Smith and Comcare
[2011] AATA 662
•28 September 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 662
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2489
GENERAL ADMINISTRATIVE DIVISIO.N ) Re LAWRENCE SMITH Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr R G Kenny, Senior Member Date28 September 2011
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
............................................
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – Employment as meat inspector – Hip osteoarthritis – Timeliness of notice of injury – No prejudice to the respondent by delay - No material contribution by employment - Respondent not liable to pay compensation or provide medical treatment to the applicant for incapacity or impairment – Decision affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 7, 14, 53, 54
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Comcare v Canute (2005) FCR 232
Comcare v Luck (1999) 29 AAR 403
Comcare v Sahu-Khan (2007) 156 FCR 536
Pacific Manning Company Pty Ltd v Barton (2003) 74 ALD 1REASONS FOR DECISION
28 September 2011 Mr R G Kenny, Senior Member BACKGROUND
1. Lawrence Smith claimed workers’ 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 as a meat inspector with the Australian Quarantine and Inspection Service (AQIS) and its predecessors. Mr Smith contended that these injuries resulted from the “nature and conditions of employment over some 30 years” and were “first noticed early 2007”. On 10 December 2009, Comcare determined that there was no liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) for conditions diagnosed as “osteoarthritis-pelvis”, “aseptic necrosis (avascular necrosis)” and “injury to other & unspecified nerves-partial sciatic nerve palsy”. That determination was affirmed in a reviewable decision on 6 May 2010.
LEGISLATION AND ISSUES
2. For Mr Smith, Mr John Mrsic submitted that the osteoarthritis of the right hip was a constitutional condition which was aggravated by Mr Smith’s duties as a meat inspector and that his aseptic necrosis-avascular necrosis and his partial sciatic nerve palsy resulted from right hip replacement surgery in 2008. Mr David Richards, for the respondent, agreed with Mr Mrsic that osteoarthritis of the hip was a disease under the Act and that the Tribunal’s focus should be that disease rather than the two consequential conditions. This was on the basis that, if Comcare is liable to pay compensation under the Act for the hip condition, the other matters would be the subject of a subsequent determination by Comcare. Mr Richards submitted that there was no contribution by Mr Smith’s employment to aggravation of his hip osteoarthritis.
3. For the reasons agreed to by Mr Richards and Mr Mrsic, I am satisfied that the only matter before me is whether Comcare is liable to pay compensation for aggravation of Mr Smith’s hip osteoarthritis under s 14 of the Act.
4. An issue for the Tribunal is the timing of the onset of the disease. To that end, s 7(4) of the Act reads:
(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
5. For the purposes of that provision, Mr Mrsic submitted that the aggravation of the hip osteoarthritis should be taken to have been sustained in 1990 or, alternatively, in 1997. Mr Richards submitted that the evidence pointed to an onset in 1997.
6. Another issue for the Tribunal relates to the time-frame within which notice of Mr Smith’s claim was given by him to Comcare. Mr Smith’s claim form was dated 19 January 2009 and was received by Comcare on 4 August 2009. Issues relating to giving notice and making a claim are provided for in s 53 and s 54 of the Act which, in so far as relevant, read:
53 Notice of injury or loss of, or damage to, property
(1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware of the injury; or
…(3) Where:
(a) a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.
54 Claims for compensation
(1) Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.
(2) A claim shall be made by giving the relevant authority:
(a) a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and
(b) except where the claim is for compensation under section 16 or 17—a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph.
(3) Where a written claim, other than a claim for compensation under section 16 or 17, is given to a relevant authority under paragraph (2)(a) and the claim is not accompanied by a certificate of the kind referred to in paragraph (2)(b), the claim shall be taken not to have been made until such a certificate is given to that authority.
(4) Where a claim is given to Comcare, Comcare shall cause a copy of the claim to be given to:
… (b) in any other case—the principal officer of the Entity, Commonwealth authority or licensed corporation in which the employee was employed at that time.
(5) Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.
7. Mr Richards submitted that Mr Smith did not give notice of his hip condition as soon as practicable after he became aware of it; that treating Mr Smith’s notice as sufficient would prejudice Comcare; and that the failure to give appropriate notice was not due to Mr Smith’s ignorance, mistake or any other reasonable cause. Mr Mrsic submitted that no prejudice had been demonstrated to Comcare as a result of the timing of lodgement of the claim and that, in any event, there was reasonable cause for the delayed lodgement.
8. In the event that Mr Smith’s claim complied with the statutory requirements, the final issue for the Tribunal is whether Comcare is liable, under s 14 of the Act, to provide rehabilitation and to pay compensation to Mr Smith for aggravation of a disease which has resulted in incapacity for work or in impairment.[1]
[1] See s 14(1) of the Act.
9. The Act was amended with effect from 13 April 2007 but it is not in dispute that the Act as it read prior to amendment is relevant in this case.[2] Relevant definitions set out in s 4(1) of the Act read.
[2] See the s 42 in Sch 1 of the Safety, Rehabilitation and Compensation Act 2007 (Cth) (Act No 54 of 2007).
