QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	
	Morrison v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 146
	
PARTIES:	
	Morrison, Miranda
(Appellant)

v

Simon Blackwood (Workers' Compensation Regulator)
(Respondent)
	
CASE NO:
	WC/2014/347	
PROCEEDING:
	Appeal against decision of the Workers' Compensation Regulator
	
DELIVERED ON:
	7 August 2015	
HEARING DATES: 
	16, 17 March 2015
15 April 2015 (Appellant Submissions)
1 May 2015 (Respondent Submissions)
11 May 2015 (Submissions in Reply)
	
MEMBER:
	Deputy President Swan
	
ORDERS	:
	1.	The Appeal is dismissed.
2.	The Appellant is to pay the Respondent's costs of and incidental to the Appeal.
	
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Simon Blackwood (Workers' Compensation Regulator) - whether right inguinal hernia arose out of or in the course of employment - appellant bears onus of proof 
	
CASES:	Workers' Compensation and Rehabilitation Act 2003
Thorsten Groos and WorkCover Queensland (2000) 165 QGIG 106, 107
Saleed v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 028
Davidson v Simon Blackwood (Workers' Compensation Regulator) (2014) ICQ 008

APPEARANCES:	Ms S. Anderson, of Counsel instructed by Shine Lawyers for the Appellant.
Mr S. Gray, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator).

Decision

[1]	Ms Miranda Morrison (the Appellant) has appealed the decision of the Workers' Compensation Regulator of 10 November 2014, which confirmed the WorkCover decision to reject Ms Morrison's notice of claim for damages in accordance with s 32 and s 258(1)(a) of the Workers' Compensation and Rehabilitation Act 2003 (the Act).

[2]	This is a hearing de novo and the Appellant bears the onus of proof on the balance of probabilities.

Witnesses

[3]	Witnesses called by the Appellant were:

•	Ms Miranda Morrison, worker;
•	Dr Robert Parkes, Consultant General Physician.

[4]	Witnesses for the Respondent were:

•	Ms Anna-Marie Donaghue, Registered Nurse, worker's supervisor;
•	Professor Michael O'Rourke, General Surgeon.

	Relevant Legislation

[5]	Section 32 of the WCRA defines "injury" as:

		"32	Meaning of injury

1)	An injury is personal injury arising out of, or in the course of, employment if -

a)	for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury; or
b)	for a psychiatric or psychological disorder - the employment is the major significant contributing factor to the injury.

2)	However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.

3)	Injury includes the following -

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 other than a psychiatric or psychological disorder:
(ii)	a disease;
(iii)	a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation;
				ba)	an aggravation of a psychiatric or psychological disorder, if the aggravation arises out of, or in the course of, employment
c)	loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing;
d)	death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to casing the injury;
e)	death from a disease mentioned in paragraph a), if the employment is a significant contributing factor to the disease;
f)	death from an aggravation mentioned in paragraph b), if the employment is a significant contributing factor to the aggravation.

4)	For subsection (3)(b) and (ba), 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.

5)	…"

	Grounds of appeal

[6]	The Appellant was employed as an assistant nurse with Gracehaven Lutheran Nursing Homes.

[7]	The Appellant's duties as an assistant nurse in a nursing home involved significant, repetitive manual handling.  She considers that these manual duties were a significant contributing factor to her sustaining the hernia.

[8]	The Appellant experienced the onset of abdominal pain in the course of her duties in about August 2012.

[9]	The Appellant notified management on or about 31 August 2012.  Prior to that the Appellant had considered that the injury may have been muscular.  Her supervisor then advised her to attend on her General Practitioner, which she did on 31 August 2012.  Her GP confirmed that she had a right inguinal hernia and referred her to the Bundaberg Base Hospital for further care.

[10]	The Appellant subsequently had a hernia repair performed on 1 September 2012 and a further repair operation 21 September 2012.

[11]	The Appellant relies upon evidence already submitted in this matter in relation to, and held in, WorkCover claim reference S10KE156980 and Workers' Compensation Regulator Review Application r39658.

[12]	The Appellant will also seek to rely on further medical evidence, namely Dr R Parkes and a MRI scan.

