ROBERT COTTERILL and AUSTRALIAN POSTAL CORPORATION

[2009] AATA 161

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 161

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/0033

GENERAL ADMINISTRATIVE DIVISION		)
Re		ROBERT COTTERILL

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date13 March 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.........[Sgd]........................

Member

CATCHWORDS

WORKERS’ COMPENSATION – claim for bilateral hernia – effects of lifting containers of mail – applicant not suffering from a work related injury - respondent is not liable to pay compensation to the applicant for incapacity or impairment – decision affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 14

REASONS FOR DECISION

13 March 2009 Mr R G Kenny, Member     

BACKGROUND

1.      Robert Cotterill is employed by the Australian Postal Corporation (“Australia Post”) as a mail processing coordinator, grade 2.  On 2 October 2007, when he was based at the Underwood Delivery Centre (“the Centre”), he lodged a claim for rehabilitation and compensation in respect of “Double Hernia”.  He alleged that it occurred as a result of handling a heavy mail bag at the Centre.  On 23 October 2007, the respondent rejected his claim for liability.  That determination was affirmed in a reviewable decision on 14 November 2007.

ISSUES AND LEGISLATION

2. The issue for the Tribunal to determine is whether the respondent is liable, under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”), to pay compensation to Mr Cotterill for an injury which has resulted in incapacity for work or impairment. The term “injury” is defined in s 4(1) of the Act in a manner which includes bilateral hernia if that condition arose out of, or in the course of, Mr Cotterill’s employment.

EVIDENCE

Mr Cotterill

3.      In his evidence, Mr Cotterill described an incident which he believed was the cause of his bilateral hernia.  It occurred while he was working in the forward layout area of the Centre.  This is the area to which mail comes after it has been sorted and processed by other postal officers at the Centre.  In effect, this is the final stage before it leaves the Centre for distribution.  The mail is in bags or other containers called flutes.  On 4 September 2007, Mr Cotterill lifted a bag of mail and immediately felt excruciating pain near his navel and down from there towards the right lower part of his torso.  He believed that the bag was much heavier than the prescribed weight limit for postal officers of 16kg.  At the time, he assumed that the pain on 4 September was a recurrence of a renal colic pain he had experienced with kidney stones some years before.  He left work early because of the pain.  Next day, he was unable to obtain an appointment with his regular medical practitioner, Dr Blaszak, but saw Dr Malik, another medical practitioner in his neighbourhood.  He told Dr Malik of the pain and his belief that it was associated with kidney stones.  Dr Malik did not examine him but referred him to the hospital to have a scan completed.  Some days later, he was seen by Dr Blaszak who, upon physical examination of Mr Cotterill, noted that he had bilateral hernia.  He was referred to general surgeon, Dr Tony Leece, who, in March 2008, completed operative repair of the bilateral hernia.

4.      Mr Cotterill believed that mail bags and flutes at the Centre regularly exceeded the 16kg limit and had observed many in excess of 30kg and one bag which weighed 53kg.  The forward layout area at the Centre also deals with mail that has been processed at other mail centres.  These are sent to the Centre for final dispatch.  Mr Cotterill accepted that there was internal control over the mail in bags and flutes processed by mail officers in the Centre but said there was no such control over those which came from other mail centres.  

David Southall

5.      Mr Southall is Mr Cotterill’s supervisor at the Centre and he gave evidence of the practices there.  The Australia Post workplace health and safety policy was that no employee was to lift bags or flutes which weighed more than 16kg.  He considered that the usual weight of bags and flutes in the forward layout area was up to approximately 10kg.  He would not require an employee to lift items above the 16kg maximum.  While the Centre was unable to control the weight of bags coming into the Centre for processing from various collection points such as mail boxes, that was not the case with the containers of mail which went to the forward layout area as these had been processed on a carousel and sorted according to their respective destinations.  He was not aware of containers weighing more than 16kg but conceded that bags of the unsorted mail might occasionally do so.  He agreed that mail came from outside the Centre directly to the forward layout area but said that these had already been through the sorting processes in other mail centres.

