Soward v Strop Pty Ltd
[2025] NSWPIC 90
•18 March 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Soward v Strop Pty Ltd [2025] NSWPIC 90 |
| APPLICANT: | Kevin Soward |
| RESPONDENT: | Strop Pty Ltd |
| PRINCIPAL MEMBER: | John Harris |
| DATE OF DECISION: | 18 March 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; abdominal hernias; heavy nature of work; contributing causes to development of hernia included smoking and obesity; journal articles on causes of abdominal and inguinal hernia; relied upon by respondent’s qualified doctor who incorrectly quoted from the articles; articles suggested that heavy repetitive work was a contributing cause to the development of abdominal hernias; opening of abdominal wall is a definite or distinct physiological disturbance and constitutes a section 4(a) injury; Military Rehabilitation and Compensation Commission v May; causal relationship between the heavy lifting and the development of hernia; Badawi v Nexon Asia Pacific Pty Ltd; application of section 9A; other contributing causes including smoking and obesity; temporal relationship and heavy lifting sufficient to constitute a substantial contributing factor; Held – applicant entitled to costs of surgery for repair of hernias. |
| DETERMINATIONS MADE: | The Commission determines: Findings 1. The applicant suffered injury to the abdominal wall causing ventral hernias within the meaning of s 4(a) of the Workers Compensation Act 1987 (the 1987 Act). 2. The employment concerned was a substantial contributory factor to the injury within the meaning of s 9A of the 1987 Act. 3. The treatment proposed by Dr Das is as a result of the injury within the meaning of s 60 of the 1987 Act. Order 4. The respondent pays the costs of and incidental to the surgery proposed by Dr Das (see Application, page 29). |
STATEMENT OF REASONS
BACKGROUND
Mr Kevin Soward (the applicant) was employed by the respondent from August 2021 to February 2023. He alleges that the heavy nature of the work duties caused injury to the abdominal wall and the development of a number of ventral hernias in the midline.
The applicant claims pursuant to s 60(5) of the Workers Compensation Act 1987 (the 1987 Act) the costs of and incidental to the ventral hernia surgery repair proposed by Dr Das.
The matter was listed for arbitration hearing on 5 March 2024 when Mr Bolton of counsel appeared for the applicant and Ms Goodman of counsel appeared for the respondent. The following documents were admitted by consent:
(a) Application to Resolve a Dispute and attachments;
(b) Reply and attachments, and
(c) respondent’s Application to Lodge Additional Documents attaching two journal articles.
There were two other late Application to Lodge Additional Documents filed but not relied upon in the proceedings.
There was no request to call oral evidence.
Counsel were advised that I would not consider material that was not the subject of express submission. There was no objection to this course.
ISSUES/AGREEMENTS
The applicant principally relied on s 4(a) of the 1987 Act based on the allegation that the heavy nature of the work caused or contributed to a tear of the abdominal wall resulting in the umbilical hernias.
The respondent denied the claim based on denials under s 4(a) and s 9A of the 1987 Act. It also denied that the proposed treatment was as a result of the injury within the meaning of s 60 of the 1987 Act.
The respondent accepted that the proposed treatment was reasonably necessary within the meaning of s 60 of the 1987 Act.
The applicant raised an alternative allegation based on s 4(b) of the 1987 Act. However, there were no submissions as to how the injury fell within the meaning of the disease provisions.
If the matter was determined as an injury under s 4(b), the respondent raised defences that the employment was not the main contributing factor to either contracting the disease (s 4(b)(i)) or aggravating etc the disease (s 4(b)(ii)).
EVIDENCE
General practitioner evidence/clinical records
The applicant suffered a lumbar spine injury in the middle of 2022. Records of the general practitioner (GP) from 8 June 2022 describe the applicant’s previous injuries (unrelated to the present application) and working restrictions up until 31 January 2023.
There is no reference to abdominal hernias and/or any associated symptoms prior to the consultation with the GP on 31 January 2023.
A summary of the clinical records of the GP in 2022 and January 2023 show:
(a) 8 June 2022 – applicant had recently moved from Central Coast and was “on workers comp on shoulder”;[1]
[1] Application, p 45.
(b) 6 July 2022 – back pain following work injury with radiation into left hip;[2]
[2] Application, p 46.
(c) 8 July 2022 – off work – plan for part-time hours on restricted duties;[3]
[3] Application, p 47.
(d) 15 July 2022 – back at work on part-time hours and restricted duties;[4]
[4] Application, p 48.
(e) July/August 2022 – various consultations re back and left leg pain;
(f) 4 August 2022 – plan lifting upgrade from 5 to 10kg;[5]
[5] Application, p 50.
(g) 4 August 2022 – right shoulder injury in February 2021;[6]
[6] Application, p 51.
(h) 16 August 2022 - tolerated current capacity in lifting a 10kg well;[7]
[7] Application, p 54.
(i) 13 September 2022 - lifting capacity at 7kg;[8]
(j) 6 October 2022 – reference to lifting cement weighing up to November 2022
20 kg as part of pre-injury duties. Lifting capacity increased from 7kg to 8kg;[9](k) 8 November 2022 - lifting capacity limited at 8kg;[10]
(l) 10 November 2022 - consultations for shoulder and back injury;[11]
(m) 9 December 2022 - prescription refill;[12]
(n) 13 December 2022 - attendances for shoulder, low back and depression;[13]
(o) 14 December 2022 – attendances for bilateral shoulder and low back;[14]
(p) 18 January 2023 - recent flareup of low back pain, naproxen prescribed,[15] and
(q) 25 January 2023 - low back pain - lifting downgraded from 8kg to 6kg.[16]
[8] Application, p 59.
[9] Application, p 60.
[10] Application, p 63.
[11] Application, p 65.
[12] Application, p 66.
[13] Application, p 67.
[14] Application, p 69.
[15] Application, p 70.
