Downer EDI Rail Pty Limited v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 106

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Downer EDI Rail Pty Limited v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 106 PARTIES: Downer EDI Rail Pty Limited (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2014/135 PROCEEDING: Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) DELIVERED ON: 29 May 2015 HEARING DATES: 1 - 2 September 2014 (hearing) MEMBER: Industrial Commissioner Knight ORDERS : 1. The appeal is dismissed; 2. The decision of the Worker's Compensation Regulator of 25 March 2014 is confirmed; and 3. The Appellant is to pay the Respondent's costs of and incidental to the appeal to be agreed. In the event agreement cannot be reached between the parties with respect to costs, the Respondent has the liberty to apply. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - A significant contributing factor - where the worker sought compensation for his hernia injury - heavy lifting and strains - where claim was accepted - whether injury arose out of or in the course of employment - a coughing fit at home - whether employment is a significant contributing factor - whether heavy lifting aggravated hernia - recent medical research on hernias - onus on Appellant - Appeal dismissed. -- 1 of 13 -- 2 CASES: Workers' Compensation and Rehabilitation Act 2003 s 32 Heald v Q-COMP (2004) 177 QGIG 769 JBS Australia Pty Ltd and Q-COMP (C/2012/35) – Decision <http://www. qirc. qld. gov. au> Kudryavtseva v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 053 Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48 APPEARANCES: Mr N. Jarro Counsel, instructed by BT Lawyers for the Appellant. Mr C. Clark, Counsel directly instructed for Simon Blackwood (Workers' Compensation Regulator). Decision [1] This is an appeal by Downer EDI Rail Pty Limited ("the Appellant") pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act") against the decision of the Regulator's Review Unit ("the Respondent" / "the Regulator") dated 25 March 2014. [2] That decision confirmed an earlier decision of WorkCover to accept an application for compensation by Cheyne Freyer ("the worker") in respect of an alleged injury for a "bilateral inguinal hernia L&R" sustained on 14 December 2012 from lifting during his employment as a Fitter and Turner for the Appellant. [3] The basis for the decision by the Regulator was that the worker had sustained a personal injury eventually diagnosed as a "right inguinal hernia" and that the injury arose out of his employment with Downer EDI and the employment was a significant contributing factor to the injury. Grounds of Appeal [4] The grounds of Appeal upon which the Appellant relies are as follows: (a) The worker's employment duties with the Appellant did not require the worker to undertake heavy manual handling or heavy lifting. (b) The worker, when applying for workers' compensation, advised that he was "unsure" about what caused the alleged injury. (c) The worker, when completing a workers' compensation claim form, did not answer Question 15 to indicate when and where the alleged injury occurred. -- 2 of 13 -- 3 (d) The worker, when questioned by a claims officer of WorkCover Queensland, reported that: "[H]e woke up one morning and had a coughing fit. Whilst he was having this coughing fit Cheyne advised he noticed a lump in the groin region. Cheyne stated he didn't think much of this at the time however he noticed the lump was growing in size over the next couple of weeks, the pain he experienced even worsened." (e) The evidence is that the alleged injury appeared while the claimant was not at work and was not performing any work related activity. (f) WorkCover obtained an opinion from Dr Cotton that "indirect inguinal hernia occurred due to a defect in the deep inguinal ring … these hernias do have a developmental origin." Issues for Determination [5] The appeal to the Commission is by way of a hearing de novo. In order to succeed in its appeal, Downer EDI Rail Pty Ltd must establish at least one of the following points. 