December 7, 2017

Employer Liability & Workers Compensation | QLD

Hernia experts carry heavy weight

In Portors v Comcare (Compensation)[1] the Administrative Appeals Tribunal were required to determine, quite literally, whether Mr Porters busted a gut at work.

On 10 July 2002, Mr Portors was employed as a storeman/labourer with the Department of Health. He and a colleague were required to carry a heavy conference table to the third floor, via the stairs, of departmental premises in Woden, ACT.

On 17 July 2002, Mr Porters presented at Calvary Hospital Emergency Department reporting generalised abdominal pain. A few weeks later he presented to a Dr Black where he reported that he had lifted a heavy weight and got symptoms of abdominal pain. In the month following the incident, Mr Portors had six consultations with five different doctors about his abdominal pain. Critically, at no stage was it noted that he reported groin pain.

On 8 October 2002, Comcare accepted Mr Portors’ claim for workers compensation for an injury described as inguinal hernia, without mention of obstruction (bilateral). Mr Portors’ subsequent treatment for his condition was long and complicated, extending over a number of years. Mr Portors did not work in any capacity from June 2003 to the date of hearing.

The issues before the tribunal are usefully summarised as follows:

  1. Did Mr Portors suffer a workplace injury on or about 10 July 2012?
  2. If so, is the hernia repair condition characterised as a sequalae to or continuation of the workplace injury?
  3. Is Mr Portors entitled to compensation under the Act for the hernia repair condition?

The Tribunal was presented with a significant volume of medical evidence from a number of treating practitioners. However, it was the three doctors who provided both written reports and telephone evidence that carried the most weight; Drs David McGrath and Michael O’Rourke for Comcare and Dr David Gorman for Mr Portors.

Put briefly, Drs McGrath and O’Rourke were of the view that the Claimant’s symptoms ensuing the alleged date of incident were not consistent with an inguinal hernia being caused by the lifting incident. Dr Gorman was of the view that the hernia was significantly contributed to by his work, but agreed that the pattern of symptoms may not have been consistent with an inguinal hernia being caused by a lifting incident.

At [76] the Tribunal observed that the evidence of these experts “could best be summarised as saying that lifting heavy weights is unlikely to cause or aggravate a hernia, but that if it did it would almost certainly only arise in circumstances where the sufferer felt strong immediate pain in the area of the hernia”.  

The Tribunal arrived at a finding of fact that Mr Portors did not feel pain contemporaneously with the lifting, but felt it some hours or days later, and that the pain he felt then was not groin pain.

On this factual basis, and citing the summarised opinion of the expert medical witnesses, the Tribunal concluded at [96] that it “can be satisfied Mr Portors did not suffer a workplace injury in July 2002 … his employment did not cause him to suffer the hernia, nor did it aggravate a hernia condition. It follows that any condition arising out of hernia repair surgery cannot be an injury for the purposes of the Act”.

What can we as an Employer learn from Porters?

  1. The Courts will give more weight to the evidence of experts whose expertise lies directly in the relevant area. Ensure that doctors briefed to comment are well credentialed in the area in which comment is sought. 
  2. Courts are aware that where claimants are convinced work was responsible for their injury, such conviction “may recast his or her memory of its genesis”. This cryptic piece of obiter means claimants may recall that which is beneficial to their case, but fail to recall that which may not be. We would suggest that this is hardly new information.
  3. A pattern of ‘mistakes’ is more likely to suggest a correct assertion than an absence from the truth. Mr Portors submitted that all treating doctors mistakenly failed to note that he reported groin pain. It was held instead that such reports were never made.
  4. Which ties into our final point, contemporaneous records will almost always be preferred over memory where there is an inconsistency. Keeping accurate, contemporaneous written records can be burdensome; however, the importance of this practice can never be understated.

Bonus point - Myth: busted. The current position of medical experts (in contrast to that of yesteryear) is that hernias are not usually caused by lifting heavy weights. Be careful though, orthopaedic injuries certainly may be. Lift carefully.

 


[1] [2017] AATS 2166