that he had experienced sharp pains in the groin when lifting the conference table.
Mr Portors presented again at the Emergency Department on 22 July 2002. The triage assessment records ABDO PAIN FOR THE PAST 2 WEEKS NIL DIARRHOEA INTERMITTENT VONITING [sic]. The clinical notes record abdominal pain, and this:
For two weeks pt. has generalised abdominal pain, vomiting, burping sensation, acidity…
He had a further consultation with Dr Black on 25 July 2002, where Oesophageal reflux was diagnosed, with no reference made to any specific area of abdominal pain. Under cross-examination he said he did not recall if he told Dr Black about experiencing sharp pains in the groin. A diagnosis of oesophageal reflux was given on Mr Portors’ consultation with Dr Black on 30 July 2002. That time Dr Black recorded this history:
Constant churned up feeling in central upper abdomen.
Always been acidy person. Zolon made no difference at all. Lifted heavy weight got symptoms acid in mouth and abdom. pain. Get urgent gastro consult. [sic]
Dr Black referred Mr Portors to Dr Doug Taupin, a gastroenterologist. In a report dated 6 August 2002, Dr Taupin reached no firm conclusion about a diagnosis but notes:
This is predominantly a mid-abdominal, dull churning constant discomfort, with sharp exacerbations, worse on moving around or lifting…
He has poorly localised central abdominal pain, with vomiting.
Under cross-examination Mr Portors had no recollection of telling Dr Taupin about pain in the groin.
A report by an ultrastenographer, Dr Susan Bell, on 5 August 2002 following an ultrasound records Central abdominal pain.
Mr Portors was referred to the gastroenterology department of the Canberra Hospital. A number of tests were conducted in August 2002, including an endoscopy, a colonoscopy, a gastric biopsy and a colorectal biopsy. These tests found nothing abnormal. However, an abdominal ultrasound on 2 August 2002 identified a small mural polyp on the gallbladder and on 5 August 2002 an ultrasound of his testes and groins revealed a 9 millimetre cyst and bilateral indirect inguinal hernia, both of which were described as reducible. In September that year he was examined by Dr Lark, an occupational physician and in October by Dr Nugent, a urologist. The former noted that Investigations have revealed bilateral indirect inguinal herniae. The latter’s examination revealed bilateral direct inguinal hernia which were [sic] easily reducible.
On 29 October 2002, Dr Buckingham, a General Surgeon, wrote to Dr Black confirming a diagnosis of hernia with a recommendation for laparoscopic repair. Dr Buckingham undertook a surgical repair operation the following day.
Mr Portors told the Tribunal that at Christmas that year the pain was still present and that the surgery had made no difference to that. The pain was in the same place and at the same intensity as before the operation.
Mr Portors attended Dr Black on 18 February 2004, 2 April 2004 and 21 September 2004, complaining of persistent pain in his abdomen and both groins. In a referral to Dr Taupin dated 19 February 2004, Dr Black referred to Mr Portors’
… continuing upper abdominal pain which is made worse by physical activity. You will recall that this is [sic] similar symptoms to those he complained about prior to the discovery of his inguinal hernia.
Dr Buckingham, in a report of 22 July 2004, noted having recently seen Mr Portors and referred in his report to symptoms including some pain and it is in the peri-umbilical area, and that these are “the same symptoms as before his hernia operation”.
On 3 February 2005 Dr Black wrote to Comcare advising There is no doubt in my mind the pain which Mr Portors is currently experiencing is directly related to the hernia operations [sic] which he underwent in 2002.
Following an MRI of Mr Portors’ pelvis and groin on 5 July 2005, which confirmed recurrent left inguinal hernia, Dr Vincent Ferraro conducted inguinal hernia repair surgery on 25 October 2005, and further repair surgery – including a neurectomy – on 4 May 2006. However, Mr Portors continued to experience pain and discomfort following the operations. On 10 June 2008 his new GP, Dr Foo, diagnosed chronic groin pain syndrome and certified him unfit to work.
He was referred in August 2006 to Dr Eddie Cassar, a Pain Management Specialist. In October 2006 Marshall O'Brien, a Clinical Psychologist, prepared a report in which he diagnosed Mr Portors as suffering from depression, psychasthenia, social isolation and thought disorder. On 2 February 2007, an ultrasound of both groins showed post-operative change, but no recurrent hernia was evident. However, on 15 January 2013, a groin ultrasound confirmed the presence of a right sided direct inguinal hernia.