[16] Application, p 72.
The applicant first complained of the hernia to the GP on 31 January 2023.[17] The clinical note refers to the applicant “has still been lifting at work” and was prescribed “naproxen 250 mg”. The GP referred the applicant for an abdominal and groin ultrasound.
[17] Application, p 74.
The ultrasound dated 14 February 2023 showed that the applicant has five hernias in the umbilicus/abdominal wall.[18] The ultrasound of both groins did not show femoral or inguinal hernias.
[18] Application, p 28.
On 17 February 2023 the GP referred the applicant to Dr Das for treatment of multiple abdominal wall hernias “arising from his repetitive lifting at work as a truck driver”.[19] The clinical note contains the following:[20]
“Saw me 31 Jan 2023, expressed concerns for umbilical hernia US found multiple abdominal wall hernias DOI - 31 Jan 2023 MOA - repetitive lifting at work as a truck driver I have issued WC Cert today - this is a new claim”
[19] Application, p 27.
[20] Application, p 79.
A certificate of capacity completed by the GP and dated 17 February 2023 noted hernias on the abdominal wall and certified the applicant fit for working full hours with restricted duties involving lifting, pushing and pulling limits up to 4kg.[21]
[21] Application, p 25.
The clinical note of the GP dated 17 February 2023 downgraded the applicant’s duties to three hours per day three days per week with lifting limited to 4kg. That note refers to the back injury and multiple abdominal wall hernias.[22]
[22] Application, p 78.
Dr Das
Dr Amitabha Das, gastro-intestinal surgeon, reviewed the applicant on 15 March 2023 for the multiple ventral hernias in the midline.[23] The doctor noted that the applicant was a truck driver by profession who had been lifting frequently as part of his job and felt abdominal discomfort.
[23] Application, p 30.
The doctor noted that the multiple abdominal wall hernias were visualised on ultrasound located in the midline above the umbilicus. Dr Das recommended management with laparoscopic mesh repair of the hernias.
Dr Das provided an estimate of the surgeons and assistants fees for the hernia repair.[24]
[24] Application, p 29.
Statement
The applicant provided a statement dated 3 December 2024 which relevant provided:[25]
(a) he was born in 1978 and commenced work for the respondent around August 2021;
(b) around late 2022/early 2023 he became aware of pain and swelling in the stomach area. The swelling “became uncomfortable and gradually increased in size”;
(c) prior to the bulge appearing at the end of 2022 the applicant had not had any discomfort or pain and never had any diagnosed hernias;
(d) the applicant consulted his GP “when the bulge became painful and began impacting [his] work”;
(e) the work with the respondent was “physically strenuous and involved heavy repetitive lifting and manual labour involved in loading and unloading goods from my truck as well as securing loads”;
(f) the respondent was a fencing company who manufactured and installed fencing in various locations for both residential and industrial jobs. The type of fences included colour bond, wooden and metal/wire fences. Materials associated with the installation of the fences included pallets of cement;
(g) the truck had a mini crane but could not be used at times due to “height limits” such as where overhead power lines interfered with the crane. Bags of cement weighed at least 20kg each and there would be 80-100kg of cement on each pallet, and
(h) there could be up to 10 deliveries per day, but the days varied depending on where the fencing was installed.
[25] Application, p 2.
Workplace assessment report – pre-injury duties
An initial assessment report dated 30 September 2022 was prepared in response to the applicant’s earlier back injury. The report described the nature of the applicant’s employment duties undertaken in the employ of the respondent up until July 2022.[26]
[26] Application, p 16.
The report noted that the respondent was a family-owned fencing business and provided a variety of fencing products for both domestic and commercial needs. The applicant was employed within a team of truck drivers whose role was to assist with the delivery, loading and offloading of fencing materials.
The demands of the job were described as involving lifting and carrying between 10kg and 15kg constantly and over 15kg occasionally, that is up to one-third of the time. The report noted that the applicant’s employment was “rated as heavy in nature” and he would need to regain a moderate level of physical fitness to return to pre-injury duties.
Qualified opinions
Dr Sethi
Dr Siddharth Sethi, gastroenterologist, was qualified by the insurer and provided a report dated 15 March 2023.[27] The doctor noted a history of lower back injury on 5 July 2022 and the development of multiple hernias which were described as “a stabbing pain in the abdomen” in January 2023. Dr Sethi noted the applicant was prescribed Naprosyn which was not helpful.
[27] Reply, p 1.
Dr Sethi noted that the applicant weighed 112kg with a body mass index (BMI) of 36.5 and was “moderately obese”. The applicant was an ex-smoker who quit in 2017. Past medical history included an appendectomy.
Dr Sethi opined that the hernias developed independently of the employment with any work injury. The reasons were:
(a) males have a lifetime risk of 27% for developing hernias;
(b) hernias are caused by weakness of the abdominal wall muscles;
(c) hernias are not caused by heavy lifting which is accepted by widespread medical and scientific opinion, and
(d) referred to two scientific opinion on the relationship between a single traumatic or strenuous event and the development of a hernia.
Dr Sethi opined that it was unlikely that “lifting a heavy load at his employment caused
Mr Soward to develop an inguinal hernia”. His reasons were:“The hernia was almost certainly pre-existing and had likely been present for several months or years beforehand. I am not aware of any scientific study that is conclusively demonstrated a causal relationship between heavy lifting and hernia development. I note that Mr Soward has moderately severe obesity with a BMI of 36.5. Obesity is well described in the medical and scientific literature to increase the risk of developing hernias. Mr Soward previously smoked cigarettes. Smoking is well described as a risk factor for hernia development in the medical and scientific literature. In my opinion, WorkCover funding for umbilical hernia repair is unreasonable and is not justified given that his employment did not play any causative role in the hernia development.”