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
10. Mr Mrsic submitted that the aggravation of Mr Smith’s hip osteoarthritis was contributed to by the nature of the duties he performed as a meat inspector. In particular, this was because of the need, over many years, for him to move and lift parts of animal carcases while bending forward to do so and the repetitive nature of turning frequently to sterilise and sharpen his knives. Mr Richards submitted that the medical opinion was that such activity as carried out by Mr Smith would only contribute to osteoarthritis if it involved heavy lifting and that this was not the case with Mr Smith’s meat inspection functions.
EVIDENCE
Mr Smith
11. After finishing his schooling in 1968, Mr Smith commenced work as a labourer at Forbes abattoir. He became a slaughterman in 1972 and a meat inspector in 1977. In 1980, Mr Smith performed meat inspection duties at Blayney for 12 months and then at Forbes until 1986. He was based at Wagga Wagga with Cargill Beef from 1987 until 2008.
Forbes and Blayney
12. At these abattoirs, inspection was conducted on cattle, sheep and pigs. Typically, Mr Smith worked for 9½ hours per day for 5 days each week with a 20 minute morning tea break and an hour for lunch as well as rostered overtime work. Inspection of cattle was rotated through separate stations for viscera, heads, carcasses and final inspection with 30 minutes at each station. Initially, at Forbes, viscera were presented in a wheelbarrow which required Mr Smith to bend and stoop to complete the inspection. At Blayney, the viscera were placed on a bench as part of a chain but some stooping to complete the inspection was still required. Lifting of the heavier components such as the livers, which weighed from 6 to 10 kg, was also needed in order to turn them over for full inspection. Each carcass was suspended from a rail by a hook and, to inspect their full length, a ladder was used. The carcass had to be manipulated by rotating it and this required considerable force, especially if the hooking gear was not maintained properly. Mr Smith described inspection of heads as the easiest task.
13. For sheep, three stations were involved: fronts, vicera 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.
14. For pigs, viscera inspection was made difficult by the weight of the organs which required lifting to roll them over in order to inspect them completely. Inspection of pig heads was made difficult because they remained attached to the carcass and hung very low necessitating bending to undertake the inspection.
15. Mr Smith said that he developed a “crook right hip” towards the end of the 70s although he could not recall a particular incident which was responsible. He saw a Cooma doctor, whose name he has forgotten, but he recalled the doctor coming to his motel to render an injection which settled the hip pain.
16. From 1981 to 1986, at Forbes again, improved procedures included a conveyor belt for beef viscera inspection. He felt “niggling problems” in his right hip and groin area. He did not report these to a doctor but would sometimes take Panadol for the pain which would settle down at the end of the working day.
17. When not involved in meat inspection, Mr Smith would conduct ante mortem inspections of pigs, sheep and cattle which required bending to inspect the under parts of their bodies. He also did hygiene inspections of the abattoir. This required bending to look under tables and stands and down chutes. He also performed overtime during which he would walk around the premises placing seals on the doors and, on Saturdays, he would do “load out” duties which involved inspecting animals as they were loaded onto trucks.
Wagga
18. Here, 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.
19. Mutton inspection was more difficult at Wagga than at previous abattoirs because of the higher speed and increased level of bending and twisting involved. There was either a lower chain or higher work platform such that bending was to a greater degree. The sheep tended to be older which meant a greater degree of pathology and contamination had to be removed. Mutton duties increased Mr Smith’s niggling pain and he would need to rest for an hour or so after coming home from work.
20. Beef inspection at Wagga was undertaken at three stations: heads, viscera and carcasses in a ten hour shift. Initially, he worked for five days with overtime on some Saturdays. In 2006, the abattoir moved to ten hour shifts on four days per week. Mr Smith worked with two or three other inspectors and they would each spend a period of 60 minutes at the viscera table and 30 minutes each with the heads and carcasses. There was an additional inspector in the roster because of a fourth part to the rotation. This was a break period for each inspector in turn which totalled about one hour per ten hour shift when each inspector was not actually conducting inspections.
21. In 1998, a foot-operated “rise and fall” platform was introduced for carcass inspection. This enabled the inspector to move up and down the carcass without a ladder. The inspector trimmed pathology from each side of the carcass and some force was needed to rotate the carcass. Although Mr Smith agreed that this did not require carrying the weight of the carcass, he said that the force involved was greater than that associated with closing a car door.
22. The viscera station was the most difficult because of the speed of the conveyor, the repetitive bending, reaching and lifting as well as the need to turn and sterilise the knife after completing each animal. Mr Smith said that the lifting was done to assist in rolling the viscera over. He said that, in recent times, additional staff were engaged to assist the inspectors by doing the heavy pushing of product to the inspector which saved him from leaning over to reach the items for inspection. Mr Smith agreed that his stooping involved leaning over the table to less than 90 degrees. He said that inspections at the viscera table were more difficult than depicted in a DVD showing meat inspectors at work at Wagga, produced by the respondent in May 2011.
23. Mr Smith said the heads came to him on a hook on a revolving chain. He was required to excise lymph nodes and cheek muscles and to palpate the tongue. He described the head as being supported on a hook and the easiest rotation as there was no bending. After each head inspection, he turned to wash his knife and hands and sterilise the knife in hot water.