In the witness box Mr Portors said he felt at that time pains in the groin, like someone’s stabbing me at the moment. Lifting things, picking up washing baskets and going up stairs all exacerbated his pain.
THE MEDICAL EVIDENCE
The medical evidence before the Tribunal was widely divergent on some issues. On the question, in particular, of the diagnoses of the several conditions with which Mr Portors presented between 2001 and 2016, expert opinion was divided. The Tribunal has therefore focused on reports produced more recently, after Mr Portors’ symptoms had settled down and his prognosis had become clearer.
Dr Peter Stevenson, a consultant physician, provided a report to Comcare dated 28 October 2008 after an examination of Mr Portors. In that report, he opined:
There seems no specific current pathological diagnosis. It seems established that he once had bilateral inguinal hernias. The underlying defect exists prior to working age…
It is recognised that most indirect inguinal hernias are constitutional and may present in childhood or in neonates, but may rarely be precipitated by work events…
It seems actually very questionable that this herniae [sic] was, in fact, precipitated by the incident with the table.
He ascribed the symptoms reported by Mr Portors in July 2002 to gastrointestinal illness unrelated to employment, and suggested that the picking up of the hernias by scans at the time was, in effect, coincidental.
Dr Arne Nilsson, a GP, opined in a report dated 22 October 2009 that Mr Portors’ hernia might well have been present in 2002, but says in a report dated 11 March 2010 that I am unable to comment on Mr Portor’s [sic] inguinal hernias as he did not consult this practice until 29.01.2009.
On 21 January 2014 Dr Geoffrey Speldewinde, a consultant in rehabilitation, pain and musculoskeletal medicine, diagnosed Persistent severe and intrusive neuropathic pain post-surgically due to inguinal neuralgias following hernia repair in 2002.
Gastroenterologist Dr Phillip Jeans authored two reports, both dated 12 August 2013. In those reports he concluded that I am not convinced that he has got a hernia recurrence and
I think that this is more a chronic pain problem than it is a recurrent hernia problem.
He noted that Dr Ferraro had deliberately cut all the nerves during the last operation, but it had obviously not relieved the irritation.
The Tribunal focused particularly on the evidence of three doctors who provided both written reports and evidence by telephone.
Dr David McGrath
Dr McGrath, an Occupational and Musculoskeletal Physician and Master of Pain Medicine, furnished a report dated 10 February 2015 to Comcare. While describing the original diagnosis as obscure, he considered that now the most likely diagnosis is unrelieved tissue stress in the lower abdomen superimposed upon three surgical repairs.
Dr McGrath’s report records the history he took from Mr Portors of the 10 July incident, where he noted:
Mr Portors was on the lower end of the lift. He did not notice any difficulty at the time of this manual handling but two days later became quite nauseous with almost any activity. He consulted his general practitioner and was appropriately investigated for conditions other than hernia. He said the conservative treatment did not relieve his symptoms.
He agreed with the opinion of Dr Stevenson that indirect hernias are rarely the result of physical strain and are often an incidental finding. He stated that the argument for a work-related injury was and is quite poor and on the balance of probabilities he considered that Mr Portors’ original condition was unrelated to factors at work.
In live evidence before the Tribunal Dr McGrath was given the history of Mr Portors’ medical treatment outlined in paragraphs 11-17 above. He said that this history would strengthen the conclusion he reached in his 10 February 2015 report, in that none of this evidence was consistent with musculoskeletal injury [i.e. a hernia].
Under cross-examination, the history outlined in paragraphs 20-23 above were put to him, and he was asked to concede that the doctors who diagnosed hernia at that time were probably correct. This he did, though he maintained that the lifting injury was unlikely to have caused that condition. It was further put to him that the temporal proximity between the lifting incident and the diagnosis of hernia later that year demonstrated that the former aggravated a pre-existing vulnerability in Mr Portors to hernia. Dr McGrath disagreed, describing the linking of the two factors as recency bias, that is, assuming the most recently-identified factor as having always been there. However, he conceded that a link between the two factors was a possibility.
In re-examination, he affirmed that the symptoms recorded in about July 2002 were the wrong distribution, i.e. occurred in the wrong location in the body, for an inguinal hernia; he identified biliary disease as the more likely cause of those symptoms, as well as the symptoms exhibited in November 2001. He also reflected on Dr Buckingham’s observation in July 2004 that the operations did not seem to have relieved Mr Portors’ pain; this, he said, made it more likely that the herniae had not been there in the first place.
