Smith and Comcare
[2014] AATA 28
•22 January 2014
[2014] AATA 28
Division GENERAL ADMINISTRATIVE DIVISION File Number
2010/2489
Re
Lawrence Smith
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 22 January 2014 Place Canberra The Tribunal affirms the decision under review.
..........................[sgd]..............................................
Mr R G Kenny, Senior Member
WORKER’S COMPENSATION – osteoarthritis of right hip – decision to reject the claim upheld by Tribunal at first hearing – appeal to Full Federal Court allowed and matter remitted to Tribunal – no material contribution by employment as meat inspector – decision affirmed.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss. 4, 14
Smith v Comcare [2011] AATA 662
Smith v Comcare [2012] FCA 502
Smith v Comcare [2013] FCAFC 65Smith v Comcare [2013] AATA 796
REASONS FOR DECISION
Mr R G Kenny, Senior Member
22 January 2014
Under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”), Lawrence Smith (“the applicant”) claimed compensation in relation to “right hip” and “nerve injury affecting right foot (occurred during hip replacement surgery)”. He alleged that this was related to his employment by the Commonwealth as a meat inspector from 1983 until 2008. On 10 December 2009, Comcare determined that there was no liability for conditions diagnosed as “osteoarthritis-pelvis”, “aseptic necrosis of bone (avascular necrosis)” and “injury to other & unspecified nerves-partial sciatic nerve palsy”. That determination was affirmed in a reviewable decision on 6 May 2010. On further review by the Administrative Appeals Tribunal (“the AAT”), the parties agreed that the relevant ailment for consideration was the aggravation of the applicant’s osteoarthritis of the right hip. The AAT affirmed the decision in relation to that ailment on 28 September 2011[1].
[1] Smith v Comcare [2011] AATA 662.
An appeal by the applicant to the Federal Court was dismissed on 18 May 2012[2]. On 28 June 2013, the Full Federal Court upheld the further appeal and remitted the matter to the AAT for further consideration and determination according to law[3]. The matter is to be determined without further evidence and on the basis of written submissions tendered by the parties[4].
[2] Smith v Comcare [2012] FCA 502.
[3] Smith v Comcare [2013] FCAFC 65 (per Buchanan J, Greenwood J agreeing; Bromberg J dissenting)
[4] Smith v Comcare [2013] AATA 796.
ISSUE
The majority of the Federal Court determined that it was not sufficiently clear in the AAT decision that the whole of the period of the applicant’s Commonwealth employment from 1983 was taken into account in assessing material contribution to his ailment. Rather, it determined, the AAT may have been distracted by its finding that the ailment had its onset in 1997 and may only have considered such contribution during the few years prior to 1997.
Mr John Mrsic, for the applicant, submitted that the relevant period of employment for the applicant’s claim was from 1983 until 1993, rather than, as submitted at the initial AAT hearing, from the whole of his Commonwealth employment from 1983 to 2008. In particular, this was because of his duties, in those years, as they related to the inspection of mutton at Forbes and, until 1993, at Wagga. He submitted that the applicant, in his statement, had described his duties in relation to mutton inspections at Forbes or Wagga but had not been cross-examined on these at the hearing. He submitted that there was medical evidence that the mutton inspection chain was the most significant factor in the aggravation of the applicant’s hip ailment. Mr Mrsic referred to the various studies which were taken into evidence at the initial AAT hearing and submitted that these had no relevance to the applicant’s case because they were concerned with causes of osteoarthritis of the hip rather than the cause of an aggravation of that condition.
Mr David Richards, for the respondent, submitted that the AAT had given consideration to the whole period of the applicant’s employment with the Commonwealth. He referred to the evidence summarised in the AAT reasons in relation to the applicant’s duties at both Forbes and Wagga. Because such consideration was given, it was sufficient, he submitted, for the AAT to confirm this and to affirm the decision under review. In the event that it did not do so, he submitted that there was no evidence of material contribution to the applicant’s ailment from 1983 to 1993 so that, in that case, the decision under review ought to be affirmed.
CONSIDERATION
In the reasons published in the initial decision, I set out the aspects of the applicant’s work at Forbes and at Wagga in relation to his inspection of mutton carcases and other duties as follows:
13. For sheep, three stations were involved: fronts, viscera and final inspection. Mutton inspection was the most difficult because the process was faster than for beef and required more repetitive bending and twisting. This was particularly so for the fronts because these were hung very low.
18. [At Wagga], there was no inspection of pigs and Mr Smith spent about half of his time each on beef and mutton until 1993 and then dealt only with cattle. He was assigned regular overtime hours until 1993. He continued to undertake hygiene inspections and load out duties about once per week until about 2000 when meat inspectors were relieved of those functions. From 1993, Mr Smith worked overtime on about 10 to 12 Saturdays per year.