Other evidence

6.      In evidence were various documents completed by Mr Cotterill.  These included his claim form in relation to the bilateral hernia; claim forms for other conditions for which he has claimed compensation in the past; and various incident reports relating to the events which caused the claimed conditions.  In those forms, Mr Cotterill was required to give details of what occurred.

7.      In the incident form for double hernia, dated 2 October 2007, he wrote:

“I cannot say exactly when it happened but upon going to a Doctor on a different matter it was noticed I had a hernia: I have often felt pain in the groin area during work processes”.

8.      In the claim form of the same date, he wrote:

“I cannot say exactly when it happened. First noticed when visiting my Doctor for a kidney stone. Upon examining me he found suspected hernias, confirmed by scan 20.9.7”.

9.      A claim form for a chest injury was completed by Mr Cotterill in October 2002.  There, he wrote that he had been checking the contents of a mail container and conversing with a fork lift driver when another such vehicle approached and shunted the container into his ribs.  An incident form and a claim form relating to a shoulder condition were completed in March 2006.  Mr Cotterill provided a specific description of what he was doing when he injured his shoulder.  He described lifting a half full, heavy bag, its contents comprising six items weighing 5kg each and feeling a tear in his shoulder.  An incident form and a claim form relating to a right wrist condition were completed in December 2001 and 8 April 2004, respectively.  He wrote that he was clearing a jam in a parcel machine when a pneumatic gate closed on his hand.

10.     Dr Malik’s clinical notes for Mr Cotterill’s consultation on 5 September 2007 were in evidence.  They include the following:

“Colic; renal: history of left flank pain … states pain is like niggly and gripping in nature, constant and gets worse from time to time … Pulse: 84 (regular); Temp: 36.9 (Oral); Resp. Rate: 20; BP (Sit): 140/90; Clinically still in pain, … clear chest, sofft [sic] tummy BUT TENDER LEFT ILLIAC AND LEFT RENAL AREAS”.

Dr Malik entered a provisional diagnosis of left renal colic and referred Mr Cotterill to the Logan Hospital.

11.     Also in evidence were Hazard Reports, dated 20 April 2008 and 17 September 2008.  These are completed when an incident occurs requiring corrective action to be taken by Australia Post officers.  They record the hazard as being the delivery to the Centre of bags weighing, respectively, 30kg and 34kg.  Both refer to the bag being found in the carousel area. 

12.     Statements were provided by work colleagues of Mr Cotterill.  They stated that mail bags weighing more than 16kg were regularly received in the forward layout area at the Centre.  They describe incidents involving the handling of items weighing 20kg, 25kg and even up to 30kg.

Dr Tony Leece (general surgeon and endoscopist)

13.     Dr Leece conducted the surgical repair of Mr Cotterill’s bilateral hernia.  He completed a report on 25 August 2008 and also gave evidence.  He recorded the history given to him by Mr Cotterill when he saw him on 12 October 2007.  This was that Mr Cotterill experienced bilateral groin pain which had been present for several months.  He also referred to Mr Cotterill being required often to lift up to 20 or 40kg whilst sorting mail at the Centre.  His opinion was that this repetitive lifting was the substantial cause of his bilateral hernias.  In his report, Dr Leece said that the pain may have been due to his hernia or may have been due to an unrelated cause such as renal colic.  Dr Leece noted that the history given to him was different from that which was given to Dr O'Rourke and he agreed that this may well explain the difference in their conclusions about the relationship of Mr Cotterill’s bilateral hernia with his employment.