Professor Michael O’Rourke
In a report dated 14 November 2016, Prof O'Rourke, a Consultant General Surgeon, provided the opinion to Comcare’s solicitors that Mr Portors suffered from post-surgical chronic pain syndrome. This report was not based on an examination of Mr Portors but on a review of earlier reports. Prof O'Rourke expressed a general opinion about the aetiology of inguinal hernia:
… the inguinal hernia is either congenital or degenerative in nature. There is no evidence whatsoever that heavy lifting causes a hernia.
He observed that:
… in Australia every week at least a quarter of million people go to a gym and lift weights to increase their strength and tone of their abdominal muscles. There is no evidence of increased hernia formation in people attending the gymnasium.
He opined that because Mr Portors was young in 2002 and that his herniae were bilateral and indirect, it was more likely that their origin was congenital. Reflecting on the medical examinations of Mr Portors in 2002, he observed that a hernia never ever produces central abdominal pain and vomiting.
In his evidence to the Tribunal, Prof O’Rourke estimated that, in his career, he had diagnosed and treated some 1500 hernias and, in the last 10 years, reviewed another 1000 hernia patients in their post-operative phase.
Under cross-examination, Prof O’Rourke was asked if lifting incidents can cause aggravation of a congenital predisposition to hernia. His answer was unclear; he seemed to the Tribunal to be suggesting that what he called a significant incident could constitute such an aggravation, though he appeared to be saying that he conceded this by force of the operation of the law rather than from personal conviction. In any case, he made clear that he did not regard the table lifting incident of 2002 as a significant incident, given that it supposedly produced only general abdominal pain and vomiting.
He was asked about a paper he had co-authored with his son in the ANZ Journal of Surgery in 2012 entitled Inguinal hernia: aetiology, diagnosis, post-repair pain and compensation. In that paper they commented:
Despite the above reasoning that most patients may have a pre-disposition, there is still a possible aggravation factor which may occur in the work place. Till larger studies confirm or reject the inevitable factor, one should concentrate on the balance of probabilities that an incident in the work place can be a significant aggravating factor.
He told the Tribunal that since the publication of that paper international medical opinion had shifted, and now adopted the position that hernia had only two causes: degenerative or congenital, and that he shared that view.
Proposed criteria for accepting claims of inguinal hernia for compensation are set out in the paper; the first, mandatory, criterion is The patient experiences pain or discomfort or an abnormal sensation in the groin at the time of the work incident. He insisted that pain felt a day or so later would not qualify under this criterion; in Mr Porter’s case, any pain and vomiting the day after lifting the table could not be sequiturs to that event.
Prof O’Rourke was given the history of Mr Portors’ medical treatment outlined in paragraphs 11-17 above. He said this history strengthened his view that table lifting was not causative of the hernia. He said that the pattern of symptoms was not consistent with an inguinal hernia being caused by, or being aggravated by, the lifting incident. He also said that in his wide experience of hernia he had never seen a hernia patient present with vomiting.
He agreed with Dr McGrath that biliary pain was the most likely cause of the symptoms with which Mr Porter presented at Calvary Hospital in November 2001.
Dr David Gorman
Dr Gorman, a Consultant General Physician, Pain Management Specialist and Medical Oncologist, provided two reports on Mr Portors, dated 23 February 2016 (following an examination) and 27 March 2017. In the former he diagnosed him as suffering from bilateral inguinal pain following hernia repair. He opined:
While Dr Stevenson and Dr McGrath may be correct in their reports in stating that there is a congenital tract down through which the hernia travel, the fact is that this tract was opened at the time of the lifting incident on 10 July 2002.
His second report reflected on the report of Prof O’Rourke of 14 November 2016. He expressed this opinion:
Yes, I believe the hernia was significantly contributed to by his work with the Department of Health and Aged Care when lifting. While this may have been through an area of congenital weakness, the lifting associated with that employment led to the hernia.
In his evidence to the Tribunal, given concurrently with Prof O’Rourke, Dr Gorman said that his clinical experience of hernia was mainly in dealing with problems arising following hernia operations.
He agreed with Prof O’Rourke that it was important for a patient to report groin pain at the time of an incident for a link between the incident and the subsequent hernia to be established. He was also given the history of Mr Portors’ medical treatment outlined in paragraphs 11-17 above. He agreed with Prof O’Rourke that the pattern of symptoms was not consistent with an inguinal hernia being caused by, or being aggravated by, the lifting incident.
Dr Gorman agreed that if the hernia operations did not improve Mr Portors’ experience of pain, it was unlikely that hernia was the original cause of the pain.
