Astra Panels Pty Ltd v The Workers' Compensation Regulator [2015] QIRC 207

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Astra Panels Pty Ltd v the Workers' Compensation Regulator [2015] QIRC 207 PARTIES: Astra Panels Pty Ltd (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2015/66 PROCEEDING: Appeal against a decision of the Workers' Compensation Regulator DELIVERED ON: 2 December 2015 HEARING DATES: 15, 16 and 17 June 2015 HEARD AT: Brisbane MEMBER: Industrial Commissioner Black ORDERS: 1. Appeal allowed 2. Decision of the regulator dated 18 February 2015 is set aside and substituted with a decision that the claim is not one for acceptance 3. Costs are reserved CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION – whether worker sustained a personal injury – conclusive diagnosis of hernia not secured until after claim for compensation lodged - whether employment a significant contributing factor. CASES: Workers' Compensation and Rehabilitation Act 2003, s 32, s 550 APPEARANCES: Mr J. Dwyer, Counsel instructed by the AiGroup Workplace Lawyers for the Appellant. Mr A. Johnson, Counsel directly instructed by the Workers' Compensation Regulator, the Respondent. -- 1 of 11 -- 2 Decision Introduction [1] Astra Panels Pty Ltd ("the appellant") appeals a decision of the Review Unit of the Workers' Compensation Regulator ("the regulator") dated 18 February 2015 to accept an application for compensation lodged by Mr John Georgas with WorkCover Queensland on 4 September 2014 in respect to a "recurrent left indirect inguinal hernia" injury. Mr Georgas alleged that the injury developed over a period of time and was attributable to heavy lifting at work. [2] WorkCover rejected the application for compensation on 2 October 2014. In response Mr Georgas lodged an application for review with the regulator on 5 January 2015. In a decision dated 18 February 2015 the regulator set aside WorkCover's rejection of the claim and substituted a decision that the claim was one for acceptance. It is this decision that the appellant now appeals to the Commission pursuant to s 550 of the Worker's Compensation and Rehabilitation Act 2003 ("the Act"). [3] The injury which is the subject of the appeal is a left inguinal hernia. Mr Georgas had previously sustained a right sided inguinal hernia in May 2012. Following surgery and a period of time off work, Mr Georgas returned to work on 16 July 2012. Matters for Determination [4] The appeal to the Commission is by way of a hearing de novo. It is for the appellant to establish on the balance of probabilities that Mr Georgas did not sustain an injury within the meaning of s 32(1) of the Act. Section 32 relevantly provides that an injury is a "personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury". [5] It is not disputed that Mr Georgas was a worker for the purposes of s 11 of the Act. Whether the injury arose out of or in the course of employment and whether the employment was a significant contributing factor to the injury are however matters in contention. The appellant also disputes any conclusion that Mr Georgas had sustained a personal injury. [6] In the event that the Commission finds that Mr Georgas has sustained a personal injury pursuant to s 32(1) of the Act, that appellant argues that his claim for compensation should be denied under s 130 of the Act on the ground that the injury was caused by serious and wilful misconduct. Evidence [7] During the course of the proceedings, evidence was provided by 14 witnesses. The witnesses for the appellant were as follows:  Neil Goundar  Dr Gavin Ballenden  Georgios Savvenas  Lance Schloman  Paul Fisher -- 2 of 11 -- 3  Wayne Bennett  Errol Yusuf  Allan Humphreys  Craig Schloman The witnesses for the Regulator were as follows:  John Georgas  Garry Knox  Dr Matthew Foley  Dr Nicolas Comino  Dr Michael Hatzifotis Personal Injury [8] It was the appellant's submission that the medical evidence did not support a finding that Mr Georgas suffered a left inguinal hernia. The appellant submitted that a left sided hernia was not identified during surgery for Mr Georgas' right inguinal hernia on 18 June 2012. Furthermore, none of the medical practitioners who examined Mr Georgas between 18 June 2012 and the date of lodgement of his claim on 4 September 2014 were able to definitively diagnose a left sided hernia. The examinations in question were said to have been conducted by Dr Foley in June 2013, by Dr Comino in August 2014, by Dr Greenslades in September 2014 and Dr Ballenden in September 2014. [9] The appellant's assessment of the medical evidence associated