In his statement, the applicant wrote that, at Forbes, the beef viscera were presented for inspection in a wheel barrow and that this involved him in more bending and stooping than when a conveyer table was operating. In particular, it necessitated lifting the livers, of 6 to 10 kg, out of the barrow to turn them over. However, this changed in 1983 when the barrows were replaced with a conveyer table for the beef viscera. Nevertheless, he wrote that the mutton inspection had always been the more difficult as it was faster and involved a lot more repetitive twisting and bending even though the mutton viscera were presented on a conveyer table. These were not as heavy as beef viscera but the table was low and he had to bend to turn the viscera over. The applicant, in his statement, described his mutton inspection duties at Wagga as worse than at Forbes in terms of speed, repetitiveness and the amount of twisting and bending involved, because the product was presented at a lower level. Also, he said that sheep were older at Wagga so there was more pathology to be removed. He described the mutton chain as the most strenuous he had worked at in any meat works and said that he dreaded being allocated mutton duties because it caused him to feel a niggling pain in the right hip which would happen every day and he would rest because of the pain.
Clearly, on those descriptions, the applicant regarded the work associated with inspection of mutton at Forbes and Wagga as more onerous for him than were his beef-related duties. In the initial decision, I noted the applicant’s evidence that his duties were more onerous prior to 1993 when he was involved with inspection of mutton as well as beef[5]. However, my finding in the initial decision was that the evidence before me attributed the applicant’s hip condition to heavy lifting rather than the types of movement described by the applicant in respect of his inspection duties. As I understand it, that finding was not called into question by the Full Court.
[5] [2011] AATA 662 at paragraph 81.
I have noted Mr Mrsic’s submission concerning the studies which were in evidence at the initial hearing. Interestingly, no objection was made and no such submission was made by him in relation to this evidence at the initial hearing. I do not accept his submission that the studies have no relevance to the applicant’s claim. In the published reasons, I provided the following summary of these[6]:
“Occupational activity and the risk of hip osteoarthritis” by Cooper et al noted increased risk to farmers but considered that it was “currently unclear whether the excess risk might be found in other heavy manual workers, for example construction workers and labourers”. It referred to a British study which found hip osteoarthritis was “related to occupations which entailed regular heavy lifting (for example, the daily moving of weights greater than 25 kg by hand), prolonged standing, and walking over rough ground”.
“Osteoarthritis of the hip in women and its relation to physical load at work and in the home” by Vingard et al concluded that high physical loads at work and in the home up to the age of 50 seem to be risk factors for development of severe osteoarthritis of the hip in women.
“Osteoarthritis of the Hip and Occupational Lifting” by Coggan et al concluded that there was a strong case for regarding hip osteoarthritis as an occupational disease in men whose work involved prolonged and frequent heavy lifting. It noted that risk was elevated in those who regularly lifted weights of 10kg or more.
“Influence of Work on the Development of the Hip: A Systemic Review” by Lievense et al concluded that there was moderate evidence of a positive relationship with lifting heavy weights of 25 kg or more.
“Hip osteoarthritis; influence of work with heavy lifting, climbing stairs or ladders, or combining kneeling/squatting with heavy lifting” by Jensen concluded that there was moderate evidence of a relationship between osteoarthritis hip and lifting where the burden was at least 10 to 20 kgs for at least 10 to 20 years.
“Risk factors for the development of hip osteoarthritis: a population-based prospective study” by Juhakoski et al concluded that heavy physical stress at work and major musculoskeletal injuries are associated with an increased risk of developing clinically diagnosed hip osteoarthritis. It also found that heavy manual labour proved to be a significant predictor of the development of hip osteoarthritis. There, heavy manual work was defined as “either mostly standing work involving much lifting of light objects or lifting and carrying heavy objects...”
“Associations of Occupational Tasks with Knee and Hip Osteoarthritis: The Johnston County Osteoarthritis Project”: by Allen et al concluded that, for hip osteoarthritis, a particularly strong and consistent association was observed for lifting tasks with the strongest and most consistent evidence being for an overall heavy physical workload and heavy lifting.
[6] Ibid at paragraph 78.
Referring to those studies and the medical reports adduced in evidence, I wrote:
79. The majority of those studies and, indeed, the medical reports in evidence support the need for heavy lifting in employment in order to have an association with hip osteoarthritis. The Juhakoski report also implicated light objects but only in the context of “much lifting” thereof. Dr Browne, who implicated the employee’s flexed position to be relevant, also required that to be done in the context of heavy lifting. His evidence in relation to the DVD was that he observed no lifting. I am satisfied that Mr Smith’s meat inspection duties at Wagga did not involve him in heavy lifting and that the only lifting of any moment was in relation to the turning of items at the viscera table. Even in that regard, the motion was more one of quickly flipping the item over rather than of lifting. I am satisfied that Mr Smith’s inspection duties at Wagga did not make a material contribution to the aggravation of his hip osteoarthritis.
In the initial hearing, I had before me the evidence of the applicant’s duties from 1983 to 1993 at Forbes and Wagga. On that evidence and on that relating to his subsequent duties, I am satisfied that there was no material contribution from that employment to the aggravation of the applicant’s osteoarthritis of the hip and that, accordingly, that ailment is not a disease or injury as those terms are defined in s 4 of the Act. It follows that there is no liability under s 14 of the Act for Comcare to pay compensation to the applicant for that ailment.
DECISION
12.The decision under review is affirmed.
I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member .................................[sgd].......................................
Associate
Dated 22 January 2014.
Heard on the Papers
16 December 2013
Counsel for the Applicant Mr John Mrsic Solicitors for the Applicant T D Kelly and Co Counsel for the Respondent Mr David Richards Solicitors for the Respondent Dibbs Barker
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