1) that at the relevant time Mr Freyer was not a worker within the meaning of the Act (this point is conceded and is not argued); 2) that at the relevant time Mr Freyer did not sustain an indirect right inguinal hernia; or 3) that if Mr Freyer did sustain a right inguinal hernia that the injury either did not arise out of or in the course of his employment as a fitter and turner with Downer EDI Rail; or was one to which his employment was not a significant contributing factor. [6] There is no dispute that Mr Freyer is a worker for the purposes of the Act. Nor is there any issue that he has suffered a personal injury in the form an indirect right inguinal hernia. What is in dispute between the parties is whether or not Mr Freyer's injury is an aggravation of a pre-existing condition that has occurred over a period of time which has arisen out of, or in the course of his employment. The Appellant has submitted the nature of an indirect inguinal hernia is developmental in origin. Further, that the alleged injury appeared while Mr Freyer was not at work and was not performing any work-related activity. Relevant Legislative Principles and Authorities [7] Section 32 of the Act relevantly provides as follows: "32 Meaning of Injury (1) An injury is personal injury arising out of, or in the course of, employment if employment is a significant contributing factor to the injury. … (3) Injury includes the following - -- 3 of 13 -- 4 (a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease; (b) 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 personal injury; ii. a disease; iii. a medical condition if the condition becomes a personal injury or disease because of the aggravation; (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. " [8] In Kudryavtseva v Simon Blackwood (Workers' Compensation Regulator),1 Neate C considered the authorities in so far as they related to onus, noting: "Although the onus to be discharged is on the balance of probabilities, the Commission, in dealing with the matter, must feel an actual persuasion before the alleged facts can be found to exist. (See MacArther v Workcover Queensland (2001) 167 QGIG 100, 1010 (Hall P) and cases cited). " And later: "In a case where expert medical evidence is led, before any such expert medical evidence be of value, the facts upon which it is founded must be provided by admissible evidence (see Coombes v Q-Comp (2007) 185 QGIG 680, 681)." [9] In Newberry v Suncorp Metway Insurance2 Keane JA, with whom de Jersey CJ and Muir J agreed said: "[27] It cannot be disputed that, when s 32 of the WRC speaks of 'employment' contributing to the worker's injury, it is referring to employment as a set of circumstances, that is to the exigencies of the employment of the worker by the employer. The legislation is referring to 'what the worker in fact does during the course of employment'. " [10] As to aggravation of an injury, in Heald v Q-COMP3, Hall P confirmed the view of Dr Turner that there are two types of compensable aggravation: "A degenerative condition may be aggravated in the sense that it may be made worse, i.e. after the aggravation the degenerative disorder is worse than it was before. But there can also be an aggravation in the sense of an increase of symptoms associated with a degenerative condition which, after the cessation of the symptoms, returns to its pre-aggravation state. " 1 [2015] QIRC 053. 2 Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48. 3 (2004) 177 QGIG 769. -- 4 of 13 -- 5 [11] In JBS Australia Pty Ltd and Q-COMP 4 Hall P confirmed the need to establish that "employment must significantly contribute to the occurrence of the injury. It is insufficient to establish that the employment was the setting in which the aggravation occurred or the background to its occurrence. " Witnesses Mr Jamie Rice [12] For the Appellant, Mr Jamie Rice gave evidence. Mr Rice, a tradesman, has worked for the Appellant for approximately 21 years and holds the position of Team Leader. Mr Cheyne Freyer, the claimant originally worked for Mr Rice as an apprentice and was working in the project team Mr Rice was overseeing at the time of the alleged injury. Professor Michael O'Rourke [13] Professor Michael O'Rourke, General Surgeon, was called to give evidence by the Appellant. Professor O'Rourke prepared a Report dated 7 August 2014 concerning the worker. Mr Cheyne Freyer [14] For the Respondent, the worker gave evidence. Mr Freyer commenced work as an apprentice fitter and turner with Downer EDI having worked for an eleven year duration at the time of the proceedings. Dr O'Donoghue [15] Dr O'Donoghue is a General Surgeon who was called to give evidence by the Respondent. Dr O'Donoghue performed surgery on the worker on 28 January 2014 for the repair of an indirect inguinal hernia. Dr Cotton [16] Dr Cotton is a General Practitioner who saw the worker on 18 October 2013. He was not called to give evidence, but his records and medical notes were entered into evidence by consent. The Evidence [17] Mr Freyer, an employee of Downer EDI for approximately eleven and a half years at the time this matter was heard, held the position of tradesman fitter and turner. [18] Mr Rice, a team leader of the project on which the claimant was working, became aware Mr Freyer may have sustained an injury on or around 1 October 2013 when a supervisor, Mr Graham Green, sought advice in respect of managing a potential workplace injury reported by Mr Freyer. Mr Rice recalled he and Mr Green spoke with Mr Freyer the following day and asked if he could remember if there was a specific workplace incident or task which may have contributed to the pain in his groin, however Mr Freyer was unsure and not able to point to any particular incident. 