Portors and Comcare (Compensation)

Case [2017] AATA 2166

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

  1. 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.

  2. 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

  3. 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.

  4. 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.

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AGLC
Portors and Comcare (Compensation) [2017] AATA 2166
Case
[2017] AATA 2166
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Portors against a determination by Comcare that he had no present entitlement to compensation for medical expenses or incapacity payments under sections 16 or 19 of the relevant Act. Comcare had initially accepted liability for Mr Portors' inguinal hernia condition in 2002, and later for an umbilical hernia as a secondary condition. However, by a determination dated 8 May 2015, affirmed on reconsideration on 2 June 2016, Comcare found that Mr Portors had no present entitlement to compensation for these accepted conditions. Mr Portors sought review of this decision by the Tribunal.

The legal issues before the Tribunal were whether Mr Portors suffered a workplace injury on or about 10 July 2002, and if so, whether the subsequent hernia repair condition constituted an injury pursuant to sections 4(3) and 5A of the Act, thereby entitling him to compensation. Comcare contended that Mr Portors never suffered an injury pursuant to the Act, and consequently, he had no present entitlement to compensation.

The Tribunal's reasoning focused on assessing the evidence, particularly the medical evidence, to determine if Mr Portors' accepted hernia condition arose out of, or in the course of, his employment. Mr Portors claimed he felt sharp groin pain immediately after lifting a heavy table on 10 July 2002, which he argued established a causal link to a workplace injury. However, the Tribunal found no corroborating evidence for this assertion. Despite consulting multiple medical professionals in the month following the incident regarding abdominal pain, none of their clinical notes or reports mentioned groin pain. The Tribunal considered this significant, as medical evidence suggested that pain from an inguinal hernia caused by lifting would typically manifest sharply and immediately in the groin region. The absence of any record of groin pain by multiple healthcare providers led the Tribunal to conclude, on the balance of probabilities, that Mr Portors did not suffer a workplace injury in July 2002, nor did his employment cause or aggravate a hernia condition.

Consequently, the Tribunal affirmed Comcare's determination of 2 June 2016, finding that Mr Portors had no present entitlement to compensation under the Act for his accepted hernia conditions. The Tribunal noted that while a claim for the hernia repair condition might have been successful under section 4(3) had a separate claim been made under section 14 for that specific condition, this did not alter the outcome regarding his entitlement to compensation under sections 16 or 19 for the original hernia condition.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.