Dr Michael O'Rourke (consultant surgeon)

14.     Dr O'Rourke saw Mr Cotterill in May 2008 and completed reports on 25 May 2008 and 18 September 2008.  He also gave evidence.  The history taken by Dr O'Rourke was that Mr Cotterill first experienced pain in September 2007 and that it was in the left iliac fossa.  Dr O'Rourke described this as being the area of the lower left torso above the groin area.  He also noted that Mr Cotterill had passed kidney stones in 2002 and 2005 and that the pain he felt then mimicked that which he felt in September 2007.  He also noted that the scan requested by Dr Malik revealed no stone but that an IVP procedure showed a stone in the lower pole of the left kidney.  Dr O'Rourke said that it was common for a scan not to reveal a stone even when there is one present in the kidney especially where, as in Mr Cotterill’s case, there is a history of Crohn’s disease.

15.     As to the cause, Dr O'Rourke recorded Mr Cotterill as describing “no actual incident at work” and as referring to lifting parcels or containers weighing anything from 16 to 35kg and mail bags weighing from 12 to 40kg.  Dr O'Rourke’s opinion was that the symptoms described by Mr Cotterill were not those normally associated with hernia.  He believed that Mr Cotterill had presented to his medical practitioners in September 2007 with pain associated with a kidney stone and that the diagnosis of bilateral hernia was incidental to that. 

16.     Dr O'Rourke’s opinion was that Mr Cotterill’s hernias were congenital and he referred to research suggesting that some 25% of all males develop such a condition regardless of occupation.  He also considered that there were identifiable factors which may have been responsible for the conditions in Mr Cotterill’s case.  He noted that Mr Cotterill had suffered from Crohn’s disease for which he underwent surgery in 1987 and 1989.  His opinion was that strictures associated with that condition before he underwent surgery would have resulted in a rise in intra-abdominal pressure greater than that associated with lifting weights of 20 to 40kg.  He said that was also the case with the pressure associated with renal colic.

SUBMISSIONS

17.     Mr Cotterill agreed that he had made previous claims for compensation in which he had given more detailed descriptions of the causal relationship between a claimed condition and his employment.  He conceded that he had given different accounts of the onset of the claimed condition and that he should have provided more specific details in his claim form.  He said that he did not know why he had not done so.

18.     Mr Clarke submitted that the evidence given by Mr Cotterill at the hearing should be rejected because it was not consistent with what he told Dr Malik, Dr Leece or Dr O'Rourke.  He submitted that the opinion of Dr Leece should also be rejected on the basis that it relied on an inaccurate employment history of being required often to lift up to 20 or 40kg whilst sorting mail at the Centre.  He submitted that the evidence of Dr O'Rourke should be adopted.

CONSIDERATION

19.     Mr Cotterill claimed that he routinely lifts bags and flutes heavier than 16kg.  He is positioned in the forward layout area towards the end of the mail processing arrangements.  The hazard reports noted above show that heavy bags are received at the Centre at a point before their contents are placed on the carousel for processing.  On Mr Southall’s evidence, I am satisfied that, after the sorting process in the Centre is completed, bags and flutes do not exceed the threshold weight of 16kg.  The evidence of Mr Cotterill’s colleagues is that there are bags heavier than that, even up to 30kg, in the forward layout area and Mr Southall conceded that there may occasionally be bags and flutes over 16kg in that area.  Mr Cotterill’s evidence was that bags come from outside the Centre to the forward layout area and I am satisfied that some of these exceed the 16kg weight threshold and that, from time to time, Mr Cotterill has been engaged in moving them. 

20.     There are many inconsistencies in Mr Cotterill’s evidence.  He said that he was not physically examined by Dr Malik on 5 September 2007.  Dr Malik’s clinical notes show measures of temperature, blood pressure, pulse and respiratory rate.  They also describe a clear chest, soft stomach and tenderness in the left iliac and renal areas.  I am satisfied that these notes could only be written on the basis of an examination.  I also note that the provisional diagnosis was renal colic, a condition associated with his kidney stones.