THE RELEVANT LEGISLATION
Section 14 governs an employee’s entitlement to compensation under the Act generally. It provides:
(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.
Injury, in s 5A(1) of the Act 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.
An injured employee’s entitlement to medical treatment is determined by s 16 and to payments for incapacity for work by s 19.
ISSUES TO BE DETERMINED BY THE TRIBUNAL
It was Comcare’s submission to the Tribunal that Mr Portors no longer suffers the effects of his accepted compensable condition, namely inguinal hernia, without mention of obstruction (bilateral) and umbilical hernia, without mention of obstruction. Indeed, its submission went further than this; it argued that he had never suffered a compensable condition, in that the evidence presently available suggests that carrying a heavy table up flights of stairs on 10 July 2002 neither caused an inguinal hernia nor aggravated a hernia. It relied in presenting this argument on the statutory insurer’s power, recognised in Telstra Corporation v Hannaford (2006) 151 FCR 253, to make findings of fact that effectively undercut the basis on which an initial acceptance of liability for a condition was made under s 14 of the Act.
In the alternative, Comcare’s submission was that, even if Mr Portors did suffer the effects of a compensable inguinal hernia at some time, he is no longer suffering the effects of that condition but rather suffers from a chronic pain condition, caused most probably by the surgery undertaken to deal with his hernia. However, in this respect it submitted that Mr Portors had never submitted a claim for a chronic pain condition (or any other condition) arising from his hernia surgery, and as such Comcare had no liability under s 14 for such a condition.
Conversely, Mr Portors argued that his hernia condition was an injury – or an aggravation of an injury – pursuant to s 5A in that it was a physical condition which arose out of, or in the course of, Mr Portors’ employment at the Department. He further submitted that he presently suffers from a condition which could be described as either or both of bilateral inguinal pain following hernia repair and/or a chronic pain syndrome. This condition (the hernia repair condition) was characterised as either a sequela to, a continuation of, or a development of, his accepted compensable condition. However characterised, it was submitted that the hernia repair condition is compensable by the operation of s 4(3), which provides:
(3)For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if:
(a) compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and
(b) it was reasonable for the employee to have obtained that medical treatment in the circumstances.
The Tribunal therefore faces several issues in these proceedings:
(a)Does the evidence as presently constituted support a finding of fact that Mr Portors suffered a workplace injury on or about 10 July 2002?
(b)If he did suffer such an injury, is the hernia repair condition in turn an injury pursuant to ss 4(3) and 5A?
(c)If it is, is Mr Portors entitled to compensation under the Act for the hernia repair condition?
CONSIDERATION
Mr Portors claims that his accepted condition of inguinal hernia (bilateral and umbilical hernia) arose out of, or in the course of, his employment. Alternatively, Comcare asserts that he never suffered an injury pursuant to the Act and, as such, he does not have a present entitlement to compensation under ss 16 and 19 of the Act (per Hannaford).
Did Mr Portors experience groin pain when, or soon after, lifting the table?
In addressing the issues facing the Tribunal, it is convenient at this juncture to make a finding of fact on a particular matter in dispute in the hearing.
Mr Portors gave evidence to the Tribunal that he felt sharp pain in his groin soon after lifting the table. He said that the pain felt like he was being stabbed in the groin. If the Tribunal accepts this evidence, it would add weight to the identification of a causal connection between the lifting and the hernia (though not conclusively, since the preponderance of the evidence nonetheless suggests that a hernia would rarely be an outcome of lifting). Doctors called by both Mr Portors and Comcare agreed that pain contemporaneous with lifting was an important indicium that the lifting had caused a hernia.
There is little in the way of corroborating evidence for Mr Portors’ assertion of immediate pain after lifting the table, however. Mr Portors had six consultations with five different doctors (as well as triage nurses) in the month following the table incident. He consulted each of those professionals regarding abdominal pain. All the doctors appear (as one might expect) to have asked him about the location of his pain, and they record variously generalised pain, pain in central upper abdomen, mid-abdominal discomfort, poorly localised central abdominal pain, central abdominal pain, and upper abdominal pain. In none of the clinical notes or reports arising from those consultations is reference made to groin pain.
The referencing of his pain to parts of the abdomen other than the groin is significant. The medical evidence is consistent in suggesting that pain from an inguinal hernia caused by lifting would almost certainly manifest itself sharply and immediately in the groin region. But there is no corroborating evidence that this occurred. One might expect that he would inform his medical advisers of the location of his pain. Conversely, it seems highly improbable that Mr Portors would have told five doctors and two triage nurses that he was experiencing or had experienced sharp groin pain but that not one of them recorded that assertion. Mr Grey observed that doctors and nurses in busy emergency departments can often make mistakes; the Tribunal agrees, but the pattern of mistakes here suggests not that the health professionals failed to record something important but that they recorded consistently the same thing: pain anywhere in the abdomen but the groin.