Dr Sethi again noted the contributory causes of smoking and obesity which contributed to the hernia development. The doctor concluded that the employment did not play a substantial contributing factor to any current symptoms as the employment played no causative role whatsoever.
Dr Sethi otherwise noted that age-related changes likely contributed to abdominal wall muscle weakness and that there was a very high probability that the injury would have happened around the same time if the applicant had not been in the employ of the respondent.
Accordingly, Dr Sethi described the risk factors contributing to the condition as age, male gender, previous smoking and moderately severe obesity.
Dr Greenberg
Dr Anthony Greenberg, gastrointestinal surgeon, was qualified by the applicant and provided a report dated 31 December 2023.[28]
[28] Application, p 31.
The doctor noted a history of a laparotomy and appendectomy when the applicant was 21 years old. Dr Greenberg noted that there were no post-operative complications, the wound was not infected, and the applicant was able to return to full-time work with an appropriate period of rehabilitation.
Dr Greenberg recorded a history that the applicant commenced work for the respondent in August 2021 and noticed the hernias in early 2023 when he became aware of pain and swelling in the anterior abdominal wall. The doctor recorded the history that the applicant noticed a swelling or bulge in the mid-abdomen at the end of 2022 and over time the swelling became uncomfortable and gradually increased in size. There were no prior bulges or anything to suggest that there was a previous hernia problem.
On examination the applicant weighed 123kg and was classified as being obese with a BMI of 41.4. The examination noted an 18cm abdominal incision due to the previous laparotomy. The doctor identified three palpable hernias along the previous midline incision.
Relevant history included the applicant used to be a smoker consuming up to 30 cigarettes a day until he quit in 2017. Vaping was used as an alternative until May 2019.
Dr Greenberg described a hernia as a “protrusion, bulge or projection of an organ or a part of an organ through the body wall that contains it” in this case the abdominal wall. Ventral hernias occur in the anterior abdominal wall and epigastric and umbilical hernias are primary ventral hernias. Incisional hernias can occur after any type of abdominal wall incision and develop in approximately 10 to 15% of abdominal incision but most commonly occur with midline abdominal incisions.
Dr Greenberg stated:[29]
“Chronic overstretching of the musculo-aponeurotic structures due to increased intra-abdominal pressure (chronic cough, constipation, strenuous exercise/activity, pregnancy etc) or abdominal wall injury can result in a ventral wall hernia.”
[29] Application, p 37.
That paragraph was under the heading “Literature review”. Counsel advised that the referenced literature did not discuss “causation”. Accordingly, it appears that the above paragraph represents Dr Greenberg’s opinion on causation despite the paragraph. I accept that submission as it is consistent with the doctor explaining his opinion in the context of medical literature.
Dr Greenberg noted the pre-existing midline abdominal incision that had been intact because there were no problems for a period of 24 years, and it was “not necessarily a weakness”.
Dr Greenberg opined that the employment had, more likely than not, disrupted the previous midline incision and that the employment which involved “heavy lifting and manual labour … was a causative factor resulting in [Mr Soward] developing a ventral wall hernia.”
Dr Greenberg concluded, without further elaboration, including an absence of discussion of the matters listed in s 9A(2) of the 1987 Act, that the employment was a substantial contributing factor to the development of the ventral wall hernia. Later in the report the doctor noted that the applicant “has a complex dehiscence with the multiple disruption of the previous laparotomy wound”.
Scientific papers
Dr Sethi referenced two scientific papers in his report. These papers were included in the late application filed by the respondent and admitted into evidence.
Abdominal wall and groin hernias as the result of a single strenuous event
This paper was authored by Meagen Stevenson and dated April 2016. It noted a significant association between the years spent in an occupation which required standing for long periods of time (six hours plus) and/or employment requiring heavy lifting and the odds of developing hernias.
The paper noted a significant association between increased BMI risk and suffering a non-inguinal hernia such as an umbilical hernia.
The paper identified that “familial susceptibility, body mass index and physical activities or mechanical loading all seem to be a contributing risk factors for abdominal and groin hernia” although noted that the studies were not able to identify the relative contribution of individual risk factors.[30]
It is highly unlikely that the development of an abdominal wall hernia can be attributable to a single strenuous event – Pathak and Poston
[30] Late Application, p 8.
The paper noted that hernias are related to structural abnormalities in the musculature of the abdominal wall. Historically precipitating factors that hernia included obesity, chronic obstructive lung disease, prostatism, smoking and advancing age although noted that there was little scientific data to support these assertions.
The paper noted that there was little evidence to suggest that a single event can directly lead to the development of the hernia and that reports that suggested repetitive strain affecting heavy manual labourers may contribute to subsequent hernia development whilst others held equally strong opinions that there was no detectable relationship between the nature of work and the development of an abdominal wall hernia.
The discussion noted that “the courts may support a possible causal link between the development of a hernia and repeated strenuous accession at work” citing scientific papers in 1959, 1981 and 1999. The paper concluded that was “very little evidence to support the hypothesis that there might be a causal link between the development of any abdominal wall hernia and a single strenuous event”.[31]
[31] Late Application, pp 29-30.
SUBMISSIONS
The submissions have been recorded. Neither counsel referred to any legal authority.
Both counsel made inaccurate factual submissions, some of which were subsequently withdrawn.
The applicant incorrectly submitted that there was “no reference” by Dr Sethi to the applicant’s previous appendectomy and mid-line scar at the age of 21 years of age as a fundamental reason why that doctor should not be accepted. That submission was subsequently withdrawn.
The respondent incorrectly submitted that the applicant told Dr Sethi that he was on Naprosyn following the discovery of the hernia as this medication was not recorded in the clinical notes. The submission was wrong.[32] The clinical note dated 31 January 2023 records the applicant being prescribed “Naproxen 250 mg BD – previously scripted by me”.[33]
[32] See Application, p 75.2 under the heading of “Medications”.
[33] Application, p 75.