24. Until a few years before he finished, Mr Smith worked in gum boots on slippery concrete floors. Rubber mats have been installed since then but he had many falls on the slippery concrete before this. He recalled one fall at Wagga when he landed hard on his right side on a couple of steps. He saw a duty nurse who applied an ice-pack and he rested for five to ten minutes before returning to work. He believed this was in the early 2000s but he could not recall the specific time and did not see a doctor. Mr Smith agreed that he did not experience lifting of heads at Wagga but that he had been required to do so in his relief duties at other abattoirs. He noted that Dr Sambrook described him as undertaking considerable lifting and twisting of heads and said that Dr Sambrook must have misinterpreted what he told him.
25. While at Wagga, Mr Smith undertook relief duty for about six weeks each year at various other meat works in New South Wales. Inspection was more difficult at those abattoirs because they had older equipment such as non-automated belts and rails meaning that inspectors had to push a carcass along the rail to the next station. This required heavy pushing and twisting. At these abattoirs, viscera had to be lifted as they were not presented on the work table.
Mr Smith’s condition
26. Mr Smith said that his parents and his siblings had not experienced any problems with their hips and that he had no hip problem before he became a meat inspector. He commenced seeing his general practitioner, Dr Renshaw, in 1997 about hip pain. Before that, his only medical consultation had been in the 1970s at Cooma. Dr Renshaw prescribed anti-inflammatory medication but Mr Smith found that this upset his stomach and Dr Renshaw referred him to Dr Paul Miniter in 1997 for an injection to his right hip. He agreed that he paid for the injection himself and said that he was in a health fund for such things. He thought it was a minor matter and that the needle would fix him. Mr Smith was generally able to cope through the late 1990s and early 2000s although he felt increasing hip pain. He said that he had only minor symptoms from his hip prior to 1997. In 2007, he noted a worsening of the pain such that he found it more difficult to cope with work and daily activities. Mr Smith recalled an incident in July 2008 when a motor bike he had been riding stalled and he had to stop it from rolling down a hill. At the time, he experienced right hip pain which settled down over the next week and Mr Smith did not see a doctor. He described this as only a “twinge”, like he had felt at work. He felt positive that the motor bike incident was not responsible for his hip osteoarthritis.
27. Late in 2008, Dr Renshaw referred Mr Smith to orthopaedic surgeon, Dr Warwick Huntsdale, who carried out hip replacement surgery on 9 December 2008 at Wagga Base Hospital. Dr Huntsdale reported that Mr Smith’s condition had deteriorated in the previous six weeks and, while Mr Smith conceded a worsening in the previous few weeks, he said that the overall deterioration was gradual. Mr Smith described his hip as being fine post-surgery but said that he sustained a “drop foot” which has caused him incredible pain. Mr Smith has not worked since November 2008 and was medically retired on 14 March 2010.
The claim
28. Mr Smith said that some of the entries in his claim form were not completed by him and that he was not aware of who made the entries. Mr Smith agreed that he had written “osteoarthritis”, “right hip” but not “nerve injury right foot”, “nerve injury affecting right foot (occurred during hip replacement surgery)”, “nature and conditions of employment over some 30 years. First noticed early 2007.”
29. Mr Smith’s evidence was that he had always been aware that his hip problem was related to his work, including when he saw Dr Renshaw in 1997. He believed he had so advised Dr Renshaw but agreed that he had not reported this to Dr Miniter in 1997. He denied that it was only in January 2009 that he formed the view that it was work related. He agreed that the 2008 Southern Area Health Care admission documents did not inform the hospital that the hip condition was work-related but said that his wife had completed that document and had inserted the reference to “MBF”. Mr Smith said that he wasn’t used to the claim procedure and simply went in for the operation.
30. Mr Smith did not take time off work when he was seeing Dr Renshaw and said that he gave no particular thought to making a compensation claim until he was advised in 2008 that he needed surgery. He hadn’t realised the seriousness of his condition and was not really concerned at the time because of a large amount of sick leave owing to him. Mr Smith agreed that, if he had a work problem with his hip, he should have advised his employer but was confused and concluded that he did not know back in 1997 that he had to do so. However, on three occasions in his evidence he agreed that he knew that he had to lodge a claim form if he had a work injury. Mr Smith said that, after the operation, he realised that he would be off work for a long time and that he would have to claim or else use up all of his sick leave. He believed that there was no concern about being covered for compensation and said that he lodged his claim with the onset of complications from hip surgery. He saw compensation as a last resort and was not aware of any time limits for notifying Comcare of injury or of making claims. As to delay between filling out the compensation claim form and sending it to Comcare, Mr Smith said that he had spent time in hospital and was having problems with his foot and said that he only wanted to get better.
31. Though he initially denied earlier compensation claims, Mr Smith then agreed that he had made at least six previous compensation claims for work-related injuries such as knife cuts to his thumb and fingers and hook damage to his ear. He also claimed in 1988 after a motor cycle accident and did so on that occasion because he had been told that, as the injury occurred on the way to work, he was covered by workers’ compensation. He said that the present claim was different in that, unlike the other conditions, this osteoarthritis was a condition of gradual onset.
32. Mr Smith agreed that he did not put in any incident report in relation to a hip injury and had just kept working until it became severe. He accepted that the claim was dated 19 January 2009 and was received in August 2009. He was unable to say why it was not lodged until then and did not know whether the delay was related to obtaining legal advice.