21.     There are major discrepancies in Mr Cotterill’s evidence concerning pain.  His evidence was that the pain was excruciating.  At the hearing, he indicated the pain was on the right side from the navel down to a point above the groin.  He confirmed this by pointing to the area and agreeing that it was in the area of his appendix.  The description to Dr Malik was that it was on the left side and he noted tenderness in the left iliac and renal areas.  Dr O'Rourke also described pain in the left iliac fossa, the area of the lower left torso above the groin.  Dr Leece described bilateral groin pain. 

22.     Mr Cotterill’s description of the pain was also the subject of differing versions.  He told Dr Malik he had a niggly, gripping pain which was constant and worsened from time to time.  This points to a longer period than had expired since the incident on the previous day.  A long time-frame was also described to Dr Leece who saw Mr Cotterill on 12 October 2007, just five weeks after the incident.  Dr Leece recorded pain for several months.  Dr O'Rourke described pain from September 2007. 

23.     Mr Cotterill’s version of the incident given at the hearing is not consistent with the description in the associated incident report and claim form completed on 2 October 2007, less than a month after it occurred.  In each case, he said that he did not know when it happened.  This was not the first time he had completed such forms and, on previous occasions, he provided relevant detail in order to show a causal link with employment.  I am satisfied that he was aware of the need for detail in those documents.  Dr Malik’s notes make no reference to the lifting incident.  Mr Cotterill did not describe any particular incident to either Dr Leece or Dr O'Rourke.  Further, in the incident report and claim form, Mr Cotterill identified the time when he first noticed the hernia.  This was when he was with Dr Blaszak, being examined in relation to his renal colic. 

24.     I do not accept Mr Cotterill’s account that his bilateral hernia resulted from a lifting incident on 4 September 2007.  There is no medical evidence to support such a connection, which is not surprising as he has not told any of the doctors whose evidence is before me of the incident.  I have accepted that there were occasions when Mr Cotterill lifted bags and flutes which weighed in excess of 16kg and that, at times, 30kg items were encountered.  However, I am not satisfied that he was required to undertake such lifting with the frequency or to the level of 40kg as relied upon by Dr Leece to show a relationship to employment.  In that regard, Dr Leece relied on what he had been told by Mr Cotterill.  That history is not in accordance with the evidence of practices at the Centre.  To that end, I have not placed reliance on the evidence of Dr Leece insofar as it relates to the cause of Mr Johnson’s bilateral hernia. 

25.     I am satisfied that the pain experienced by Mr Cotterill on 5 September 2007 when he saw Dr Malik was not associated with bilateral hernia.  After examining him, Dr Malik made a provisional diagnosis of renal colic.  Dr Leece conceded that the pain may have been due to Mr Cotterill’s hernia or may have been due to an unrelated cause such as renal colic.  Dr O'Rourke’s firm opinion was that the pain Mr Cotterill described was associated not with a hernia but with renal colic from his kidney stone.  I am satisfied that the presence of bilateral hernia was an incidental finding by Dr Blaszak when examining him in relation to renal colic.

26.     Dr O'Rourke’s opinion was that Mr Cotterill’s hernias were congenital and unrelated to his employment.  Dr O'Rourke identified non-employment factors which may have predisposed him to the development of the bilateral hernia.  He considered that Mr Cotterill’s Crohn’s disease and his renal colic would have caused a rise in intra-abdominal pressure greater than that associated with lifting heavy weights. 

27. On all of the evidence before me, I am satisfied that Mr Cotterill’s bilateral hernia did not arise out of, or in the course of, his employment with Australia Post for the purposes of s 14 of the Act. .

DECISION

28.     The Tribunal affirms the decision under review.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member.

Signed:.......................[Sgd].......................................................
  Matyas Kochardy, Research Associate

Date of Hearing  19 February 2009
Date of Decision  13 March 2009
The Applicant was not represented
Counsel for the Respondent    Mr C Clark