4 (C/2012/35) – Decision <http://www. qirc. qld. gov. au>. -- 5 of 13 -- 6 [19] Mr Freyer's evidence was that he was unable to recall the date upon which he first noticed pain in his groin area, but two weeks after that pain had increased, he saw a General Practitioner who thought that he might possibly have a hernia. A diary note dated 1 October retained by Mr Green, but signed by both Mr Freyer and Mr Green noted: "Cheyne Freyer has noted he has a lump in his groin that he suspects could be a hernia has seen a doctor approximately two weeks ago although the doctor couldn't find anything definite, condition has worsened since. Employee is unsure of how condition may have worsened." [20] After that, Mr Freyer visited another General Practitioner, Dr Cotton when he continued to experience pain and he felt the lump in his groin growing larger. Dr Cotton issued a Workers' Compensation medical certificate on 18 October 2013 stating Mr Freyer has sustained a "Bilat Inguinal Hernia R L". A patient health summary, prepared by the Maryborough Family Medical Practice and tendered by consent, recorded the following notes in respect of Mr Freyer's consultation with Dr Cotton for 18 October, 2013: "Consultations: Surgery consultation recorded by Dr Paul Cotton on 18 October 2013 Presenting Complaint: EDI work injury – Right Inguinal Hernia History: No specific injury First noticed 1/12 ago – a bulge with coughing recently Non Smoker Fitter and Turner – heavy lifting at work Chat May also have left Inguinal hernia Chat Reason for visit: EDI work injury – Right Inguinal Hernia Management: Limitations discussed W/C Suitable duties 7/11/2013" [21] On 23 October 2013, an Initial Incident Report (Downer Rail) was completed and signed by the worker. This Report stated: "Employee has been feeling slight discomfort in groin area for approximately 3 weeks. Condition has become slightly worse and would like a check-up". Under the heading "Immediate Corrective Actions (Interim Controls)" the following was recorded: "Employee on restricted duties pending a Doctor's report. Doctors appointed (sic) booked". [22] Mr Rice's evidence was to the effect that Mr Freyer was unable to nominate any specific event that might have caused his hernia pain and as such was unsure as to causation of his pain. -- 6 of 13 -- 7 Nature of Mr Freyer's Work Duties [23] Before descending into what is largely a description of the work performed by Mr Freyer, it is noted in final submissions by both Counsel that it is common ground he generally performed more traditional fitting and turning duties identified hereunder following a previous period where he had been undertaking risk assessments and drafting Workplace Health and Safety Documents for another part of the organisation. [24] In a statement subsequently tendered by consent during the proceedings, Mr Rice listed the tasks he understood Mr Freyer was required to undertake in his role as a fitter and turner. The statement went into some detail in respect of manual handling and the risk of strain associated with each task. Mr Rice acknowledged he oversaw a large team of employees with at least seven leading hands and was not in a position to consistently observe the duties Mr Freyer performed in the workplace. [25] Whilst the evidence of Mr Rice and Mr Freyer was not in complete alignment in respect of the physical effort associated with each individual task that was undertaken by Mr Freyer in his role, there was a general acceptance by both men during the proceedings that quite a number of Mr Freyer's responsibilities included a reasonable degree of physical exertion in combination with the regular lifting and placement of objects in the workplace which could weigh anywhere between 10 and 40kg's. [26] For example, Mr Freyer described his work as involving physical exertion when lifting "bogies" which could weigh between 10 to 15 kilograms. As well, there was "heavy tooling" which was used in this process. The heavy tooling was three quarter inch tension wrenches that individually weighed around 10 kilograms. He would often be required to apply a sideways force to tension bolts. Mr Freyer also referred to lifting, pulling, pushing and levering jobs that he was required to do at times where he recalled he would push his muscles to the limit. [27] Mr Freyer told the Commission there was significant physical exertion involved in assembling folding