with these examinations led it to conclude that at and around the time that Mr Georgas lodged his application for compensation, no medical expert had identified the presence of a left sided hernia "with any certainty or at all". [10] The appellant acknowledged that Dr Hatzifotis diagnosed a left sided hernia on 7 January 2015 but argued that the diagnosis should be discounted because it was made some four months after the workers' compensation claim had been lodged. It was submitted that the "origins of any condition diagnosed by Dr Hatzifotis in January 2015 and its relationship to the employment are matters that are outside" the scope of the appeal. Right Sided Hernia [11] Mr Georgas felt a twinge in his right groin while lifting at work on 1 May 2012. He told his manager of the irritation on 2 May 2012 and subsequently attended on his general practitioner (Dr Comino) on 18 May 2012. Dr Comino diagnosed a right inguinal hernia and referred Mr Georgas to a general surgeon, Dr Greenslade, at the Greenslopes Hospital. [12] Dr Greenslade confirmed the diagnosis and operated on 18 June 2012. At operation, Mr Georgas was noted to have had both a direct hernia and indirect sac and both were reduced. A mesh was laid and tacked medially using a laparoscopic procedure. [13] Mr Georgas returned to light duties at work on the 16 July 2012. It was not in dispute that for the first two weeks he was restricted to lifting weights not exceeding one -- 3 of 11 -- 4 kilogram. For the next three weeks he was restricted to lifting weights not exceeding three kilograms. From 15 September 2012 he was restricted to lifting weights not exceeding 15 kilograms. The restrictions were imposed in directions given by Mr Allan Humphreys. There is a dispute in the evidence about whether the employer imposed permanent lifting restrictions on Mr Georgas from September 2012, and about the extent and nature of lifting practices engaged in by Mr Georgas after that time. Lower Abdominal Pain [14] On 30 May 2013 WorkCover referred Mr Georgas to Dr Foley for an independent medical examination. Dr Foley examined Mr Georgas on 13 June 2013. His report is in the evidence as Exhibit 8. The injury being assessed by Dr Foley was the right inguinal hernia which was repaired by Dr Greenslade on 18 June 2012. During this examination Mr Georgas reported that he had been experiencing "bilateral lower abdominal niggling dull pain for the past few months since the operation". Dr Foley's evidence at T3-87 was: "Mr Georgas was referred for an IME of the right inguinal hernia, and in the – in his conversation with me he described how he had developed a pain in both inguinal areas since the operation. Right?---He had referred to the fact that he’d been to see his family doctor on a number of occasions and had also been back to see Dr Greenslade." [15] Dr Foley's report includes the history associated with the lower abdominal pain: "Some time after the operation he developed lower abdominal pain over both inguinal canals left and right and it was a vague dull pain. There were no aggravating and no relieving factors. He returned to Dr Greenslade on one occasion to have the matter reviewed and initially he was reassured. He later returned and on 3 May 2013 had a CT scan of the abdomen and pelvis performed. He has also returned on a number occasions to his family doctor, Dr Comino, to query why he may have had this pain and Dr Comino has organised an ultrasound of his gallbladder which was found to be normal." [16] In his evidence (T2-69) Mr Georgas agreed that when Dr Foley suggested to him that he may have a left sided hernia, he had not been experiencing pain or symptoms similar to what he experienced with his right sided hernia and he continued to work as normal. His consistent position however was that he experienced abdominal discomfort or pain since the time of the right hernia operation in June 2012. It was after his visit to Dr Foley that he started to connect his long standing abdominal discomfort with a left hernia diagnosis. [17] The effect of Dr Comino's evidence at T3-96 was that Mr Georgas had been reporting abdominal pain since the June 2012 surgery. He said that generally a two or three month recovery period followed a hernia repair and that after six to twelve months the condition has completely resolved. His also gave the following evidence at T3-100: "Yes?