The Tribunal also notes that Dr McGrath’s report of 10 February 2015 records the history he took from Mr Portors of the 10 July incident as follows:
Mr Portors was on the lower end of the lift. He did not notice any difficulty at the time of this manual handling but two days later became quite nauseous with almost any activity. (emphasis added)
Mr Portors conceded under cross-examination that this is what he told Dr McGrath.
The foregoing is a firm foundation for the conclusion that Mr Portors did not feel pain contemporaneously with the lifting, but felt it some hours or days later, and that the pain he felt then was not groin pain. Reaching this finding does not imply that Mr Portors was deliberately untruthful to the Tribunal; in fact his evidence suggested that he had forgotten many details concerning the course of his long and multifaceted illness. He answered many questions under cross-examination regarding his medical history with I can’t recall. In addition, it may be that his conviction that his work was responsible for his illness has recast his memory of its genesis. Whatever the explanation, the Tribunal is unable to prefer his memory when it stands so clearly at odds with contemporary medical records.
Did the table lifting cause Mr Portors’ hernia?
The most likely diagnosis of Mr Portors’ present medical condition, based on the opinion of the three doctors giving live evidence, is neuropathic postsurgical pain syndrome or some near variation on that condition. The evidence strongly suggests that this condition arose out of the operations carried out between October 2002 and May 2006, operations conducted with the ostensible purpose of curing his herniae. Complications from surgery of this type are apparently not uncommon. Prof O’Rourke described pain of this type as an enormous problem and Dr Gorman called it a well accepted entity. If the evidence had pointed to the hernia itself being a work-related condition, the Tribunal would have little difficulty in determining, subject to the formal requirements of the Act, that there is a chain of causation from employment to compensability. However, the weight of the medical evidence leans strongly towards the conclusion that lifting heavy weights is not in general terms likely to cause a hernia, nor is it likely in general terms to aggravate a pre-existing hernia. This evidence about the general aetiology of hernia assists the Tribunal to the view that lifting did not cause Mr Portors’ herniae specifically.
Dr McGrath thought a hernia was rarely the result of physical strain, but conceded the possibility that it could be. Prof O’Rourke seemed not to concede even that possibility. Both doctors were clear that, whatever the theoretical possibility of a connection, in the circumstances of Mr Portors’ herniae there was none. Dr Stevenson’s report was to the same effect.
There are sound reasons for placing greater reliance on this evidence than on that of the two doctors who initially asserted a work-related cause of the hernia, Drs Gorman and Black. The relative experience of the two groups of doctors is one such reason. Prof O’Rourke made reference to his wide experience through diagnosing and treating some 1500 hernia patients, whereas Dr Gorman conceded that his expertise lay principally with complications arising from hernia surgery – the wrong end of the hernia spectrum for the purposes of establishing original causation. Dr Black is a general practitioner, with nothing to suggest any significant experience in hernia causation; in any case, he was not called to give evidence.
But even this juxtaposition of opinion does not properly represent the balance of the evidence before the Tribunal, because in reality Dr Gorman’s position should fairly be described as ambivalent as to the question of the hernia’s causation. Though he originally asserted that the hernia was work-caused, his position seemed to shift during live evidence. On being given the history of Mr Portors’ medical treatment for abdominal pain in November 2001 and July-August 2002, he agreed with Prof O’Rourke that the pattern of symptoms was not consistent with an inguinal hernia being caused by, or being aggravated by, the lifting incident. He also agreed with Prof O’Rourke that the absence of groin pain simultaneously with a lifting incident strongly militates towards that conclusion.
Having found, on the evidence, that Mr Portors did not experience simultaneous groin pain with lifting, it is fair for the Tribunal to characterise Dr Gorman’s evidence as weighing unfavourably towards Mr Portors’ claim.
Mr Grey, counsel for Mr Porter described Prof O’Rourke as eccentric and his evidence as dogmatic, and asked that the Tribunal give it less weight in the circumstances. Certainly his cross-examination of Prof O’Rourke was a testy and heated affair in which counsel and witness clashed repeatedly.