Other evidence
Mrs Caroline Smith
33. The applicant’s wife, Mrs Smith, was referred to the Southern Area Health Care admission documents which related to Mr Smith’s surgery in 2008. Mrs Smith agreed that she completed this document and that that she made no reference to workers’ compensation. She said that had not looked at that part of the form. She said that Mr Smith had been in a lot of pain and she wanted to fill it out as soon as possible.
Kevin Evans
34. Mr Evans has worked for AQIS or its predecessors since 1973. He is the New South Wales Meat Resource Manager and is responsible for ensuring that abattoir staffing is in line with the Meat Inspection Staffing Standards. This involves him in knowing and understanding the nature and effect of meat inspectors’ duties at various abattoirs including Wagga from 1993 to 2008.
35. Mr Evans described the Wagga abattoir as a fairly big processing plant. The inspection process involves simultaneous inspection of heads, viscera and carcasses by several inspectors. Mr Evans recalled making a DVD recording of the Wagga operations with Robert Hair on 10 May 2011. This was tendered in evidence. Mr Evans also identified a series of photographs that he had taken at Wagga on the day he made the DVD. He said that practices differed from traditional meat inspectors’ duties because, in 2010 as a measure to improve efficiency, approved company persons (ACPs) were engaged to assist inspectors by presenting the material to be inspected in front of the inspectors. He said that, for the purposes of making the DVD, the inspectors depicted were required to conduct the inspection in the traditional way without assistance from ACPs. He agreed that, prior to the ACP appointments, meat inspectors had to reach out for some of the viscera material.
36. Mr Evans had seen meat inspectors working at the Wagga abattoir in 1974 and since 2004. He referred to the “rise and fall” platform which enabled inspectors to view hind and fore quarters of a carcass by reaching out from the platform to twist and turn sides of beef on the swivel hooks. He described head inspection as requiring agility and bending and said that the inspector was required to move with the product to complete the inspection tasks. He said that the viscera positions required the inspectors to bend over a moving table to inspect the various organs and to incise glands. He agreed that viscera had to be turned over but that, in relation to livers, these were not lifted completely from the table but merely rolled over. He said that the inspectors would rotate from station to station.
Robert Brendan Hair
37. Mr Hair has been an Industrial Officer, a Safety Officer and Manager of the Staff Resource Unit with AQIS. He conducted the filming and took photographs on 10 May 2011 with Mr Evans.
Previous claims
38. Included in the evidence was a list of previous compensation claims compiled by the respondent’s solicitor from information provided by the respondent. Its accuracy was not challenged by the applicant. It reveals the following claims and dates of injury: right patella on 24 February 1988; right ear on 24 August 1988; left thumb on 5 September 1989; left index finger on 9 April 1990; fingers on 30 July 1991; and left finger on 24 May 2004.
Medical evidence
Dr Paul Miniter: Orthopaedic surgeon
39. Dr Miniter completed a report on 15 September 1997. He noted that Mr Smith had complained of groin pain and right hip irritability. Dr Miniter felt that Mr Smith had osteoarthritis of the right hip.
Dr Warwick Huntsdale: Orthopaedic surgeon
40. Dr Huntsdale completed reports on 18 November 2008, 25 November 2008, 12 December 2008, 16 December 2008, 23 February 2009, 23 March 2009, 15 May 2009 and 6 April 2010.
41. Dr Huntsdale first saw Mr Smith in 1988 in relation to a fractured patella. He then saw him in 1990 when he had pain in the right groin and low back. Dr Huntsdale had examined his hip at that time but said that it was manageable. He then saw him in 2006 for a shoulder problem. In November 2008, he saw him for his hip condition and recalled that he was limping badly and was in substantial pain. Mr Smith gave no history of a specific injury but told him that there had been a rapid deterioration over the previous six weeks which had caused him to cease playing golf. Dr Huntsdale conducted hip replacement surgery on 9 December 2008 at Wagga. In his reports in December 2008, Dr Huntsdale noted that Mr Smith was complaining of paraesthesia and, in February 2009, he noted some improvement in that regard.
42. In his report of April 2010, Dr Huntsdale wrote that he did not know that there was anything in Mr Smith’s job which may have caused the hip condition to occur. Dr Huntsdale referred to a study on farmers with an increased risk of osteoarthritis hip but said that this related to heavy work on a repetitive basis. Dr Huntsdale confirmed his opinion that, in the absence of heavy work, Mr Smith’s job would not contribute to Mr Smith’s hip condition.
43. Dr Huntsdale could not recall any conversation with Mr Smith about an association of Mr Smith’s hip condition with his work before the hip surgery was undertaken in November 2008. Dr Huntsdale said that, if it had been referred to as a work injury, his normal procedure would be to write a report to the employer outlining the consultation and prescribed treatment and see if it were accepted as work related or not. Dr Huntsdale said that, if Mr Smith was being treated under Workcover, such a reference would have appeared on his hospital documents. Dr Huntsdale said that, because of the complications after hip surgery, he had sent many letters but none of these were to an insurer.