---He had constant pain, particularly pain between the umbilicus and the pubis bilaterally and centrally all the time which is most unlike a normally -- 4 of 11 -- 5 recovering hernia repair. He had gone to someone – I had – I forgotten actually. I – that he had gone – but I – my – my recollection is that he continued to have pain – he continued to have pain. Justin Greenslade had this CT done in 2013. They then discovered this other hernia and it went from there." [18] Mr Georgas attended on Dr Ballenden, a specialist occupational physician, on 11 September 2014. Details of Mr Georgas's post-operative abdominal pain were also recorded in the history taken by Dr Ballenden (Exhibit 3). The history noted that Mr Georgas complained that following his surgical repair "he had abdominal discomfort, bloating, excessive burping and disturbed bowel"; that Dr Comino subsequently referred Mr Georgas back to Dr Greenslade to review symptoms that might be associated with the repair of his right hernia; and that Mr Georgas was "examined by Dr Greenslade, who could find no problem associated with the right sided hernia repair and advised that his abdominal discomfort was due to disturbance of the gastrointestinal tract and not due to disturbance of the abdominal wall". [19] Dr Ballenden agreed with Dr Greenslade's opinion that Mr Georgas's symptoms of abdominal discomfort were "not related to the groins but are general gastrointestinal symptoms". Dr Ballenden said in his report that the radiological findings were not "clinically considered to be the cause of this man's gastrointestinal upset". He said that the source of Mr Georgas' symptoms were gastrointestinal and not the abdominal wall. [20] Dr Hatzifotis is a specialist general surgeon who prepared reports on Mr Georgas' condition following consultations on 7 January 2015 and 18 March 2015. The reports are in the evidence as Exhibit 7. Dr Hatzifotis commissioned a CT scan of Mr Georgas' abdomen and lower back for the precautionary purpose of excluding "any other causes of the pain he was experiencing in his abdomen" (T3-71). If the CT scan did not disclose any abnormality it was Dr Hatzifotis' intention to perform a diagnostic laparoscopy before proceeding to repair the hernias. This was consistent with what he said in his 7 January 2015 report where he stated that Mr Georgas should have a "diagnostic laparoscopy at the time of surgery to exclude any other causes for his abdominal pain". [21] As it transpired the CT scan did surface the possibility at least that the abdominal pain was caused by diverticular disease. Dr Hatzifotis said in his 18 March 2015 report that the CT scan "revealed diverticular disease of the colon with no other gross abnormalities with the abdomen to account for his abdominal pain". While Dr Hatzifotis noted that diverticular disease was, or could be, a cause of the abdominal pain, his report was not conclusive on the question. [22] Despite this Dr Hatzifotis was not asked to give evidence about the opinions of both Dr Ballenden and Dr Greenslades that Mr Georgas' abdominal discomfort was caused by gastrointestinal symptoms. On the evidence of Dr Ballenden, diverticular disease had earlier been identified as a cause or contributing factor (Exhibit 3 at page 5): "The source of his symptoms has already been advised by his own treating surgeon. It is gastrointestinal symptoms and not the abdominal wall and is due probably to the diverticulosis (identified) and other probable dietary general gastrointestinal disturbance". -- 5 of 11 -- 6 [23] In summary, at the time of recommending the ultrasound, Dr Foley had a suspicion that the abdominal pain was caused by a left inguinal hernia; there is insufficient evidence to conclude that Dr Hatzifotis had, on either 7 January or 18 March 2015, formed a clear view on the cause of the abdominal pain; while both Dr Ballenden and Dr Greenslade had specifically concluded that the abdominal pain was not caused by a left inguinal hernia. Left Inguinal Hernia [24] As part of his examination, Dr Foley reviewed the CT scan of Mr Georgas' abdomen and pelvis which had been taken on 3 May 2013. The CT scan showed that the appearance of the upper abdominal organs was normal. The scan also showed that there was "fat containing bilateral direct inguinal hernias lying medial to the episgastric vessels and there was a suspicion of a fat containing indirect left inguinal hernia". [25] On physical examination Dr Foley found that there was no evidence of any recurrence of the right inguinal hernia on coughing reflex. He found "tender areas in the right and left mid-groin areas". Dr Foley confirmed in his evidence in the proceedings that during his examination he did not find any evidence of a left sided hernia (T3-91): "And in the course of physically examining him, you weren’t able to visually or physically identify anything in the form of a left-sided hernia?