Even conceding that some of Prof O’Rourke’s answers were unresponsive, and that on occasion his evidence bordered on advocacy for Comcare, the Tribunal hesitates to discount evidence which is generally consistent with the other medical evidence before it. Even Dr Gorman seemed to defer to Prof O’Rourke’s expertise on hernia diagnosis.
This evidence could best be summarised as saying that lifting heavy weights is unlikely to cause or aggravate a hernia, but that if it did it would almost certainly only arise in circumstances where the sufferer felt strong and immediate pain in the area of the hernia. Put another way, pain occurring hours or days after the lifting incident would be indicative that the lifting had most likely not been productive of a subsequent hernia.
Mr Grey submitted that it was open to the Tribunal to disregard or discount the evidence of Prof O’Rourke (and by implication that of other doctors who disparaged the lifting/hernia nexus). He put to the Tribunal that the incidence of pain immediately or soon after heavy lifting was persuasive of a connection between those two things. Mr Grey argued that temporal connections between putative causes and illnesses are an important part of clinical judgements. He pointed also to 3½ months of unremitting pain prior to the hernia repair operation by Dr Buckingham on 30 October 2002 as suggesting something significant occurred in July that year to bring on that marked deterioration in Mr Portors’ health.
As a general principle, the Tribunal relies on the opinions of qualified clinicians in reaching conclusions about the origins and course of an applicant’s injury or disease. If those opinions are contradictory, it must consider a range of factors in determining which opinions, or class of opinions, it will prefer. Those factors include the qualifications and clinical experience of the practitioners, how persuasive is the deductive process they have used to travel from evidence to conclusion, the extent to which their opinions are calibrated against contemporary practice and research in their particular field of medicine, and the extent to which their opinions are rationally and logically defensible under cross-examination.
The Tribunal is not compelled to accept an expert witness’s opinion even if it is not contradicted. It is entitled to examine and test the reasoning an expert has used to reach his or her conclusion. The rationale for this approach was set out by the UK Supreme Court in Kennedy v Cordia (Services) LLP [2016] UKSC 6 at [48] where it observed:
An expert must explain the basis of his or her evidence when it is not personal observation or sensation; mere assertion or “bare ipse dixit” carries little weight, as the Lord President (Cooper) famously stated in Davie v Magistrates of Edinburgh 1953 SC 34, 40. If anything, the suggestion that an unsubstantiated ipse dixit carries little weight is understated; in our view such evidence is worthless. Wessels JA stated the matter well in the Supreme Court of South Africa (Appellate Division) in Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung mbH 1976 (3) SA 352, 371:
“[A]n expert’s opinion represents his reasoned conclusion based on certain facts or data, which are either common cause, or established by his own evidence or that of some other competent witness. Except possibly where it is not controverted, an expert’s bald statement of his opinion is not of any real assistance. Proper evaluation of the opinion can only be undertaken if the process of reasoning which led to the conclusion, including the premises from which the reasoning proceeds, are disclosed by the expert.”
As Lord Prosser pithily stated in Dingley v Chief Constable, Strathclyde Police 1998 SC 548, 604: “As with judicial or other opinions, what carries weight is the reasoning, not the conclusion.”
Commenting on s 135 of the Evidence Act (Cth), which deals with the power of the court to exclude evidence, the Federal Court (per Allsop J) in Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171 made this observation (at [679]):
Parties and their legal advisers should expect the Court to look with rigour upon expert evidence in order to ensure that only relevant opinions, based on relevant expertise and on coherent and ordered assumptions, are put on the court record. Whatever may be the strict requirements of s 79 of the Evidence Act, s 135, in at least other than straightforward cases, demands that the basis of expert opinion be apparent, and that the opinions, in respect of which the witness has expertise, be displayed and apparent. Cross-examination, in particular of a determined and dialectically combative kind, should not be necessary (as to an extent it was here) to shear away the layers of evidence, in order to assess whether such evidence does involve opinions, and if so, what they are and whether they are relevant, in the sense that I have discussed.
The difficulty facing Mr Grey in these proceedings is that the medical evidence is compelling and reasonably cohesive, and its underpinning displayed and apparent, as Allsop J put it. That evidence suggests that a lifting event is very unlikely to have been causative of the hernia. Not only does the evidence point to what was unlikely to have been the cause of Mr Portors’ pain, it also offers a plausible alternative hypothesis of what was more likely to have been the cause of that pain.
The clinical record of pain in the weeks following 10 July 2002 bears a marked resemblance to the record of Mr Portors’ pain in November 2001. He complained to Calvary Hospital on 12 November 2001 of generalised sharp/crampy abdominal pain, together with nausea and vomiting. A few days later he told Dr Black about two weeks of abdominal pain, and vomited in the surgery. Dr Black recorded site central, Tenderjust [sic] above umbi and diagnosed Pain in the umbilical region.