	Background to Appellant's claim

[13]	Ms Morrison's claim is that she had sustained a hernia during the course of her employment and that her work was a significant contributing factor to the development of the hernia.  Ms Morrison claims that her work over the period of 6 June 2011 to 14 October 2014 caused her to develop a hernia [Appellant's submissions - point 1].

[14]	Ms Morrison first visited a General Practitioner on 31 August 2012.  She had not recalled this visit but she recalled attending at the emergency department of the Bundaberg Hospital where surgery was undertaken on 1 September 2012 to correct an inguinal hernia [Exhibit 20 - page 20].

[15]	Ms Morrison returned home after 2 September 2012 and while not returning to work, she experienced pain in her groin area and again attended the Bundaberg Hospital on 21 September 2012.

[16]	A second scan showed an "incarcerated hernia".  Ms Morrison had presented with a right femoral hernia three weeks post-inguinal hernia repair [Exhibit 5 - page 5].  She was also experiencing increasing groin pain at the time.  An ultrasound was undertaken, which showed a femoral hernia for which she was referred for a surgical revision.  The surgical notes referred to an "inguinal hernia".  The Appellant says that this identification of the type of hernia is irrelevant because Ms Morrison's claim is for a hernia.

[17]	Ms Morrison said she did not return to work after her first surgery.  She provided a medical certificate for 2 September 2012 and another dated 21 September 2012.  Dr Parkes believed that there had been two hernias and that they would have been two centimetres apart.  The Appellant stresses that it was the first hernia (an inguinal hernia) that caused Ms Morrison to lodge her application for compensation.

	Medical Evidence

[18]	The Appellant states that Dr Parkes stated that Ms Morrison's work was a significant contributing factor in the development of her hernia [Exhibit 4 - page 7].  He said that while there may be a congenital tendency towards the development of a hernia, the hernia would only become apparent and painful if something triggers it.

[19]	Of the type of things which could trigger Ms Morrison's condition (in Ms Morrison's case - cigarette smoking), he could only see her occupation as being a significant contributing factor to the development of the hernia.  Dr Parkes said that with Ms Morrison's limited cigarette smoking history (5 years as an adult, with an occasional cigarette smoked whilst on a break at work) he thought that this could be a contributing factor but not a significant contributing factor. 

[20]	Dr Parkes said that if heavy weights were lifted, either over a lifetime or in a work situation for some period of time, there was a greater possibility for the occurrence of a hernia that becomes clinically apparent [T1-53].

[21]	The Appellant said that Professor O'Rourke's report for WorkCover dated 7 August 2014 provided no view as to whether or not work was a significant contributing factor to the development of Ms Morrison's hernia.

[22]	The Respondent accepts that Ms Morrison described her work activities as being physical in nature and that evidence was not contested.

[23]	Ms Donaghue, who was Ms Morrison's part-time supervisor, was unaware of how many obese patients Ms Morrison was caring for, but did not disagree with Ms Morrison's evidence that there may have been around 20 residents in that category.  While acknowledging that Ms Morrison's work could be heavy work, she did not recall whether Ms Morrison had discussed the development of her hernia with her [T2-5].

[24]	Dr Parkes' Report states that the history given to him by Ms Morrison was, inter alia, as follows: 

"Ms Morrison was employed in a nursing home that cared for 70 clients.  She recalls that greater than 75% were receiving high level care, but she believes that the facility was understaffed.  There were two principal duties on night shift. One was to act as a "floater" answering buzzers and attending to clients' needs as required.  The other principal duty was to turn clients on a regular basis.  She believes that 50% percent or more clients required turning on a two hourly basis, and that whilst she and a colleague would turn a patient, on at least two occasions per shift she would be required to do this herself.
The process of turning involved two attendants lifting a patient from one side of the bed to the other.  She would do two to three rounds and accordingly she would turn at least 70 clients, possibly up to 130 in a night shift.  Other duties included assistance with feeding, dressing, making beds, bathing and showering."

[25]	There was some debate between Counsel concerning when the medical specialists' reports had been shown to the each side.  The Appellant objected to the Regulator asking further questions of Professor O'Rourke in examination in chief as Dr Parkes' Report had been provided at an earlier date, sufficient for the Regulator to review it.  The Regulator pressed the point that it wished to ask further questions in examination in chief of Professor O'Rourke as the Appellant had only delivered an addendum report from Dr Parkes on the previous day.