---Correct." [26] Dr Foley also reviewed an abdominal ultrasound performed on 14 December 2012. The ultrasound did not disclose any abnormality and in particular did not disclose the presence of any "anterior abdominal wall hernia". Dr Foley proposed to resolve the difference in the December 2012 and May 2013 radiological findings by recommending further investigations in the form of a dynamic ultrasound examination. He said in the proceedings that "if the dynamic ultrasound examination indicated there was a hernia, there is a hernia". [27] After recommending the conduct of the ultrasound in June 2013, Dr Foley had no further involvement in the matter. He accepted that the status of the left sided hernia was unresolved at this point in time (T3-91): "And that ultimately your conclusion in respect of the examination, with respect to the left-sided hernia, was a suspicion that there might be a left-sided hernia, rather than any sort of definitive conclusion?---Correct. And your suspicion is based, do I take it, on the report by the patient of some generalised abdominal pain in that particular area in the left groin?---Added to the CT findings. And the CT scan, yes. Those are the two things that gave you the suspicion, but they were still inconclusive. You were still unable to be conclusive as a result of those?---Correct." [28] The ultrasound was subsequently conducted by SouthernX Radiology on 23 August 2013 at the request of Dr Comino. The ultrasound report is in the evidence as Exhibit 11. The report noted that the purpose of the investigation was to verify the -- 6 of 11 -- 7 results of an earlier CT scan which suggested a left inguinal hernia. The findings of the ultrasound were described in the following terms: "A small indirect inguinal hernia is identified on the left side. It contains fat only which is partially reducible. No free fluid or hyperaemia evident". [29] While Dr Comino conducted a physical examination of Mr Georgas on 29 August 2014, he did not find clinical evidence of a left sided hernia but relied on the radiological findings to support his diagnosis (T3-100): "Okay. Did you – have you clinically examined him - - -?---Yes. - - - for the purposes of the hernia?---Yes. And were you able to establish clinically on your examination the presence of a hernia?---I’m not that good, mate. It was – it was – it – you know, the – the CT has a – stated a suspicion, the ultrasound, sort of, proved it. No. Sure. So you relied largely on the radiology rather than a physical examination?---On the – personally, yes." [30] Dr Comino agreed in his evidence that he had received correspondence from Dr Greenslade on 19 September 2014, and that in this correspondence Dr Greenslade had expressed an opinion that was "inconclusive in respect of a diagnosis of left sided hernia". [31] WorkCover referred Mr Georgas to Dr Ballenden on 11 September 2014 for assessment. WorkCover's basic request of Dr Ballenden was that he determine whether the injury diagnosed by Dr Comino of left inguinal hernia was work related. Dr Ballenden completed the assessment on 18 September 2014. On examination Dr Ballenden found that there was no clinically palpable left sided indirect or direct inguinal hernia. He also found that trans-scrotal palpation of the inguinal ring revealed no significant cough impulse. [32] As well as examining Mr Georgas, Dr Ballenden also reviewed the findings of the ultrasounds taken in December 2012 and August 2013 and the CT scan taken in May 2013. In this regard Dr Ballenden said that the left sided 'radiological' hernia was completely asymptomatic. Further, he opined that irrespective of the radiological findings, Mr Georgas did not have a clinical hernia. He recorded that Mr Georgas had no symptoms in the groins. [33] Dr Ballenden did however diagnose a "small recurrent right sided hernia" which he said was completely asymptomatic and was found in the standing position with cough effort. In regard to this condition Dr Ballenden was of the opinion that there was no clinical need at the time of his examination to repair the hernia or subject it to repeat surgery. [34] In his 7 January 2015 report Dr Hatzifotis stated that Mr Georgas had a "small recurrent right inguinal hernia and left inguinal hernia." He said that the hernias "are most obvious when standing and coughing". He also said that both hernias are reducible and the right sided hernia is tender. Surgery was recommended with -- 7 of 11 -- 8 Dr Hatzifotis saying in his report that he suggested to