stairs because a number of the components were awkward in shape and some of the parts were very heavy, weighing approximately 10 to 15 kilograms. The job of fitting windows and spandrels was also physically demanding as the average size of a window ranged between 30 to 40 kilograms. On approximately eight occasions, Mr Freyer fitted the entire side of a train and this involved placing approximately seventeen windows on each occasion. [28] Reference was also made to other jobs performed by Mr Freyer which required strenuous physical activity including guiding and manoeuvering beams so that bolts could be fitted and also connecting car body lifters. Mr Freyer also acknowledged there was some work he performed which required minimal lifting. For example, normal work for a fitter might include fitting bellows and locking rings and Job Safety and Environment analysis. [29] The claimant also described how he would operate the overhead crane. Whilst it was suggested by Mr Rice that he may not have performed that particular role, Mr Freyer's evidence was that at one point he was operating the crane every day. He said the job -- 7 of 13 -- 8 also involved lifting and affixing chains which could weigh anywhere between 15 and 20 kilograms. [30] Mr Freyer acknowledged the lifting, placement or adjustment of particular objects including windows, spandrels, folding steps and extension arms would often be shared with another worker or undertaken with the assistance of aids such as trolleys, wrenches, cranes or suction cups. This clearly reduced the risk of strain or injury to employees, however he told the Commission that certain tasks were still quite awkward and physically challenging notwithstanding the additional support or assistance. [31] Mr Rice also agreed there were particular jobs performed by Mr Freyer which involved physical exertion. [32] It is not necessary to detail all of the instances nominated by the worker, but it is fair to state that the Commission accepts that there were functions performed by Mr Freyer in the performance of his duties that involved physical exertion and/or strains. On that point, there is no significant challenge by the Appellant. Medical Evidence Has the worker suffered a personal injury? [33] A summary from WorkCover provided to Dr Cotton to be completed by him sets out his responses to information and subsequent questions asked of him by WorkCover in October 2013. [34] Dr Cotton's notes say that he observed from the worker's presentation an indirect inguinal hernia that occurred due to a defect in the deep inguinal ring. Dr Cotton said this type of hernia is usually manifested in older men and has a developmental origin. He also opined it was reasonable, under current legislation, to accept a cause/effect relationship between heavy lifting and manifestation. [35] The history reported to Dr Cotton in a summary from WorkCover included Mr Freyer waking in the morning, experiencing a coughing fit and feeling a lump in the groin region. Over a period of time the worker felt this lump grow and he commenced feeling pain in that region. Dr Cotton from WorkCover was advised Mr Freyer's job involved lifting and pulling on ranchers and that he was not involved in physical activity outside of work, neither going to the gym nor playing sports. [36] WorkCover also provided Dr Cotton with a list of manual tasks Mr Freyer allegedly performed while lifting, pulling and assembling parts:  Fit bellows and locking rings;  Assembling folding steps;  Door motor piping;  Fit windows and spandrels - this is a two person job and is quite heavy;  Installing grey water piping;  Installing ballast beams;  Tensioning centre pins (approximately 15 kilograms);  Fitting airboxes;  Preparing bogies for wheeling; -- 8 of 13 -- 9  Connecting car body lifters;  Operating overhead crane;  Detailing;  Loco wheelset assembly - heavy lifting of approximately 25 kg. Bearings are 10 kilograms and he did this for four years; and  Bogie assembly. [37] Dr Cotton referred Mr Freyer to Dr O'Donoghue on 25 October 2013. It is accepted by the Appellant the worker sustained a personal injury based upon the opinions of Dr O'Donoghue and Professor O'Rourke. It is also accepted the injury is one of an "indirect right inguinal hernia". Did the injury arise out of or in the course of employment and was employment a significant contributing factor? [38] Dr O'Donoghue is a General Surgeon who was called to give evidence by the Respondent. On 28 January 2014, Dr O'Donoghue performed surgery on the worker for a right inguinal hernia. This hernia was described as developmental in nature because it arises at the time of birth. There is a persistent sac present, but not all of those develop into a hernia. [39] Submitted