[26]	The matter was resolved, by permitting the examination in chief from the Regulator with the understanding that if the Appellant thought areas were being traversed upon which it had not had the opportunity to examine with its witness, then an objection could be made at that stage.

[27]	Professor O'Rourke discussed two types of hernias.  A direct hernia which was associated with degeneration and an indirect hernia which was congenital in nature [T2-29]. 

[28]	Professor O'Rourke had not accepted some of Dr Parkes' opinions.  He questioned the type of pain experienced by Ms Morrison as reported to Dr Parkes identifying the differences between neuropathic and somatic pain, for example.

[29]	Primarily, Professor O'Rourke's assertion is that "there has never ever been a prospective paper that shows that current lifting or lifting causes a hernia".  Professor O'Rourke continued by stating that "Frequent heavy lifting increases the tone and increases the strength of the muscles wherever they are, the arm, the leg or the abdomen" [T2-26].

[30]	Professor O'Rourke also said that "… the literature suggests that if it is work induced, what actually happens at work, there has to be an incident at work reported at the time and, therefore, that incident may well - it's not the cause, but it may well bring the hernia on to attention or to present at a somewhat earlier date" [T2-27].

[31]	Professor O'Rourke responded to the following question from the Appellant "Right, in so far as the complaint by Ms Morrison about the - what she describes as heavy work - heavy work duties associated with rolling patients, rolling the residents in the bed…?"  Professor O'Rourke - "Okay.  Well, without - without an incident at work, I believe the hernia is inevitable" [T2-27].

[32]	When questioned by the Appellant, Professor O'Rourke said that he had not seen any medical reports from the Bundaberg Hospital when writing his Report.  He was unaware that Ms Morrison had two hernias - one inguinal and one femoral.  All that Professor O'Rourke was aware of was that Ms Morrison had an inguinal hernia and, after its repair, she had a second repair because she was told that something had happened to the mesh used in that operation [T2-30].

[33]	Professor O'Rourke, notwithstanding being asked a range of further questions by the Appellant concerning the possible mechanism of the injury, responded "All I can say is that's the history I took and it's not a history to me of a single incident which talks of a particular thing" [T2-36].

[34]	Professor O'Rourke stated that he was well aware of the type of work performed by an aid in nursing.  He stated, "I've probably taken a history from an aid of nursing 25 times or 30 times.  That they're on at night, they've got to move patients.  They fall out of bed.  They've got to turn them.  They've got to sometimes put them into wheelchairs and take them to the toilet, and they've got to feed them and they've got to give them medication.  And I - you know, what else is there to know?"

[35]	Professor O'Rourke held to his view that he had been given no history of any specific incident at work by Ms Morrison.  He added "If somebody was doing something strenuous or strange or twisting in a funny direction and they got a sudden problem which they reported there and then at that moment and said - and then immediately followed both the appearance - not immediately, but within a week or two of [indistinct] a lump or that - that would [indistinct] be considered as a key significant contributory factor, and I have to live with that because that's the law, but the surgical profession believe that it's inevitable anyway."  

[36]	When requested by the Commission to answer a question posed by the Appellant outlining the type of work performed by Ms Morrison, Professor O'Rourke responded:

"I've worked in hospitals, I can say, for 50 years and I've seen more -  more of that than you've ever seen in your life and I've seen patients lifted, moved, everything in beds 10,000 times - not 10,000, probably 5,000 times, so I'm cognisant of that much more than you are and I - if any - if it is a situation where people do something which involves some form of- and I don't believe that that's unusual work or unusual twisting, and I don't know if you're able to watch people turned in beds but there's a special way of doing it, but all I can say is if she developed - if anybody developed then a sudden pain and reported at that moment after doing something that was unusual during that procedure, that may well be a significant contributing factor, but I didn't get that history and I still don't believe it" [T2-140].

[37]	When asked to express a view on whether the work activities could have been an aggravation of a pre-existing condition, Professor O'Rourke stated that it may well be that the hernia has been there all of Ms Morrison's life and that it had only come on during her time at work; but whether in fact work is a specific aetiological factor is debateable.