Professor O’Rourke and Dr McGrath thought that his condition at this time might well have been bilial pain. Whatever it was, its symptoms were remarkably similar to the condition Mr Portors complained about in July and early August the following year. In light of the medical evidence, the Tribunal considers that the symptoms Mr Portors experienced in July/August 2002 were the symptoms of a condition other than hernia. Although bilial pain is the most likely diagnosis, it is unnecessary for the Tribunal to make a finding of what that condition actually was.
This is not to say that Mr Portors did not subsequently suffer from a hernia. There is little reason to doubt the accuracy of Dr Lark’s conclusion in September 2002, or of Dr Nugent’s in October 2002, that he was suffering at that time from inguinal hernia. That diagnosis may even have fairly been made in early August that year. But the existence of that condition at about this time is not conclusive as to the question of causation.
In the absence of any other evidence, it might be reasonable to infer that pain arising soon after a strenuous incident might be connected with that incident. In the present case, however, there is other evidence: evidence that the incident was of a character unlikely to cause the pain, and evidence that other factors existed which might account for the pain. In this light, insisting that the incident must have brought on the pain smacks of the logical fallacy post hoc, ergo propter hoc.
For a painful condition to constitute an injury pursuant to s 5A, it need only arise out of, or in the course of, the employee’s employment. There is no requirement that the injury is caused by the employment. However, the absence of a causative event in the circumstances of this case gives rise to a question as to whether Mr Portors’ hernia is in fact an injury or a disease. Without a causative event, it is difficult to identify the point in time at which the hernia – if considered an injury – actually arose, and the temporal connection with employment implicit in s 5A may not be satisfied. Similarly, without a causative event or events it is difficult to see how the hernia – if regarded as a disease – has been materially or significantly contributed to by employment, as required in s 5B.[1] Indeed, Mr Grey accepted that if the Tribunal found the lifting incident in 2002 did not cause or aggravate his hernia, the hernia could not be considered to have arisen out of, or in the course of, his employment.
[1] If Mr Portors' hernia of 2002 was a disease, the necessary contribution by employment is to a material degree, pursuant to s 4(1) of the Act as it stood before the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007.
Other contentions on behalf of Mr Portors
The full bench of the Federal Court in Hannaford set out the circumstances in which a decision-maker might make a latter-day finding of fact that effectively undercut the necessary finding on which an earlier acceptance of liability under s 14 had been made. Conti J described the legal effect of reaching such a conclusion, and in particular its relationship with the original s 14 determination accepting liability (at [59]):
I would therefore conclude, contrary to the decision of the primary judge, that the AAT below was duly empowered, upon the true construction of the SRA Act and in the events which happened:
(i)to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision of Telstra under s 14 of the SRC Act to accept liability in respect of Mr Hannaford’s claim for compensation; and
(ii)to do so in circumstances where the AAT was undertaking its review of whether any compensation should be payable or further payable, for instance under ss 16 and 19 of the SRC Act, and/or under ss 21 and 27 of the SRC Act; and
(iii)to do so in the circumstances further where Telstra’s s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the AAT.
In short, it matters not, upon the true construction of the SRC Act, that there has never been any reconsideration of the determination of Telstra of 8 May 2002 whereby liability under s 14 thereof for Mr Hannaford’s claim originally made on 1 May 2002 had been accepted.
Mr Grey referred to the provisions of s 4(3), which provides that an injury or ailment suffered as a result of medical treatment of an injury itself constitutes an injury under the Act only if
(a) compensation is payable under this Act in respect of the injury for which the medical treatment was obtained
He submitted that, per Hannaford, compensation remains payable to Mr Portors under the Act notwithstanding a finding that he has no further entitlement under particular sections of the Act, and as such he is entitled to compensation for the hernia repair condition, subject to meeting the test in paragraph (b) of the subsection.
Comcare submitted, conversely, that compensation is payable under s 4(3) in respect only of an injury or ailment caused by medical treatment which is medical treatment of an injury, i.e. a compensable injury under the Act. Where a condition does not meet the test of an injury under the Act, medical treatment of that condition cannot be the basis for an entitlement to compensation. Additionally, Comcare submitted that even if a condition arising out of medical treatment in these circumstances could be regarded as itself a compensable condition, it is still necessary for an affected employee to establish Comcare’s liability under s 14 for that condition arising out of medical treatment. Here, Mr Portors has never made a claim for liability in respect of the hernia repair condition. The question of liability for, or compensation in respect of, the hernia repair condition is simply not before the Tribunal, it was submitted.
