Kim Alfred Ceissman v Q-COMP

Date of decision: 6 August 2009, I.M. John McGrath

Mr A. M. Arnold of Counsel, instructed by Swanwick Murray Roche for the appellant

Mr John Merrell of Counsel, directly instructed by Q-COMP

Key words – Labourer (light duties) – 48 years of age – Injury Type: left inguinal hernia – Causation – Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48 and EMI (Australia) v BES [1970] 2 NSWLR 238 applied - Appeal Outcome: appeal allowed - Significant section considered: –

s32(1) an injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury

Head Note

The worker, Kim Alfred Ceissman was employed on light labouring duties with the employer, the operator of an abattoir.

On 31 December 2007, the worker was lifting two laundry bags when he felt a sharp pain in his groin. On one view of the evidence, the weight of the bags was 14 kilograms. On another view of the evidence, the weight of the bags was between 25 and 30 kilograms. The Industrial Magistrate was unable to determine with certainty the actual weight of the bags.

On 9 January 2008, the worker lodged a claim with his employer for compensation under the Workers’ Compensation and Rehabilitation Act 2003.

On 12 March 2008, his self-insured employer rejected the claim.

On 2 June 2008, the worker applied to Q-COMP for review of the decision to reject the claim.

On 31 July 2008, Q-COMP confirmed the decision of the self-insured employer on the basis that the worker’s employment was not a “significant contributing factor” to the injury.

The Industrial Magistrate allowed the appeal on these grounds:

1. The worker suffered a personal injury described as a left inguinal hernia

2. The worker’s injury arose out of, or in the course of, his employment

3. The worker’s employment was a significant contributing factor to the personal injury.

The Industrial Magistrate made these relevant findings of fact:

1. The claimant suffered a left inguinal hernia

2. It is not necessary for there to be a severe episode to develop a hernia

3. Because of the worker’s size, the weight needed to cause an inguinal hernia need not be much

4. There is no minimum weight needed to “bring about” an inguinal hernia.

The issue on appeal was whether the worker’s employment was a “significant contributing factor” to the injury.

The medical evidence was equivocal about this issue; the nadir of the expert evidence for the appellant being that it is “possible” that the appellant suffered the injury as a result of what he said he was doing at the time he felt the pain.

To resolve this and determine whether the worker’s employment was a “significant contributing factor”, the Industrial Magistrate quoted Newberry v Suncorp Metway Insurance Ltd (supra):

“ … that an injury has been suffered arising out of employment, or in the course of employment, is not sufficient to establish that the employment has been a ‘significant contributing factor to the injury’… (the legislature) require(s) a more substantial connection between employment and injury than is required by the phrases “arising out of employment” or “in the course of employment.”

The Industrial Magistrate qualified this stringency by finding that “an inference of causation can be drawn from the circumstances of the case where the state of the medical evidence is such that it merely admits of the possibility of the case”.

In making this finding, the Industrial Magistrate applied these passages from EMI (Australia) v BES (supra):

“… if medical science is prepared to say that it is a possible view, then… the judge after examining the lay evidence may decide that it is probable.”

“… medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer… that no medical witness states with certainty the very issue which the Judge himself has to try…”

The Industrial Magistrate considered the worker’s various lifestyle factors including his size, age, habits and residency and determined that he was at greater risk than other members of the community of suffering a hernia. The Industrial Magistrate then found that “all of these factors combine to… demonstrate that it is possible that the (worker) suffered the injury as a result of what he said he was doing at the time he felt the pain.”

Given that the Industrial Magistrate found it possible that the worker suffered the injury as a result of his duties, His Honour then applied EMI (Australia) v BES so that the court is permitted to find that it is probable, having regard to the other evidence.

This other evidence included:

1. The worker had readily been performing the tasks required before the incident of 31 December 2007

2. If the injury had been dormant, it would have previously manifested

The Industrial Magistrate therefore found that it is “more probable than not” that it was lifting the bags of laundry that brought about the change in intra-abdominal pressure that caused the inguinal hernia. The lifting of the bags was one of the duties that the worker was required to perform in the course of his employment.

Conclusion

As a result of the findings of fact based particularly on the application of (EMI) Australia v BES, the Industrial Magistrate held that on the balance of probabilities the worker suffered the left inguinal hernia while he was lifting the bags of laundry during the course of his employment at the abattoir.