[38]	Dr Parkes had relied on Ms Morrison being required to turn a patient by herself.  In her evidence though, Ms Morrison said the only time that she would have turned a patient by herself would have been on 2 or 3 occasions, and not on every shift.  She said that had only happened with the type of patient who did not need much help to turn because they could mostly do it themselves.  She never lifted or turned patients by herself.

[39]	Dr Parkes said that repetitive lifting of a client, with a weight above 70 kilograms (i.e. 35 kilograms on a regular basis for each attendant) is the dominant aetiological factor behind the development of Ms Morrison's hernia [Exhibit 4, page 6].

[40]	Dr Parkes was asked to explain what he understood to be "heavy lifting": 

"In this report, they didn't actually specify it, but I - I think that the - the nexus is between that and straining lifting, so - and you'll note that the hospital has a - a no - lift policy, but unfortunately, to turn people, they actually have to lift half a person and move them to the other side of the bed; and if one's doing that to an immobile patient, then I would regard that as heavy lifting." [T.1-54, ll.5-15].
[41]	Dr Parkes said that Ms Morrison had reported that on a number of occasions during the night, she was required to lift a 'whole patient' by herself.  He believed that had involved "lifting their upper trunk and if necessary their lower trunks; transferring them to the other side of the bed and turning them" [T1-57].

[42]	The Regulator said that Dr Parkes' opinion was only useful if he had properly understood the type of work being performed by Ms Morrison.  In its view, Dr Parkes' opinion was based upon different work scenarios to those described in evidence by Ms Morrison.

[43]	The Respondent claimed that Ms Morrison's evidence related to manoeuvring patients rather than lifting them.  She said that her partner would place herself on the other side of a patient's bed and a slide sheet would be used to turn the patient.  Expanding upon this, she said that the theory behind moving a patient on a slide sheet was to make the process easier, but that it was difficult not to use one's own weight to move a patient.  This was partly because some patients were very heavy and the process could become difficult.  

[44]	The Appellant stated in submissions that something had triggered Ms Morrison's hernia, as described by Dr Parkes.  It was reiterated that the only significant thing which was capable of triggering it was her work.  Ms Morrison 's evidence was that she reported her situation when at work to her supervisor.  The Appellant asserted that neither of those propositions were challenged in cross-examination and therefore ought to be accepted.

	Submissions

[45]	The Appellant cited Thorsten Groos and WorkCover Queensland ((2000) where Hall P stated:

	"The question whether an applicant for compensation has suffered an 'injury' within the meaning of the Workers' Compensation Act 1990 is a question of mixed fact and law on which medical evidence is often helpful, but necessarily not decisive."

[46]	In the circumstances of this case, The Appellant stated that the medical evidence of Dr Parkes was that a person may have a pre-disposition to sustain a hernia, but that the hernia will only become apparent - meaning symptomatic - as a result of a triggering event. 

[47]	Also relied upon was the decision Saleed v Simon Blackwood (Workers' Compensation Regulator where Neate C stated:

	"For present purposes, the decisions in Pleming and Carman support a finding that a person with a pre-existing degenerative physiological condition can suffer an 'injury' (as defined) where the symptoms become painful or more painful, the pain arose out of or in the course of the person's employment, and the person's employment is a significant contributing factor to the onset or intensification of that pain."

[48]	Primarily, the Appellant's claim is that Ms Morrison's evidence was that she noticed a lump and felt pain.  This is a factor both Doctors recognise as the development of the hernia.  The Appellant claims that this occurred in the course of her employment.

[49]	Ms Morrison described no other activities, which could have given rise to the development of her hernia.  The Appellant said that, contrary to Professor Rourke's opinion, her hernia was not inevitable.  The Appellant submitted that on the evidence the only activity that could have been a significant contributing factor was her work.

[50]	The Respondent's submissions were that, having regard to all of the evidence, the Commission could not find in favour of Ms Morrison.  It is submitted that Ms Morrison's specific work duties associated with the manoeuvring of patients does not have the necessary causal connection to the development of her inguinal hernia.