The respondent extensively submitted that the applicant was not working for the respondent when he attended the GP and complained about the hernia on 31 January 2023.
The respondent submitted that the applicant was attending his GP “every single day” in late 2022. That submission was wrong. The attendances are set out earlier. There were regular (not close to daily) attendances in November and early December 2022. There was a substantial gap of attendances with the GP from 14 December 2022 to 18 January 2023.
Otherwise, the relevant submissions have been addressed in the Reasons.
REASONS
The applicant bears the onus of proof on the balance of probabilities.
Factual findings
The applicant relied on the heavy nature of the work duties in the course of his employment with the respondent. The applicant’s evidence is corroborated by the work assessment which detailed the heavy nature of the work duties.
I accept, consistent with the detail in the clinical records, that the applicant was on lighter duties from July 2022 to the first date of complaint on 31 January 2023. That conclusion is based on the detail in the clinical records throughout this period, the workplace assessment report dated 30 September 2022 and the absence of contrary statement discussing the nature of the restricted duties from the applicant.
The clinical history recorded by the GP on 31 January 2023 was that the applicant “has still been lifting at work”. That note is consistent with the applicant performing lifting duties with a maximum restriction of 7 or 8kg which is the noted restrictions by the GP throughout the latter second half of 2022 into 2023.
The respondent’s submission, repeated at various times although eventually withdrawn, was that the applicant was not working as at 31 January 2023 is rejected. That submission is not based on any factual material, inconsistent with the clinical records and contrary to the applicant’s evidence. At one point this submission was purportedly based on a concession from the applicant’s counsel which was never made.
When the respondent’s counsel was directed to refer me to the precise evidence that the applicant was not working at the time of first complaint to the GP on 31 January 2023, the respondent otherwise referred to a history from Dr Sethi that the applicant ceased working on 2 February 2023.[34]
[34] Reply, p 3.
The respondent otherwise discussed the clinical records in some detail to show an absence of complaint prior to that time. This submission was made even though the applicant’s counsel presented the case on the basis that the first complaint to the GP was on
31 January 2023.The respondent submitted that the applicant was seeing the GP “almost every single day at the end of 2022” and complaining of various injuries but with no complaint of abdominal pain or symptoms relating to hernia.
The applicant’s statement is that he saw his GP about the condition when the “bulge became painful and began impacting my work”.[35]
[35] Application, p 1.
The respondent’s submission was that there should have been earlier complaint does not logically affect the applicant’s credit. On 31 January 2023 the applicant complained of the hernia condition whilst still performing work duties. The timing of the first complaint is consistent with the hernia condition gradually worsening and the applicant deciding to seek medical treatment. The fact that the applicant could have complained at attendances earlier in January 2023 does not logically detract from the fact that condition was present and painful on 31 January 2023.
The record of complaint to the GP on 31 January 2023 accords with the applicant’s statement that he first became aware of the condition in late 2022 or early 2023 and the swelling “became uncomfortable and gradually increased in size”.[36]
[36] Application, p 1.
The respondent referred to Dr Sethi’s record that in January 2023 the applicant experienced a “stabling pain” and the word “stabbing” was not used by the GP in the clinical notes.
The clinical note dated 31 January 2023 does not describe the type of hernia pain suffered by the claimant at that time.. Dr Das in March 2023 refers to “abdominal discomfort”. The applicant’s statement refers to the bulge becoming painful and that is why he saw the GP. Dr Greenberg refers to the applicant becoming “aware of pain” in January/February 2023.
This submission has no logical basis to attack the applicant’s credit. The onset of pain can be described in various ways and the records of onset of pain described herein are generally consistent.
The respondent referred to several injuries (back, right shoulder, left hip and depressive disorder) suffered by the applicant in his employment with the respondent. Apart from the fact that the applicant was on lighter duties since approximately July 2022, it was unclear from the submission whether it was asserted that the number of injuries sustained by the applicant raised suspicions of credit.
The injuries to the lumbar spine and the right shoulder are entirely consistent with the heavy work undertaken by the applicant. There was otherwise no contrary evidence that the injuries did not occur in the circumstances where the workplace assessment report and clinical records show that the applicant performed heavy duties until the end of June 2022.
There was criticism by the respondent that Dr Sethi recorded that the applicant reported “developing multiple hernias over the last 6 months” which was inconsistent with the other recorded histories.[37]
[37] Reply, p 2.
It was submitted that I should not accept the applicant’s history to the doctors as there are inconsistency in the applicant’s evidence and that this is “very relevant”.
I do not know why Dr Sethi recorded an incorrect history on the duration of the presence of the abdominal discomfort. It is the only inaccuracy correctly identified by the respondent in what is otherwise a very consistent account provided by the applicant in his statement and the medical records. This is a minor error which may be the applicant’s fault or an error in recording by Dr Sethi. I do not know. However, the error is minor and, in my view, does not detract from the applicant’s credit.
I find that the swelling developed in late 2022 or early 2023, the hernia became painful over a relatively short period, and the applicant then sought medical treatment on 31 January 2023. This finding is consistent with the clinical note, the applicant’s statement, Dr Greenberg’s history and the fact that the applicant sought medical treatment for the condition on 31 January 2023.
The Paric issue
The respondent submitted that the incorrect history recorded by Dr Sethi meant that there was a “Paric” issue undermining the applicant’s case. The problem with this submission is that Dr Sethi did not support the applicant’s case and any factual error in that report could not logically further detract from the applicant’s case.
The respondent submitted that the history recorded by Dr Sethi was incorrect was based on the recorded histories of:
(a) development of multiple hernias over the last six months;
(b) applicant began to experience a stabling pain in the abdomen, and
(c) Naprosyn was prescribed.
The earlier factual findings show that two of three of the submitted “inaccuracies” were not wrong. It is otherwise unclear how Dr Sethi having an incorrect history affects the applicant’s case when Dr Sethi did not support the causal link between employment and the development of the hernias.