With respect to the first of Comcare’s contentions, the Tribunal, on balance, prefers the reading of s 4(3) proffered by Mr Grey. On the one hand, accepting Mr Grey’s reading would lead to the seemingly anomalous outcome that, subsequent to a Hannaford determination, an applicant would have no further entitlement to compensation for the originally-accepted condition but would still have an entitlement for an injury said to be secondary to, or a sequela of, that condition. That may or may not have been the intention of Parliament in enacting the subsection.
On the other hand, the Federal Court in Hannaford does quite explicitly say that a reassessment of the findings of fact on which a s 14 determination of liability has been made (falling short of a reversal of that determination pursuant to s 62) preserves Comcare’s liability to the employee under s 14: see for example Conti J at [57]. If that liability is preserved then there must still be an injury as referred to in s 4(3).
It is unnecessary for the Tribunal to resolve this question, however, because the Tribunal accepts Comcare’s submission that an injury arising from medical treatment must be the subject of a separate s 14 determination of liability before compensation is payable. Such an injury is a separate and distinct injury to the injury from which it purportedly derives. That much is clear from the language of s 4(3), which distinguishes an originating injury from a physical or mental injury or ailment arising from medical treatment of that originating injury. Since no claim for liability for that injury or ailment has been made by Mr Portors, the Tribunal lacks jurisdiction to consider a claim in relation to the hernia repair condition.
Mr Grey took the Tribunal’s attention to 4 previous decisions in which the Tribunal found that strenuous activity could cause or aggravate a hernia. Those cases were Cox and Comcare [2006] AATA 521; Isbister and Australian Postal Corporation [2006] AATA 931; Daly and Australian Postal Corporation [2006] AATA 1510; and Townsand K & S Freighters Pty Ltd [2012] AATA 283.
The Tribunal in the present case must make a decision based on the evidence – particularly medical evidence – with which it was faced. It seems that the medical evidence facing this Tribunal was different to the evidence faced by previous decision-makers. Three of the previous decisions – Cox, Isbister and Daly – were decided more than 10 years ago, and Towns more than five years ago. The evidence of Prof O’Rourke to the Tribunal in this case was that there had been a shift in the medical consensus in recent years in relation to the causation of hernia. Whether that is so or not, however, is immaterial. The evidence about hernia causation facing this Tribunal was, as already mentioned, reasonably clear and cohesive, and to a large extent was derived from witnesses put forward by both the Applicant and the Respondent. Earlier but apparently inconsistent decisions of the Tribunal do not absolve me from appraising the evidence specific to these proceedings.
CONCLUSION
Comcare accepted liability for Mr Portors’ hernia condition in October 2002 (and accepted liability for a secondary hernia condition in September 2010). Comcare has satisfied the Tribunal, on the balance of probabilities, that the factual basis on which those decisions were made should now be set aside in favour of a different factual finding. The effect of reaching that state of affairs is that the Tribunal can be satisfied Mr Portors did not suffer a workplace injury in July 2002. His employment did not cause him to suffer the hernia, nor did it aggravate a hernia condition. It follows that any condition arising out of hernia repair surgery cannot be an injury for the purposes of the Act. Without a workplace-derived hernia condition, the other links in the causation chain are useless in establishing an entitlement to compensation. The one qualification to this conclusion is that a claim for the hernia repair condition may have been successful, pursuant to s 4(3), had Mr Portors made a separate claim under s 14 for that condition.
The effect of such a conclusion does not disturb Comcare’s liability under s 14 of the Act for Mr Portors’ accepted hernia condition. However it facilitates a determination that Comcare has no further liability to pay compensation under ss 16 or 19 in respect of that condition: per Conti J in Hannaford at [59].
Accordingly, the Tribunal affirms the determination of 2 June 2016 that Mr Portors has no present entitlement to compensation under the Act for his accepted condition of inguinal hernia, without mention of obstruction (bilateral) and umbilical hernia, without mention of obstruction.
I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries.
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Associate
Dated: 13 November 2017
Date(s) of hearing: 23 and 24 October 2017 Date final submissions received: 24 October 2017 Counsel for the Applicant: Leo Grey Solicitors for the Applicant: Gabbedy Milson Lee Counsel for the Respondent: Peter Woulfe Solicitors for the Respondent: McInnes Wilson Lawyers
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