into evidence was a File Note of a Conference with Dr O'Donoghue and representatives of the Respondent. The conference was held on 14 August 2014 and those in attendance were Dr O'Donoghue, Mr Clark and Mr Jenkins. [40] That note contains the following:  An indirect inguinal hernia is developmental in nature;  A patient with an indirect inguinal hernia is unaware of the existence until it is becomes symptomatic;  It is generally accepted that strain injuries aggravate inguinal hernias;  It is still well accepted in the medical literature that physical activities can aggravate an inguinal hernia that will then become symptomatic;  It is not necessarily the case that one will have a sensation of pain coinciding with physical activity that has aggravated the inguinal hernia.  A coughing episode can cause an asymptomatic hernia to become symptomatic;  The surgery undertaken on the worker was routine and nothing unusual was noted;  There is nothing in the operative findings that would indicate the hernia was solely developmental in nature. [41] Dr O'Donoghue stated Mr Freyer's duties with the Appellant were a significant contributing factor to his hernia. This note was signed by Dr O'Donoghue and Mr Jenkins on 14 August 2014. Dr O'Donoghue's opinion differed to that of Professor O'Rourke's where Professor O'Rourke, in his report dated 7 August 2014, stated that strain injuries have not been demonstrated to cause the development of a hernia. Conversely, Dr O'Donoghue claimed that it is generally accepted that if one had chronic repetitive strain injuries, albeit minor in nature, this would aggravate the situation and lead to the development of a hernia. Dr O'Donoghue was firm in his view that this reflected conventional, medical opinion on that point. -- 9 of 13 -- 10 [42] Dr O'Donoghue said evidence of a strain would not be found in an operation because one is not going to see a torn muscle or something that has been traumatised. Dr O'Donoghue's evidence to the Commission was that after operating on Mr Freyer, he found that there was nothing which could cause him to draw a conclusion as to the precise causation of the hernia. Specifically, he stated that there was no indication to say whether or not there was a trauma or some other injury that may have precipitated it. All he observed was a simple inguinal sac. [43] In cross-examination, Dr O'Donoghue restated the point that strain injuries may aggravate an inguinal hernia. Dr O'Donoghue said Mr Freyer had not mentioned an isolated injury nor could he recall tearing a muscle or developing severe pain and then a swelling. Mr Jarro, Counsel for the Appellant, asked Dr O'Donoghue to consider a situation where there was no work incident, and in those circumstances, what, in his opinion caused the condition to become symptomatic Dr O'Donoghue expressed the view that recurrent low grade rises in intra-abdominal pressure, which could been caused by lifting equipment or machinery at work, or lifting some weights would have progressively weakened the structure around that part of the abdominal wall which could lead the hernial sac becoming large enough to allow tissue to enter it and result in the condition becoming symptomatic. [44] Dr O'Donoghue indicated that lifting weights greater than 10 kilograms is known to cause a rise in the intra-abdominal pressure, but that it was often a repetitive strain that is of a low grade nature that over time will result in the development of a hernia. In saying that, he also acknowledged a condition could become symptomatic when a person is not engaged in manual activity, but was also quite firm in his view that the condition could also become symptomatic because of recurrent repeated increases in intra-abdominal pressure that added strain and led to the development of a hernia. [45] Professor O'Rourke confirmed he had not examined Mr Freyer, so had not taken an oral history from him. In his report dated 7 August 2014, Professor O'Rourke formed the view Mr Freyer had a right inguinal hernia which had been described in the operative notes as an indirect hernia. His evidence to the Commission was that there were two causes of inguinal hernia. The first cause being that a person is born with a congenital hernia. He described the second cause as a direct hernia that is more specifically described as a degenerative hernia. He was of the opinion Mr Freyer's hernia was more likely to be congenital in nature. [46] Contrary to the view expressed by Dr O'Donoghue, Professor O'Rourke took the position that there was no medical opinion or evidence that muscular activity causes a hernia. By way of example, he pointed to some research which demonstrated that gymnasium work where one might lift weights does not cause a