44. Dr Huntsdale agreed that his main concern with Mr Smith in November 2008 was to treat his hip. He said that he took a history from him but there was no reference to a specific incident. He noted that Mr Smith went from some minor hip pain to being barely able to walk in just six weeks and that he was very concerned to make a diagnosis. Dr Huntsdale said that his main concern was in treating Mr Smith but also that it was not fair to suggest that, because he was a treating practitioner, he would not be interested in the cause of the hip problem.
Professor Neil Sambrook: Rheumatologist
45. Professor Sambrook completed reports on 9 March 2010, 10 June 2010 and 6 September 2010. He was unable to give oral evidence or provide a further report for health reasons. In his first report, Professor Sambrook noted that he saw Mr Smith in February 2010. His report included a comprehensive account of the treatment that Mr Smith has undergone in relation to his hip and to conditions which developed subsequent to his hip replacement procedure.
46. Professor Sambrook took a history from Mr Smith including that relating to his abattoir work. This noted references to Mr Smith undertaking considerable lifting and twisting while inspecting the heads as well as considerable lifting, reaching for and twisting various organs at the viscera table and that this included livers weighing 6 to 10 kg. He also noted that Mr Smith frequently turned away from the table to sterilise his knife and that he had worked in abattoirs for some 30 years. He noted that Mr Smith first became aware of pain in his right hip and buttock region in the late 1990s. He referred to an x-ray of the pelvis on 31 July 1997 which reported no evidence of degenerative change in the hips, a right hip injection on 16 September 1997 for relief of pain and an x-ray 26 November 1999 which noted a minor degree of marginal osteophyte formation on both hips but with joint space well preserved. Moderate osteoarthritic change to both hips was noted in an x-ray on 11 November 2008 and this was confirmed by an MRI on 21 November 2008.
47. In his first report, Professor Sambrook referred to a Swedish study which found a prevalence amongst farmers of hip osteoarthritis. He also noted a British study by Coggan et al in which the risk of hip osteoarthritis was related to occupations which entailed regular heavy lifting, such as the daily moving of weights greater than 25 kg by hand with prolonged standing and walking over rough ground. Professor Sambrook conceded that he had seen no study specific to meat workers but he considered that the nature of Mr Smith’s work was such that it would have contributed to his hip osteoarthritis.
48. In his second report, Professor Sambrook again referred to the Coggan study as well as a study by Juhakoski et al which implicated heavy manual work in hip osteoarthritis, where heavy manual work was defined in terms of standing and lifting light objects. Another study identified by Professor Sambrook was by Allen et al which found an increased risk of hip osteoarthritis from moderate tasks such as lifting weights of more than 4.5 kg as well as bending, twisting and reaching activities. Professor Sambrook likened those descriptions to the work activities of Mr Smith.
Dr Christopher Browne: Rheumatologist
49. Dr Browne completed a report on 19 July 2011 after seeing Mr Smith on 7 July 2011. He had read Mr Smith’s statement as to the nature of his abattoir duties. Mr Smith told him that he had acute right buttock pain in the 1970s which settled in a few days and that he had received an injection from Dr Miniter in 1997 for a hip problem. Dr Browne, on asking Mr Smith to indicate the site of the injection, noted that this was made in the buttock region and said that it was unlikely that symptoms were of hip origin. He considered that the onset of osteoarthritis was probably in the late 1990s.
50. Dr Browne observed meat inspector operations on the DVD. He considered that the nature of those duties as displayed on the DVD was less strenuous than Mr Smith had detailed in his statement but, nevertheless, noted that it depicted the work as involving bending forward to manoeuvre meat products especially at the viscera table. Dr Browne agreed that none of the activity he observed on the DVD amounted to heavy work although he considered that the viscera inspection was heavier than any of the other aspects of the process. He conceded that he had not seen any examples of lifting items even at the viscera table. He considered that even rolling over the viscera in a flexed position was sufficient to aggravate a hip condition.
51. Dr Browne was aware that, in his early years, Mr Smith had been required to inspect viscera in a wheel barrow and that this required a greater degree of lifting and bending of the viscera material which he understood could weigh from 6 to 10 kg. He understood from Mr Smith that the mutton inspection had been an arduous process because of the greater speed involved but that he had not been required to inspect sheep carcasses after 1993.
52. He agreed that the main considerations in the inspection process were standing and bending. He also agreed that Professor Sambrook, in his first report, had focussed on heavy activity for the relationship to osteoarthritis of the hip. However, he noted that, in his second report, he referred to a study by Juhakoski et al which reported that heavy manual labour was relevant and that this was defined to include “much lifting of light objects”. Dr Browne also referred to a study by Rosingal in the Journal of Occupational Environmental Medicine in 2005 where there was an association of hip osteoarthritis with lifting or carrying heavy objects and working with the hip in uncomfortable positions.
53. Dr Browne’s opinion was that Mr Smith’s work as a meat inspector did not cause his hip osteoarthritis but that it was responsible for aggravating the condition. His opinion was that the material consideration in Mr Smith’s work was that he was required to lift weights while bending forward such that his hips were in a flexed position at that time. It was this factor, he said, which increased the level of stress to his hip joint because it was in a disadvantaged position.