The respondent otherwise submitted that Dr Greenberg recorded an incorrect history in that the doctor recorded that:
(a) the applicant noticed the hernias in January/February 2023 and/or noticed at the end of 2022 and there was a slight difference in history;
(b) this history is consistent with clinical note but inconsistent with what he told
Dr Sethi;(c) the applicant was on light duties since July 2022 with restrictions on heavy lifting;
(d) there was no complaint to the GP in late 2022;
(e) that Dr Grenberg did not properly address the notion that the hernias developed along the pre-existing abdominal incision, and
(f) Dr Greenberg did not obtain a history of vaping for two years although conceded that there is no evidence that vaping is relevant to the development of a hernia.
The fair climate (Paric) principles were discussed by the High Court in Paric v John Holland (Constructions) Pty Ltd[38] and recently discussed by the Court of Appeal in Booth v Fourmeninapub Pty Ltd[39] when Leeming JA stated:[40]
“Although a footnote cited the High Court’s decision in Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844 for the reference to ‘fair climate’, in fact that language, deriving from Culver v Sekulich 344 P 2d 146 (1959), a decision of the Supreme Court of Wyoming, was endorsed by this Court’s ex tempore judgment in Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510. The language concerns the degree of accuracy and specificity required when an expert is asked for an opinion on hypothetical facts. In Culver, two men died in a plane crash, and the passenger’s widow sued the pilot’s estate in negligence. Necessarily much of the expert evidence was hypothetical, and in an appeal based on error (rather than rehearing) it was urged that it was wrongly admitted. The passage endorsed by this Court in Paric was at 154:
‘From our analysis of the record, it appears to us that there was some evidence to support every hypothetical question to which objection was made. Such evidence was not always complete, was sometimes hazy as to time, distance, and other vital points but in general furnished a fair climate for the consideration of the views of the expert witnesses.’”
[38] [1985] HCA 58.
[39] [2020] NSWCA 57 at [14].
[40] Bell P and White JA agreeing.
In OneSteel Reinforcing Pty Ltd vSutton[41] (Sutton) McColl JA stated:[42]
“66. In Paric v John Holland Constructions Pty Ltd (at 846) the Court (Mason CJ, Wilson, Brennan, Deane and Dawson JJ) stated:
‘It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence ... to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.’ (emphasis added)
67. Beazley JA discussed a similar issue in Hancock v East Coast Timber Products Pty Ltd (at [70] - [78]), a matter to which the arbitrator referred (at [76]). In that case the employee claimed to have injured his knee when he fell whilst stacking timber in the course of his employment. There were no witnesses to his fall and he did not report the incident. He was off work for a few days after the incident but thereafter continued to work for another two and a half years, save for various periods of sick leave, before remaining permanently off work on sick leave. The employer terminated the employee's employment six months later. The employee claimed that he suffered from permanent incapacity as a result of the injury sustained in the work incident. The employee had also suffered pain in his knee after his fall in a number of non-work related incidents. An arbitrator found in his favour that his employment was a substantial contributing factor to his knee injury and awarded him weekly compensation.
68. The reports of the employee's treating orthopaedic surgeon, Dr Summersell, did not refer to the subsequent non-work related incidents. Beazley JA held (at [88]) that that did not amount to a failure to satisfy the requirement that an expert should ‘identify the facts and reasoning process which he or she asserts justify the opinion’: Hancock v East Coast Timber Products Pty Ltd (at [77]) referring to ASIC v Rich [2005] NSWCA 152; (2005) 218 ALR 764 (at [105]) per Spigelman CJ. In her Honour's view ‘[t]he extent of correspondence between the assumed facts and the facts proved was relevant to the assessment of the weight to be given to the reports’.”
[41] [2012] NSWCA 282.
[42] At [66]-[68].
The observations of Allsop P in Sutton (at [2]) are pertinent. His Honour stated:
“Nevertheless, as the cases discussed by McColl JA (for example, Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43) show, the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material.”
The submissions otherwise incorporate a submission that medical opinion should be rejected based on a lack of reasoning. To the extent that the respondent submitted that
Dr Greenberg’s opinion suffered a from an absence of a recorded fair climate, I refer to the earlier findings that the correct history of the development of hernia generally accords with the factual findings made above.I will later address any deficiencies in Dr Greenberg’s opinion when analysing the respective evidence and making relevant findings on injury and s 9A.
Other causative factors for developing umbilical hernias
A hernia is a protrusion of part of an organ through the body wall, in this case the abdominal wall.[43] The hernias are caused by weakness in the abdominal wall.[44]
[43] Application, p 37 (Dr Greenberg).
[44] Reply, p 4 (Dr Sethi).
The respondent submitted that smoking is a risk factor as explained by Dr Sethi and that
Dr Greenberg did not contradict that opinion. Dr Sethi was aware that the applicant quit smoking in 2017 but still considered it a risk factor. Indeed, Dr Sethi described smoking and obesity as “well described risk factor for the development of hernias”.[45][45] Reply, p 7.
The applicant submitted that smoking ceased in 2017 and that the smoking issue was “less relevant”. No medical opinion was referenced in this submission, and it is rejected.
Both parties accepted, consistent with the journal articles and Dr Sethi’s opinion, that obesity was a risk factor in the development of umbilical hernias. I accept that the applicant’s obesity and prior smoking habits were causative of the development of the hernias. The basis for this finding was Dr Sethi’s opinion, and in part, the journal articles. Dr Greenberg did not provide an opinion contrary to what Dr Sethi concluded.
The respondent submitted that it was “very relevant” that the applicant developed five hernias along the midline incision from the laparotomy surgery undertaken 24 years previously. In those circumstance it submitted that it is consistent with Dr Sethi’s opinion that the condition was independent of the work. The respondent also requested that I use my commonsense in evaluating the causal link between the previous surgery and the development of the umbilical hernias.