hernia. Professor O'Rourke further noted that the only trauma that could cause a hernia is severe body trauma such as a penetrating wound. [47] In response to the question "to what extent are hernias contributed to by bodily functions like coughing that strain the abdominal wall?" Professor O'Rourke noted: "There is some evidence to suggest that this may well provide some evidence in the aetiology of hernia. However, there is no trial that has ever specifically validated this point." -- 10 of 13 -- 11 [48] Professor O'Rourke's attention was drawn to an article he had attached to his Report "O'Rourke, G.E. and O'Rourke, T.R.,"Inguinal hernia: aetiology, diagnosis, post-repair pain and compensation" ANZ Journal of Surgery, 82 (2012) 201", where he had stated that "the work-scene is possibly an aggravating factor, but not a prime aetiological factor". Also in that article, Professor O'Rourke had listed "heavy lifting or straining" as a commonly accepted stressor or potential aggravating factor. It is noted Professor O'Rourke was a co-author of that article. Under the heading of Aetiology, the following conclusion was drawn on page 203 of the same article: "Despite the above reasoning that most patients may have a pre-disposition, there is still a possible aggravation factor which may occur in the workplace. Till larger studies confirm or reject the inevitable factor, one should concentrate on the balance of probabilities that an incident in the workplace can be a significant aggravating factor".5 [49] When asked if he still adhered to those opinions, Professor O'Rourke said that the article was now outdated and current thought was that there was no evidence at all in the literature which says that heavy lifting causes a hernia. Where Dr O'Donoghue stated in his Executive Summary of his Report that "[h]e (Mr Freyer) developed a right inguinal hernia following a coughing fit" he was asked whether he still held that view. Dr O'Donoghue said that was the history he had read and he reiterated that he had not seen the worker. The literature which had been attached to Professor O'Rourke's Report made reference to possible repercussions from a "chronic cough" rather than a "coughing fit" as claimed by the worker, and Professor O'Rourke acknowledged the difference. Consideration and Conclusions [50] In summarising Dr O'Donoghue's opinion, the Regulator stated that the hernia was developmental in origin. The Regulator said that Dr O'Donoghue had stated that a succession of low grade strain type injuries or activities would have aggravated the condition. The condition does not necessarily encompass one singular or discrete acute injury event in the workplace. It can occur over a gradual process. In effect, what occurred to the worker was that his injury is effectively an aggravation of a pre-existing developmental condition. [51] The Regulator submitted that Dr O'Donoghue's opinion reflected what he had described as acceptable in respect of current medical literature. [52] The evidence of the worker and that of Mr Rice, while differing on small matters in relation to the type of work performed by the worker and the extent of the physical exertion involved, largely showed the potential for a succession of low grade straining activities in the course of the work performed. [53] Dr O'Donoghue's knowledge of the worker's history from 1 October 2013 concerning his condition precluded the history of the coughing episode of which he was made aware during the hearing. He did not ascribe to the coughing episode and the injury the same significance as does the Appellant. 5 O'Rourke, G.E. and O'Rourke, T.R.,"Inguinal hernia: aetiology, diagnosis, post-repair pain and compensation" ANZ Journal of Surgery, 82 (2012) 201[203]. -- 11 of 13 -- 12 [54] In considering the evidence given by Professor O'Rourke, the Regulator said it would be impossible to prefer his evidence over that of Dr O'Donoghue arguing Professor O'Rourke was confused initially as to the type of injury under consideration. Further, that it was clear that elements of the article attached to Professor O'Rourke's Report were retracted by him during the course of giving his evidence and especially on some key issues which were the subject of this appeal. [55] The Appellant submitted that since the evidence of Mr Freyer and Mr Rice covered mainly common ground, the case turned mainly upon medical evidence. Mr Jarro, on behalf of the Appellant submitted it was Mr Freyer's evidence was that he noticed a lump in his groin, suspected it to be a hernia, and he saw a Doctor some two weeks later and this all occurred prior to 1 October 2013. The Appellant says that beyond that point, the rest of the issues fall into the category of speculation arguing that such