54. Dr Browne had not been aware that the Mr Smith had seen Dr Huntsdale in 1990 in relation to his hip but considered that this meant that he had experienced some aggravation of his osteoarthritis at that time.
55. Dr Browne had noted the actions of those in the DVD when cleaning their knives and he considered that the frequent turning to the rear to achieve that was not a significant factor in relation to impacting the hip. He considered that the mutton chain was the most significant factor.
56. Dr Browne said that osteoarthritis involved the progressive loss of cartilage which resulted in pain and restricted range of movement in the joint. He said that it could occur spontaneously but that it would probably not be asymptomatic for a period of seven years. He considered that the onset was likely to be in 1997 rather than earlier and related to the duties from 1993 to 1997.
Dr Neil McGill: rheumatologist
57. Dr McGill completed reports on 29 September 2010, 3 February 2011 and 21 May 2011. In reviewing Mr Smith’s condition, Dr McGill referred to various specialist reports from Dr Todhunter, Dr Jude and Dr Redgment who had been involved with treatment of Mr Smith after his hip replacement. He also referred to reports from Dr Huntsdale and Professor Sambrook.
58. Dr McGill first saw Mr Smith in September 2010 and recorded a history of Mr Smith’s abattoir duties. He recorded Mr Smith as advising that he was required to bend forward and reach for items in order to inspect them but that there was no heavy lifting in his work. He also recorded that Mr Smith had not experienced any specific injury to his hip. When Dr McGill saw him, Mr Smith’s complaint was of pain in the lower right leg.
59. Dr McGill referred to several studies in relation to hip osteoarthritis. These were: “Occupational activity and the risk of hip osteoarthritis” by Cooper et al; “Osteoarthritis of the hip in women and its relation to physical load at work and in the home” by Vingard et al; “Osteoarthritis of the Hip and Occupational Lifting” by Coggan et al; “Influence of Work on the Development of the Hip: A Systematic Review” by Lievense et al; “Hip osteoarthritis; influence of work with heavy lifting, climbing stairs or ladders, or combining kneeling/squatting with heavy lifting” by Jensen; “Risk factors for the development of hip osteoarthritis: a population-based prospective study” by Juhakoski et al; and “Associations of Occupational Tasks with Knee and Hip Osteoarthritis: The Johnston County Osteoarthritis Project”: by Allen et al.
60. After reviewing that material, Dr McGill considered the systematic reviews to be the most valid assessment tool and noted that the Lievense systematic review concluded that 10 or more years of farming or lifting weights in excess of 25 kg was associated with hip osteoarthritis. He also noted that the review by Jensen reached a similar conclusion where there was heavy lifting of from 10 to 20 kg for at least 10 to 20 years and also concluded that osteoarthritis was not associated with climbing stairs or ladders. Dr McGill agreed with Professor Sambrook that there was good evidence that physically demanding work continued over many years was associated with increased prevalence of hip osteoarthritis. However, his opinion was that the studies showed that hard physical work involving heavy lifting was needed over a prolonged period. He also concluded that mere repetitive work was not so associated.
61. Dr McGill’s opinion was that the nature of the abattoir work by Mr Smith was not of a type that would increase the likelihood of developing osteoarthritis of the hip. While Dr McGill agreed that the work history recorded in Dr Sambrook’s report was more comprehensive than the one that he recorded, he considered that each report gave a good understanding of the nature of Mr Smith’s work. He also said that he had seen the DVD of the Wagga abattoir, taken by Mr Evans and Mr Hair, and concluded that the activity shown there was not even close to the types of activities which are associated with increased prevalence of osteoarthritis. Dr McGill concluded that Mr Smith’s hip condition was degenerative and constitutional in nature.
62. Dr McGill referred to the report of Dr Browne and his evidence that heavy lifting was not a requirement for the development of osteoarthritis in the hip. He said that there was no study that confirmed that opinion. He also noted Dr Browne’s reference to the greater impact on the hip joint if weight was carried while the hip was in the flexed position, as Mr Smith was from time to time, while bending forward to complete his inspections. He rejected that suggestion on the basis that, when flexed, there would be no greater impact on the hip joint because the surrounding muscles would compensate by taking the additional strain. Dr McGill also dismissed the repetitive turning by Mr Smith to sterilise his knife as being causally associated with hip osteoarthritis.
CONSIDERATION
Onset
63. Dr McGill described Mr Smith’s hip condition as a constitutional and degenerative condition. Mr Smith was treated for a hip problem in 1970 but this settled in a few days. He received an injection in 1997 but Dr Browne’s opinion, based on the apparent site of the injection, was that this was more related to the buttock area than to Mr Smith’s hip. Dr Huntsdale noted complaint of hip pain in 1990 which was manageable at that time. Dr Browne noted that reference and said that the underlying constitutional condition may have demonstrated some aggravation at that time but he considered that this would not have remained latent for another seven years until 1997. His opinion was that the aggravation relevant to Mr Smith’s claim was in 1997. Mr Smith saw Dr Miniter in 1997 for an injection to his hip. Dr Sambrook also recorded a history of onset in the late 1990s when Mr Smith had an injection for pain. I am satisfied that the aggravation of Mr Smith’s hip osteoarthritis is a disease which, in accordance with s 7(4) of the Act, can be taken to have been sustained in 1997.