The respondent’s submission concerning Dr Greenberg’s absence of knowledge of the position of the hernia with respect to the previous midline laparotomy was incorrect and withdrawn. The submission that Dr Greenberg “hadn’t said very much about it not that he didn’t know about it” had very little weight as a submission. Clearly Dr Greenberg knew about the presence of the previous incision in relation to the present hernia and multiple defects.
The applicant’s counsel was directed to make submissions on this issue and repeatedly referred to the fact that Dr Greenberg noted that the hernia condition was caused by the heavy nature of the work. Counsel was advised that this was not a response to the question and expressed his dissatisfaction to the request. Accordingly, the applicant’s counsel provided no assistance on this issue.
I read Dr Greenburg’s opinion that the previous surgery/mid-line incision was a pre-existing condition and that it may and can be a relevant factor to the development of the hernias. However, Dr Greenberg, whilst acknowledging that the previous surgery was a pre-existing condition explained why it was not causative in the present case. The doctor stated this was because there were no post-operative complications, the wound was not infected, and the applicant had returned to full-time work. Dr Greenberg stated that if a wound became infected than this would result in tissue breakdown and the subsequent, more likely, development of an incisional hernia. Dr Greenberg also referenced the previous surgery as occurring 24 years previously.[46]
[46] Application, p 40-41.
I am entitled to use “commonsense” in evaluating the opinions contained in medical reports. The concept of the use of “commonsense” inferences was discussed in Tudor Capital Australia Pty Ltd v Christensen[47] when McColl JA (as her Honour then was) stated:[48]
“The Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material. In cases where the experts differ, the lay tribunal must apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted, an exercise which cannot be carried out without knowing the essential integers of the expert opinion.”
[47] [2017] NSWCA 260 (Christensen).
[48] At [364]-[368], Mcfarlan JA agreeing at [425].
Dr Sethi did not provide an opinion on this association between the previous laparotomy and the development of the hernia.
Dr Greenberg provided a well-reasoned opinion on this issue. It is clearly a satisfactory well-reasoned opinion in accordance with the principles discussed in Hancock v East Coast Timber Products Pty Limited.[49]
[49] [2011] NSWCA 11 (Hancock) at [86]-[87].
I do not supplement my views based on commonsense as the respondent urged, when the only specialist medical evidence is that, whilst the prior incision can contribute to the development of a hernia, it did not in the present case. I find that the previous laparotomy was not causative or contribute to the injury.
Injury – s 4(a)
I agree with the respondent’s submission that the hernias occurred when the previous laparotomy incision reopened. This is what Dr Greenberg stated when he states that there was a disruption of the previous wound. The hernias then protrude through the abdominal wall.
In Military Rehabilitation and Compensation Commission v May[50] the High Court held that the meaning of injury in that federal compensation legislation was consistent with the meaning in the workers compensation legislation which involved “some definite or distinct ‘physiological change’ or ‘physiological disturbance’ for the worse which, if not sudden, is at least ‘identifiable’”. In Ky v Blue Leaf Food Group Pty Ltd[51] Snell DP applied the analysis in May to the meaning of injury in s 4(a) of the 1987 Act.
[50] [2016] HCA 19 (May) at [45] and [75].
[51] [2016] NSWWCCPD 55 (Ky) at [50]-[64].
The reopening of a previous incision in the abdominal wall is a definite or distinct physiological disturbance for the worse. Dr Greenberg identified three palpable hernias,[52] the ultrasound and Dr Das referred to five hernias.[53] Dr Sethi did not perform an examination as the appointment was undertaken by Telehealth but referred to the ultrasound and described the applicant as suffering from “umbilical hernias”.[54]
[52] Application, p 35.
[53] Application, p 30.
[54] Reply, p 5.
The phrase “arising out of” within s 4(a) of the 1987 Act was discussed by the plurality of the Court of Appeal in Badawi v Nexon Asia Pacific Pty Ltd (Badawi).[55] It is unnecessary to repeat the extensive reasons of the plurality. The plurality approved the passage from Nunan v Cockatoo Island Docks & Engineering Co Ltd[56] when they stated:[57]
“The meaning of “arising out of ... employment” is settled. In Nunan v Cockatoo Island Docks & Engineering Co Ltd [1941] NSWStRp 23; (1941) 41 SR (NSW) 119 in what is sometimes still referred to as the authoritative decision on the phrase the Court (Jordan CJ and Roper J, Nicholas CJ in Eq agreeing) adopted a common sense approach to the application of the phrase, noting that it involved a causative element.”
[55] [2009] NSWCA 324 at [72]-[79].
[56] (1941) 41 SR (NSW) 324.
[57] Badawi at [77] per Allsop P, Beazley & McColl JJA.
The relevant passage in Nunan[58] is:
“As the law now stands, I am of the opinion that when a worker has proved an incapacitating personal injury, then if it appears (1) that the fact of his being employed in the particular job caused, or to some material extent contributed to, the injury, and also (2) that the injury was sustained whilst he was doing the job which he was employed to do or something incidental to it, he is prima facie entitled to compensation; and it is for the employer to show if he can that there is something which disentitles him to compensation, or to full compensation.”
[58] Nunan at 124; applied by Clarke JA in Zinc Corporation Ltd v Scarce (1995) 12 NSWCCR 566 at 570-571. See also Roche DP in Watson (No 2) at [76].
I otherwise mention the requirement for the necessity between the employment and the injury when determining this issue. The plurality stated:[59]
“The necessity for there to be a causal element between the employment and the injury when determining whether a worker sustained injury arising out of employment, has been consistently confirmed by the High Court and this Court: see Tarry v Warringah Shire Council [1974] 48 WCR (NSW) 1 where Hutley JA endorsed the statements of principle in South Maitland Railways Pty Limited v James [1943] HCA 5; 67 CLR 496; Weston v Great Boulder Gold Mines Limited [1964] HCA 59; 112 CLR 30 and Kavanagh v Commonwealth [1960] HCA 25; 103 CLR 547. Glass JA also endorsed the statement of principle as expressed by the Court in Nunan.”
