Toll Holdings Limited v Q-COMP

Date of decision: 14 March 2011, V.P Linnane

Mr S. McLeod of Counsel, instructed by MVM Legal for the Appellant

Mr F. Lippett of Counsel, directly instructed by Q-COMP

Key words – Employer appeal – Injury Type: physical injury – Appeal Outcome: appeal dismissed - Significant sections 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;

s32(3)(b) Injury includes the following- an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation – (i) a person injury;

s32(4) For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation

Head Note

The claimant was employed as a heavy truck driver with the appellant, a Self-Insurer, for a period of time in excess of twenty-six years. The claimant lodged an application for compensation (‘application’) for a physical injury (hernia) said to have been sustained over a period of time in the course of his employment. Throughout a substantial period of that time the claimant had been required to lift heavy items upwards of 25 kilograms as part of his normal work duties.

The claimant’s application for compensation was rejected by the appellant on the premise that the prolonged heavy lifting performed by the claimant in the course of his employment with the appellant could not have aggravated his umbilical hernia absent a specific identifiable event or incident. In rejecting the claimant’s application, the appellant relied on the opinion of Dr Michael O’Rourke, General Surgeon, who considered that, whilst it would appear the injury had arisen out of or in the course of the claimant’s employment, the claimant’s employment was not a significant contributing factor to his injury or the aggravation of that injury.

The claimant sought a review of the appellant’s decision and Q-COMP set aside the decision. In reaching its decision, Q-COMP relied on the evidence of the claimant and Dr Jason Boldray, General, Breast and Endocrine Surgeon, who provided Q-COMP with a short medical report.

The issue for determination at appeal was, to a great extent, dependent on the medical evidence adduced during the course of the hearing.

Claimant’s factual evidence

The claimant’s evidence was that he was required nearly every day of his employment with the appellant to lift truck and/or car tyres during his work shift. The claimant contended that since January/February 2010 he had experienced ‘twinges’ or ‘pain’ or ‘discomfort’ around his abdominal region. He also contended that from February/March 2010 he sought assistance of another co-worker particularly when he was experiencing pain.

Conflicting medical evidence

Dr O’Rourke’s evidence was that the cause of umbilical hernias in general is now thought to be a congenital weakness and that umbilical hernias are due to an error in the embryological development of the abdominal wall which ultimately gave way and then caused an umbilical hernia. Dr O’Rourke was of the view that the claimant’s hernia was caused by tissue degeneration or deficiency, and that if the hernia was work related, there would need to be some evidence that it occurred at work, for instance, an incident whereby the worker experienced a sudden onset of abnormal sensation or a tearing sensation.

In summation, Dr O’Rourke’s evidence was that, in the absence of a specific work related incident, he could not find any overwhelming evidence that the aggravation was a work-related condition on the basis that the claimant’s work could not be seen to be a significant contributing factor.

Dr Boldray’s evidence however, was that a hernia can be an acute event or it can be precipitated by a specific incident e.g. a strenuous event such as lifting, or a hernia can sometimes be a condition that has been present for many years, or from a congenital condition that has been present from birth.

Dr Boldray asserted that because the claimant’s work involved strenuous work on a daily basis, he thought that it was ‘entirely plausible’ that his hernia could have been aggravated by his work-related duties. Further, Dr Boldray’s evidence was that prolonged heavy lifting over a period of time can aggravate a hernia in the absence of a specific incident, and that each time a person undergoes physical exertion, the hernia can increase in size to a point where symptoms such as pain can occur and the hernia requires repair.

Conclusion

V.P Linnane preferred the evidence of Dr Boldray over that of Dr O’Rourke on the basis that
Dr Boldray’s opinion that heavy lifting over a prolonged period of time would ‘absolutely lead’ to the claimant’s hernia getting worse. Whereas Dr O’Rourke’s evidence was that there was a ‘remote possibility’ (although unlikely) that the prolonged heavy lifting would be likely to cause the aggravation of his hernia.

Further, V.P Linnane accepted the claimant’s evidence that he suffered ‘twinges’, ‘pain’, or ‘discomfort’ in January/February when lifting truck tyres which prompted him to ask for assistance in order to avoid additional pain and not make the hernia worse.

In summary, V.P Linnane found that the prolonged heavy lifting undertaken by the claimant was a significant contributing factor to the aggravation of his hernia.

Appeal dismissed.