Mr Georgas that both hernias should be repaired. In his subsequent report dated 18 March 2015 Dr Hatzifotis said that the presence of bilateral inguinal hernias had been confirmed by CT scan. He also confirmed the presence of "small bilateral inguinal hernias" on examination. He reiterated his earlier recommendation that Mr Georgas undergo "bilateral inguinal hernia repairs". [35] Dr Hatzifotis acknowledged that he could not identify a point in time when the left sided hernia injury was sustained. He was not aware of any single precipitating event. Radiological Findings [36] Dr Ballenden questioned the reliability of radiological findings in the identification of a true hernia. He said in his report (Exhibit 3) that "most hernias found on radiological examination alone do not need any surgical intervention and guidelines suggest only clinically detectable hernias ever need repair". He further opined at T2-91 that CT scans and other scans will often pick up a defect but that a clinical hernia should be clinically palpable. He described a clinical hernia as "a hernia which requires treatment or expansion". He also said that often radiological diagnosis of hernial fat in an asymptomatic hernial patency is in fact inguinal canal fat, rather than fat protruding through a hernia site. He said that Mr Georgas' hernias contain a small amount of fat. He said that "they are not true hernias as they have no bowel in them, they are asymptomatic and they do not appear to require surgical intervention". [37] Dr Hatzifotis acknowledged the difficulty of relying on radiological evidence in the diagnosis of a hernia. He said at T3-78 that: " … it’s difficult to tell the difference sometimes with these small hernias as to what’s in the hernia, whether it is just a lipoma of the cord or a fatty sort of deposit around the spermatic cord. Yep?---Or whether you just have a bit of extraperitoneal fat which is protruding down into the inguinal canal." [38] The effect of Dr Hatzifotis' evidence was that he did not rely on either CT scans or ultrasounds in arriving at a final diagnosis. His evidence on the subject was recorded at T3-72: " … I don’t rely on a CT scan to diagnose an inguinal hernia for me. That’s a clinical assessment that I perform at the time of the surgery. Okay?---I don’t rely on ultrasound either because I think they’re unreliable and they’re very operator dependent. And so – and clinically, the relevance of the hernia is if someone has a pain or a lump in that region, then I don’t rely on imaging to diagnose a hernia. I rely on clinical suspicion. If someone presents to me with an ultrasound confirmed hernia and they don’t have a clinically obvious hernia, I don’t usually repair them." [39] Dr Hatzifotis said that there were two clinical features which are pathognomonic of an inguinal hernia. The first is the detection of a bulge when a patient coughs while the examiner is palpating the region where a hernia is expected to be found. The other -- 8 of 11 -- 9 involves a finding of reducibility. He said that reducibility means that when "the bulge pops out, when you get them to cough or strain, you can actually push that back in". [40] While Dr Hatzifotis said however that the physical examinations he had conducted on Mr Georgas satisfied both clinical features, these examinations did not take place until 7 January and 18 March 2015. If the same clinical standards were applied to Mr Georgas' condition on 4 September 2014, no finding could be entered to the effect that Mr Georgas was suffering from a left sided inguinal hernia at that time. Workers' Compensation Claim [41] As I understand the evidence, after his return to work on 16 July 2012, and during the period of time relevant to his claim, Mr Georgas continued to work until at least the date of lodgement of his WorkCover claim on 4 September 2014. The ongoing abdominal pain did not result in any absence from work. [42] On 29 August 2014 Mr Georgas attended on Dr Comino and was issued with a workers' compensation medical certificate. In this certificate the doctor records that the worker was first seen for the injury on 18 May 2012. The injury was described as "recurrent left indirect inguinal hernia". In terms of the worker's capacity for work the certificate stated that he could return to normal duties on 29 August 2014. Hence no time off work was considered necessary. However the certificate said that the worker would require treatment between 29 August 2014 and 30 October 2014. A subsequent certificate dated 15 October 2014 extended the time for treatment until 31 January 2015, but did