[59] Badawi at [79].
The applicant’s case for the contribution of work since August 2021 until the development of the hernias is based on the heavy nature of the work, the literature and the opinions of
Dr Greenberg and the GP.The opinion of the GP is unexplained and not a specialist opinion. However, it is opinion evidence that is given some but minimal weight without being determinative of the issue. I also note that the clinical records show that the GP was aware of the precise lifting engaged by the applicant both up until July 2022 and after that period.
Dr Sethi relied on journal articles that suggest that it is unlikely that a single lifting incident will not cause an abdominal hernia. The doctor references those articles for support for the proposition that repetitive lifting is not causative of an abdominal injury.
I have earlier identified that the articles support the concept that repetitive lifting can cause abdominal injuries. When asked to address this aspect of the case the respondent’s counsel stated that she had nothing to submit.
The applicant partially attacked the opinion expressed by Dr Sethi on causation because of the reference to an inguinal hernia.[60] However, it is clear from the remainder of the report that Dr Sethi was clearly aware that the applicant sustained abdominal hernias and referred to umbilical hernias throughout his report. The brief reference to an inguinal hernia did not detract from the remainder of his report.[61]
[60] See Reply, p 5.1.
[61] See Reply, p 5.
The error with Dr Sethi’s opinion is that his support for the proposition that heavy repetitive lifting does not cause or materially contribute to the development of abdominal/umbilical hernia is based, at least in a significant part, on journal articles which state the opposite. The articles certainly do not state that repetitive heavy lifting does not contribute to the development of abdominal injuries.
The respondent otherwise challenged Dr Greenberg’s opinion based on an absence of fair climate because the applicant was performing lighter duties since July 2022.
I have earlier made findings concerning the nature of the heavy lifting duties. I accept that the applicant was performing lighter duties since July 2022 with lifting restrictions up to 7-8kg.
Dr Greenberg describes the majority of the work performed by the applicant as a truck driver which also involved manual labour and heavy lifting from August 2021. The report does not, as the respondent correctly submitted, reference the lighter duties undertaken by the applicant since July 2022. The opinion associates the development of the ventral wall hernia to the employment which involved “heavy lifting and manual labour”. That is a correct description for the 11-month period to June 2022. The work after the period is not heavy although lifting weights of 7 or 8kg is not insignificant.
The history recorded by Dr Greenberg is correct for the period up until June 2022. It overstates the position after that period. However, I accept that Dr Greenberg had a fair climate as the report correctly describes the majority of the employment with the respondent.
The applicant is required to show that the employment caused or materially contributed to the development of the hernia. Having rejected the opinion of Dr Sethi on this issue, the matters supporting that the injury arose out of employment are the temporal onset on the hernia in late 2022/early 2023, the heavy work up to June 2022, lighter but still lifting weights up till 8kg from July 2022 to the date of complaint, support from journal articles, the opinion of the GP and Dr Greenberg’s opinion.
For these reasons, I am satisfied that, whilst there are other causes such as smoking and obesity, the employment materially contributed to the development of the hernias in late 2022/early 2023.
Section 9A
The applicant does not satisfy the onus under s 9A merely because the injury arose out of and in the course of the employment.[62]
[62] s 9A(3).
The requirement imposed by s 9A that the employment concerned was a substantial contributing factor to the injury “involves a causative factor”.[63]
[63] Badawi at [80].
The causal connection expressed by the words “a substantial contributing factor” is one that “was real and of substance”.[64]
[64] Badawi at [82].
In Kelly v Secretary Department of Family and Community Services Basten JA stated:[65]
“Indeed, the starting point as identified by the arbitrator, must be the terms of s 9A. The arbitrator, in an entirely conventional fashion, had regard to each of the matters set out in s 9A(2). Although they are described as ‘examples of matters to be taken into account’, some at least are likely to be material in a wide range of cases.”
[65] [2014] NSWCA 102, (at [24] Ward JA agreeing at [35]).
Emmett JA stated:[66]
“The fact of the injury arising out of or in the course of the employment is relevant, but not determinative of itself, since both s 4 and s 9A must be satisfied. Section 9A requires that the employment concerned be a substantial contributing factor to the injury. That use of the indefinite article admits of the possibility of other, and possibly non-employment-related, substantial contributing factors. Whilst the strength of the connection between the employment and the injury is the question in issue, the determination of that question is an evaluative one, leaving a broad area for the personal judgment of the fact finder. Being an evaluative matter involving questions of impression and degree, a finding as to relative contributing factors is a finding of fact (Badawi v Nexon Asia Pacific Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503 at [48]).”
[66] at [46].
The issue of causation in s 4(b)(i) was discussed by Gleeson JA in Secretary, Department of Education v Dawkings[67] when his Honour stated:[68]
“The requirement in s 4(b)(i) of the 1987 Act that applies to ‘disease’ injuries was introduced by the Workers Compensation Legislation Amendment Act 2012 (NSW). A finding that the employment is ‘the main contributing factor to the injury’ involves a more stringent connection with the employment than the requirement that the employment concerned be ‘a substantial contributing factor’, that applied to ‘disease’ injuries prior to the 2012 amendments to the 1987 Act. However, like the requirement in s 9A of the 1987 Act, the requirement in s 4(b)(i) is an evaluative matter involving questions of impression and degree, and it is also a finding of fact.”
[67] [2024] NSWCA 4 (Mitchelmore & Kirk JJA agreeing).
[68] Dawkings at [44].
The applicant emphasised that work need only be “a” substantial contributing factor and that the work has to be “real and of substance” and submitted that the s 9A can be established even though there are other relevant factors.