speculation is seen when considering Dr O'Donoghue's opinion. When the Incident Report Form was completed, there had been no reference to a discrete workplace injury and Dr O'Donoghue was unable to diagnose a strain or a tear giving rise to the condition to become symptomatic. [56] The Appellant said that the worker's evidence should be particularly considered where he claimed to have noticed a lump in his groin after he had experienced a coughing fit. The worker's evidence was that when he first noticed the lump in his groin he had a "bit of a cough". In cross-examination the worker denied that he had described his coughing as a "coughing fit" as recorded in the WorkCover (Verbal and Unsuccessful Communications Report) document. [57] The Appellant, in cross-examination of Dr O'Donoghue, related to him a brief history of the worker's onset of his condition and sought a response to the question "And if it is the case that there's evidence before the Commission that there was no work-related incident and there was in fact a coughing… ." [58] The Regulator's objection was that the Appellant was not describing the evidence as it had evolved during the hearing. The Regulator said that the history given to Dr O'Donoghue by the worker showed that he noticed the lump in his groin at home, "it came and went, and he went about his work". The issue became even more problematic as the journal article referenced by Professor O'Rourke refers to a "chronic cough" as opposed to a coughing fit and Professor O'Rourke acknowledged the difference. Certainly, there was no evidence that the worker had a chronic cough. [59] The Appellant is correct in that Mr Freyer was unable to nominate any single event at work which might have caused the hernia. However, Dr O'Donoghue indicated in his evidence that it is often a repetitive strain that is of a low grade nature that over time will result in the development of a hernia. Whilst he acknowledged a hernia condition could become symptomatic when a person is not engaged in manual activity, he was also quite firm in his view the condition could become symptomatic because of recurrent repeated increases in intra-abdominal pressure that added strain and led to the development of a hernia. [60] In my view, Dr O'Donohue's evidence supports the connection between Mr Freyer's work duties and the hernia becoming symptomatic. -- 12 of 13 -- 13 [61] Whilst Professor O'Rourke took the position there was no medical opinion or evidence that muscular activity causes a hernia the paper he attached to his report, which was tendered during the proceedings, noted there was still the possibility of an aggravation factor which may occur in the workplace. Although Professor O'Rourke moved away from this position in his oral evidence, the Appellant did not provide the Commission with any specific examples of research or articles by Professor O'Rourke or others which had been undertaken since the publication of his article that overtly rejected such a possibility. [62] As previously noted, the Appellant also relied heavily on Mr Freyer's report of a coughing fit at the time he noticed his hernia, arguing his coughing could have caused a hernia to become symptomatic. It is clear Professor O'Rouke's article noted a chronic cough, as opposed to a coughing fit as being a common aetiological factor for inguinal hernias. Even if this wasn't the case, I accept Mr Freyer's evidence when asked about the coughing fit in cross-examination where he said: "I guess I would have coughed about six times or something like that at the most. It wasn't like a continuous thing that lasted for, like, 10 minutes or anything." [63] In this matter the Appellant must convince the Commission, on the balance of probabilities, that the injury either did not arise out of or in the course of Mr Freyer's employment as a fitter and turner with Downer EDI Rail; or was one to which his employment was not a significant contributing factor. To meet that test, the Appellant bears the evidential onus of placing evidence before the Commission which goes to that point and it also has the persuasive onus to show that the evidence must persuade the Commission that Mr Freyer's claim should not be have been one for acceptance. [64] Having considered all the materials before the Commission, I am not satisfied the Appellant has discharged its onus in either respect. [65] Accordingly, I order: I. the appeal is dismissed; II. the decision of the Worker's Compensation Regulator of 25 March 2014 is confirmed; III. the Appellant is to pay the Respondent's costs of and incidental to the appeal to be agreed. In the event agreement cannot be reached between the parties with respect to costs, the Respondent has the liberty to apply. -- 13 of 13 --