not identify any incapacity for work. [43] While Dr Comino said in his evidence that he regarded the ultrasound of 23 August 2013 to be proof of the existence of a hernia, there did not appear to be any significant response to the ultrasound. No treatment was prescribed nor any time lost from work. Nor was any explanation proffered for why 12 months elapsed before a workers' compensation medical certificate was issued. Other than some references in the evidence of Dr Comino to exchanges between himself and Dr Greenslade, no evidence was adduced about consultations in respect to Mr Georgas' abdominal pain in the period between 23 August 2013 and 29 August 2014. [44] Mr Georgas subsequently lodged his application for workers' compensation with WorkCover on 4 September 2014. The application was lodged over the phone by Mr Georgas' wife. An entry in the WorkCover Communications Report (Exhibit 2) dated 4 September 2014 recorded that Mr Georgas' wife told the claims representative that the "left hernia is still small. John is still working with no issues." In the same entry Mrs Georgas is also quoted as saying that "its just that John is to retire soon and the Union told that you have to get this hernia sorted out as when John retires Work will not pay for the operation. Hence we thought to have a claim for the L hernia". [45] In summary, when Mr Georgas lodged his claim for compensation on 4 September 2014 it had not been established that the symptoms complained about were attributable to a left sided hernia. Nor had the presence of a left sided hernia been established by reference to clinical standards. -- 9 of 11 -- 10 Findings [46] The evidence supports the following findings: (i) Pain experienced since June 2012 was not attributable to a hernia, either left or right sided; (ii) The only definitive evidence of a left sided hernia at the time of claim lodgement was the radiological evidence of 23 August 2013; (iii) There was no clinical evidence of a left sided hernia at the time of claim lodgement; (iv) Radiological findings are not conclusive of the presence of a hernia, particularly a small hernia; (v) The clinical evidence is preferred to the radiological evidence; (vi) The clinical findings made on 7 January 2015 do not establish the presence of a left sided hernia on or before 29 August 2015 to the required standard of proof. [47] The effect of these findings is that there is insufficient evidence to support a conclusion that Mr Georgas had suffered a left inguinal hernia at the time of lodgement of his workers' compensation claim. [48] The ultrasound finding of 23 August 2013 is not sufficient to sustain Mr Georgas' application for compensation. In this regard I accept the consistent evidence of Dr Hatzifotis and Dr Ballenden to the effect that a hernia diagnosis should be supported by clinical evidence. In this regard neither Dr Foley in June 2013 nor Dr Ballenden in September 2014 found clinical evidence of a left sided hernia. Nor did Dr Greenslade accept that the 23 August 2013 ultrasound was conclusive of the presence of a left sided hernia. Additionally the evidence does not support a finding that Mr Georgas' presenting symptoms were caused by a left sided hernia. Both Dr Greenslade and Dr Ballenden concluded definitively that Mr Georgas' lower abdominal pain or discomfort was not related to hernias, while Dr Hatzifotis' evidence on the subject was not conclusive. [49] If the clinical evidence is determinative, then Mr Georgas's left sided hernia injury could only have been sustained sometime between 18 September 2014 when he was examined by Dr Ballenden, and 7 January 2015 when he was examined by Dr Hatzifotis. In addressing the test of association between injury and employment, the evidence in the proceedings was focussed on lifting practices claimed to have been engaged in by Mr Georgas between September 2012 and 4 September 2014. This evidence is not relevant to any determination to be made in respect to an injury sustained after 18 September 2014. [50] The reasoning leads to a conclusion which favours the appellant's position in respect to personal injury. That is, the medical evidence supports a balance of probabilities finding that Mr Georgas had not suffered a left sided hernia at or before 4 September 2014 (the date on which he lodged his claim for workers' compensation). [51] The appeal is allowed and the decision of the regulator to accept Mr Georgas' application for workers' compensation is substituted with a decision that the claim is not one for acceptance. -- 10 of 11 -- 11 [52] I order accordingly. -- 11 of 11 --