Notice and claim
64. Mr Smith’s claim is dated 19 January 2009 and was received by Comcare on 4 August 2009. No separate notice was given to Comcare but the claim may also constitute a notice.[3] In 1997, pain in his hip caused Mr Smith to consult Dr Renshaw. He referred Mr Smith to Dr Miniter who administered an injection. Mr Smith continued to experience pain which worsened in 2007 and 2008.
[3] See Comcare v Luck (1999) 29 AAR 403.
65. Mr Smith’s evidence was that he had always realised that his condition was related to his employment. Mr Richards contended that Mr Smith did not relate the hip aggravation to employment until after he had hip surgery in 2008. That time-frame is supported, not only by an absence of reference to employment in the hospital records in 2008, but also by the reference in those records to the matter being dealt with under a private health provider MBF. While I have noted the evidence concerning Mrs Smith’s role in completing hospital documentation, it is significant that Dr Huntsdale did not record any relationship to employment at that time. Mr Smith also used his private health cover for the treatment by Dr Miniter in 1997. I do not accept Mr Smith’s evidence that he was always aware of a relationship of his hip osteoarthritis to employment. I am satisfied that Mr Smith did not perceive that there was a potential relationship between his hip condition and his employment until after he underwent hip surgery by Dr Huntsdale in December 2008.
66. Under s 53(1) of the Act, notice was to be given as soon as practicable after Mr Smith became aware of his injury. He was aware of his hip condition in 1997. If notice was to be given to Comcare as soon as practicable from that date, his claim in 2009 does not satisfy the terms of s 53(1) of the Act. However, Mr Smith did not become aware of the potential relationship between his hip osteoarthritis and employment until December 2008 and it is from that point that s 53(1) of the Act applies.[4] On that basis, there was no unreasonable delay in his completing the claim form on 19 January 2009. However, there was a further unexplained delay of more than six months between the date of completion of the claim form and its receipt as a notice in writing by Comcare. I am satisfied that this was a period sufficient to show that notice was not given to Comcare as soon as practicable after Mr Smith became aware that his claimed condition was potentially work-related.
[4] See Pacific Manning Company Pty Ltd v Barton (2003) 74 ALD 1 at 11.
67. The delay by Mr Smith falls within the requirements of s 53(1)(a) of the Act. However, that provision is read subject to s 53(3) of the Act. This provides that the claim form will be sufficient notice if Comcare has not, by reason of the delay, been prejudiced. In submitting that Comcare was prejudiced, Mr Richards referred to matters such as difficulties in identifying the nature of the work undertaken by Mr Smith prior to 1997, in locating relevant witnesses from that time, the prospects of evidence being lost and for the respondent assuming that no claim would be made.[5] Mr Mrsic submitted that there was abundant evidence in relation to Mr Smith’s treatment as far back as the 1990s, that this had been made available to the respondent and that there was evidence available as to the nature of Mr Smith’s duties as a meat inspector up to the onset of Mr Smith’s hip osteoarthritis. I accept as correct the submission by Mr Mrsic and am satisfied that Comcare is not prejudiced by any delay from treating Mr Smith’s claim in August 2009 as a notice of injury. Accordingly, Mr Smith is not precluded from claiming compensation under s 53 of the Act.
[5] Referring to Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
The DVD
68. The DVD tendered in evidence depicted activities at each of the three stages of inspection at the Wagga abattoir ie for the viscera, the head and the carcass. I have noted Mr Smith’s evidence that there have been some changes to the inspection procedure since he ceased work. The main difference would seem to be the engagement of ACPs. Mr Hair’s evidence was that the inspectors were required to carry out their functions as they would have done in the period when Mr Smith was working there.
69. The viscera table moved slowly from the left to right, as it was faced by the inspectors. Two inspectors were depicted on three or four separate inspections each. They completed their tasks with some bending forward to bring items closer. However this bending was to a minor degree. The only lifting of product was in relation to the livers but this was more in the sense of a sidewards movement to roll the liver over. With the inspector standing erect, this was done quickly and in an apparently effortless manner, assisted by the slipperiness of the table surface, with the inspected item barely leaving the surface of the table. After each inspection, the inspector retreated from the table for a metre or so, turned and rinsed his knife in a sink. This action did not require any bending by the inspector.
70. Inspection of heads and tongues was conducted in conjunction with each other. These were suspended, alternatively, from hooks which moved slowly from left to right. One inspector was depicted performing his duties on several sets of heads and tongues. The procedure displayed no lifting and only a minor degree of forward bending.
71. The final segment showed carcasses which had been cut in half along their spines. These half carcasses moved from left to right suspended by hooks on a conveyor. The DVD depicted an inspector working, in turn, on seven of these half-carcasses. He stood on the rise/fall platform, which he activated to move upwards to access higher parts of the carcass, and reached forward by bending to a minor degree. There was no lifting. The inspector rotated the carcass to inspect the more distant components and this was achieved with no apparent effort.