A difficulty in the determination of this issue is that Dr Greenberg did not address the relevant s 9A(2) factors and simply provided a bare opinion that the employment was a substantial contributing factor to the injury. Dr Sethi’s analysis on s 9A suffers from his conclusion that there was no work contribution. His analysis of the s 9A(2) factors flows from his conclusion that there is no relevant connection between the injury and the employment concerned.
I have previously identified other matters that are relevant to the relative contribution of the abdominal injury. The respondent’s submissions relied on the history of smoking, obesity and the previous laparotomy incision. It did not reference age or gender which are mentioned in Dr Sethi’s opinion. This may be because Dr Sethi considered smoking and obesity “well described risk factors”.
I make the following findings in relation to the matters set out in s 9A (2) “to the extent that they are relevant”,[69] noting that not all matters will “always be relevant”.[70] I note that I am not confined to the matters specified in s 9A(2) “and may take into account other factors that are relevant to the determination of the question in issue: viz, whether the employment concerned was a substantial contributing factor to the injury.”[71]
[69] Badawi at [89].
[70] Badawi at [131] per Basten JA.
[71] Badawi at [89].
I note that the findings should be considered in light of the perfunctory submissions on this issue.
“The time and place of the injury” within the meaning of s 9A(2)(a). The time and place of the injury clearly favour the applicant as the injury resulted from work duties, heavy in nature from August 2021 to June 2022 and lighter although still involving lifting up to 8kg from
July 2022 to January 2023.The respondent submitted that the injury did not occur when the applicant was doing the heavier lifting. However, that submission does not address that the injury was proven on lifting over an 18-month period.
“The nature of the work performed and the particular tasks of that work.” The plurality in Badawi emphasised that s 9A(2)(b) was directed to:[72]
“‘[t]he nature of the work performed and the particular tasks of that work’, that is, of the employment concerned. It is s 9A(2)(a) which directs attention, in part at least, to what the employee was in fact doing at the time of the injury, because it requires an identification of the time and place of injury.”
[72] Badawi at [96].
Subsequently the plurality stated:[73]
“Nor does para (b) deal with activities during the course of employment but which cannot be said to be within an interval or interlude within the course of employment (which is the relevant circumstance here) but which are not employment related.”
[73] Badawi at [98].
The submissions addressed the factors under s 9(2)(b) in the context of the factors under s 9(2)(a) and added nothing to the matters discussed under that provision. Those submissions are wrong in light of the observations of the Court of Appeal in Badawi.
The duration of employment was from August 2021 to the end of January 2023. Counsel submissions varied from describing this as a significant period (applicant) to it being a short period (respondent). The period has more relevance in this case because the injury is based on repetitive lifting and some very heavy repetitive lifting which occurred for approximately 11 months and lifting, albeit lighter, for approximately seven months. In the context of the proven injury, the period is not short. I accept that this factor favours the applicant.
The respondent submitted that the injury or similar would have happened in any event relying on Dr Sethi’s opinion. However, that opinion was based on his view that employment played no contribution. The applicant accepted that Dr Greenberg did not address this provision. The applicant’s counsel asserted that the probability of it occurring in any event was “not great” but noted that the opinion of Dr Greenberg did not address the issue.
I conclude that there is no acceptable medical evidence on the aspect noting the earlier finding that work was a material contribution to the injury. That conclusion suggests it is unlikely that the injury would have occurred in any event although the applicant, who bears the onus, led no evidence on this matter.
The worker’s state of health before the injury (e) and lifestyle (f) included the obesity and smoking until it ceased in 2017. The applicant asserted that the smoking ceased in 2017 and the effects of it had worn off. However, there was no medical opinion to base that submission.
I accept Dr Seth’s opinion that these matters are relevant. Dr Sethi also noted age related changes and gender as relevant although the doctor did not analyse their relevant contribution. The respondent’s counsel did not raise the significance of these matters in submissions although they are noted by Dr Sethi as relevant.
I rely on the earlier findings of injury under s 4(a). I find that that there are other non-employment causes for the onset of the injury, particularly obesity and smoking and to some unknown extent, the applicant’s age. Whilst the case has left me some doubts and noting the applicant bears the onus of proof on the balance of probabilities, I conclude that the temporal onset of the injury, that the work was a contributing cause of the injury, the heavy lifting for a period of 11 months and lighter lifting over seven months establishes that the employment concerned was a substantial contributing factor to the injury.
Causation of need for treatment
The relationship between the injury and the need for treatment was raised as a separate issue. There were no submissions by either party on the issue.
The applicant is required to establish, in accordance with the test in s 60 of the 1987 Act that the injury is a material contributing factor to the ongoing condition and the need for treatment: Murphy v Allity Management Services Pty Ltd.[74]
[74] [2015] NSWWCCPD 49.
I refer to the findings of the cause of the injury and the relationship with work. The hernias continue to be present. The medical evidence is that the condition continues and are “enlarging”.[75] For these reasons I am satisfied that the applicant has established that the need for surgery is as a result of the injury.
[75] Application, p 42.
Disease
The parties made no submissions on this issue. It is otherwise difficult to understand how this is a disease injury within the meaning of s 4(b) of the 1987 Act.
I decline to make findings under s 4(b) of the 1987 Act in the absence of submissions from counsel and note it is unnecessary given the findings in favour of the applicant under s 4(a). I note that the applicant would have difficulties establishing that the employment was the main contributing factor to contracting the disease in circumstances where there are other non-employment matters which are discussed earlier which contributed to the condition.
FINDINGS AND ORDERS
The findings and orders are set out in the Certificate of Determination. The respondent requested that if an order is made under s 60(5) of the 1987 Act, then it be noted that the fees are payable under the gazetted rates. I decline to make such as order noting that it is unnecessary as the insurer is only liable to pay the fees as gazetted.
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