Relationship to employment
72. Under s 14 and the definition of “disease” in s 4(1) of the Act, Comcare will be liable to provide rehabilitation and to pay compensation to Mr Smith for incapacity for work or impairment from aggravation of hip osteoarthritis if it was contributed to in a material degree by his employment. The requirement that such contribution be material imposes an “evaluative threshold below which a causal connection may be disregarded”[6] so that it “must be more than a mere contributing factor”.[7] In Comcare v Sahu-Khan, Justice Finn described the meaning of “materially” as: “In a material degree; substantially, considerably”[8] and continued:
[6] See Comcare v Canute (2005) FCR 232 at 249-250.
[7] Ibid.
[8] (2007) 156 FCR 536 at para 15.
16. Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) "in a material degree" requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question ("the threshold evaluation");
(iii) whether this will be so in a given case will be a matter of fact and degree.[9]
[9] Op cit at para 16.
73. Support for a relationship between Mr Smith’s hip osteoarthritis and his employment is found in the opinions of Dr Sambrook and Dr Browne. An absence of relationship is found in the reports of Dr Huntsdale and Dr McGill.
74. Professor Sambrook’s reports were based on an understanding that Mr Smith undertook considerable lifting and twisting while inspecting the heads as well as considerable lifting, reaching for and twisting various organs at the viscera table and that this included livers weighing 6 to 10 kg. He found support for hip osteoarthritis and such activity in the Swedish study on occupations where weights of at least 25 kg were lifted regularly on a daily basis. He also accepted a relationship with more moderate lifting of weights of 4.5 kg. Dr Browne completed his report on the basis of Mr Smith’s history of heavy lifting. He conceded that he had not seen any lifting activities by the inspectors in the DVD.
75. Dr Browne was advised that Dr Huntsdale had seen Mr Smith for his hip problem in 1990 and Dr Browne accepted that Mr Smith had experienced some aggravation to his hip at that time. His opinion was that the condition would not have then remained latent for a further seven years and that the aggravation which occurred was likely to be related to Mr Smith’s duties in the late 1990s. He adopted Professor Sambrook’s reference to the study involving lifting weights and also identified a report from Rosingol which associated osteoarthritis of the hip with lifting or carrying heavy objects with the hip in an uncomfortable position. On that basis, Dr Browne considered that Mr Smith’s meat inspection duties contributed to his hip osteoarthritis.
76. Dr Huntsdale’s opinion was that there was nothing in Mr Smith’s job which would have contributed to his hip condition. He noted that a Swedish study on farmers related to heavy work on a repetitive basis and showed an increased incidence of hip osteoarthritis. Dr Huntsdale confirmed his opinion that, in the absence of heavy work, Mr Smith’s job would not contribute to Mr Smith’s hip condition.
77. As noted above, Dr McGill reviewed a range of studies and agreed with Professor Sambrook’s opinion that there was good evidence that physically demanding work continued over many years was associated with increased prevalence of hip osteoarthritis. He took a history from Mr Smith and I am satisfied that this gave him as proper an understanding of Mr Smith’s work practices as that taken by Professor Sambrook. Dr McGill’s opinion was that the nature of the abattoir work by Mr Smith was not of a type that would increase the likelihood of developing osteoarthritis of the hip. In particular, his opinion was that the activity shown in the DVD was “not even close” to the types of activity associated with increased prevalence of osteoarthritis. Dr McGill rejected Dr Browne’s opinion that there was greater impact on the hip joint if weight was carried while the hip was in the flexed position. This was on the basis that, when flexed, there would be no greater impact on the hip joint because the surrounding muscles would compensate by taking the additional strain.
78. A summary of the conclusions in the reports referred to in this matter read:
·“Occupational activity and the risk of hip osteoarthritis” by Cooper et al noted an 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 that 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 undertaken 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 10 kg or more.
·“Influence of Work on the Development of the Hip: A Systematic Review” by Lievense et al concluded that there was moderate evidence of a positive relationship with hip osteoarthritis and 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.
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 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.
80. Mr Smith described a greater degree of heavy work when allocated to relieve at more remote abattoirs. However, there is no evidence specific to the nature of the work at those other abattoirs. In any event, I am satisfied that the short periods of Mr Smith’s allocations to those abattoirs was not such as to make a material contribution to his hip osteoarthritis.
81. On Mr Smith’s evidence, the work at Wagga was more onerous prior to 1993 when he was involved in mutton as well as beef inspections. However, the evidence of Dr Browne and Professor Sambrook was that the aggravation of Mr Smith’s hip osteoarthritis in 1997 was related to his activity in the years immediately preceding that onset.
82. There was no medical evidence which supported a material contribution to Mr Smith’s hip osteoarthritis from repetitive turning by Mr Smith to sterilise his knife or to any specific incident of trauma to the hip. There is no evidence that Mr Smith’s hygiene inspections and load out duties involved any lifting
DECISION
83. I am satisfied that Mr Smith’s employment as a meat inspector did not materially contribute to his hip osteoarthritis. Accordingly, the decision under review is affirmed.
I certify that the 83 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
Signed: ..............................................................
C Baillie, AssociateDate of Hearing 23-24 May, 29 August 2011
Date of Decision 28 September 2011
Counsel for the Applicant Mr J Mrsic
Solicitor for the Applicant T D Kelly and Co
Counsel for the Respondent Mr D Richards
Solicitor for the Respondent Dibbs Barker
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