[51]	In the course of her evidence, Ms Morrison had referred to a further duty performed by her at work - i.e. that of moving heavy laundry trolleys on a regular basis.  The Respondent said that Ms Morrison had never given her description of moving laundry trolleys to the medical specialists and Dr Parkes specifically was not asked to express any opinion as to how that work might have affected her.

[52]	The Respondent saw this as fatal to Ms Morrison's claim particularly when the Appellant had the opportunity to discuss this with Dr Parkes on the morning of 16 March 2015 when the hearing commenced.  Dr Parkes had expressed no opinion about those work activities. 

[53]	The Respondent referred to Martin P in Davidson v Blackwood where he stated:

	"The appellant's case concentrated on Dr Curtis' evidence and the reasons for accepting it.  The evidence called for the respondent was preferred by the Deputy President.  That evidence, on a proper reading of the transcript and the reports which were tendered, leads to the conclusion that the appellant's case was sufficient to establish the possibility that the personal injury complained of arose in the relevant way from the 2010 fall.  But, it was insufficient to demonstrate, on the balance of probabilities, that the fall was a significant contributing factor."

[54]	Primarily, the Respondent says that any evidence which might have been favourable to Ms Morrison proves no more than a possibility that there is some contribution from her employment activities.  It is submitted that is insufficient to discharge the burden of proof carried by her.

	Conclusion

[55]	One of the difficulties in this matter relates to the marked difference in the medical opinion of both Specialists - one a Consultant Physician and the other a General Surgeon.

[56]	Ms Morrison appears to have given a somewhat different history to Dr Parkes of her work duties than what was given during her evidence.  While there are occasions when the history given to a medical specialist by an Appellant might differ from the actual evidence given by them during the course of the hearing, if those differences do not significantly affect the general thrust of the Appellant's claim and the medical specialist's report, then they may be accepted on that basis.  Certainly, in the history reported to Dr Parkes, there appeared to be some embellishment on Ms Morrison's part when compared to the evidence which was given in the hearing.

[57]	Firstly, there is no doubt about the general type of work performed by Ms Morrison.  I have accepted the evidence of Ms Morrison and also that of Ms O'Donaghue that the work could be classified at times as 'heavy work'. 

[58]	Dr Parkes's evidence was that Ms Morrison advised him that she was required to lift patients when turning them in their beds and that on at least two occasions per evening she would be required to turn a patient on her own - i.e. lifting the "whole patient" which meant "lifting their upper trunk and if necessary, their lower trunks and transferring them to the other side of the bed and turning them".

[59]	Notwithstanding that history considered by Dr Parkes, his overall opinion was that there had to be a 'trigger' for the hernia and that trigger in this case was the 'heavy lifting' she had performed at work.  He based this opinion upon the current literature that he had accessed and his knowledge as a Consultant Physician where his field was internal medicine.

[60]	Professor O'Rourke held a stridently different opinion to that of Dr Parkes.  His opinion was relatively blunt and somewhat combative in that he refused, at one point, to continue to answer questions from the Appellant saying that he had answered the questions before and his opinion was not going to change. 

[61]	He said there was no evidence either in the current medical literature, or in his opinion, which showed that 'heavy lifting' or 'lifting' could cause a hernia.  He said that there had to be an incident at work, which was reported at the time.  The incident would not be the cause of the hernia, but it could bring the hernia to the attention of the worker.  He also stated that without an incident at work, a hernia in any event is inevitable.

[62]	Neither medical specialist attached any 'medical literature' to their Reports.

[63]	In Thorsten Groos and WorkCover Queensland (2000) 165 QGIG 106, 107, Hall P said that:
 
		"The question whether an applicant for compensation has suffered an 'injury' within the meaning of the Workers' Compensation Act 1990 is a question of mixed facts and law on which medical evidence is often helpful, but not necessarily not decisive." 

[64]	It is a matter of fact that Ms Morrison underwent surgery at the Bundaberg Hospital for a hernia repair.  Notwithstanding Ms Morrison's report of her history to Dr Parkes, I have accepted her evidence that she often performed heavy work.  This was corroborated by Ms Donaghue. 

[65]	Certainly, Professor O'Rourke's opinion does not assist Ms Morrison's claim.  However, even on the evidence of Dr Parkes', were it to be accepted, Ms Morrison's own evidence was that she was not performing 'heavy lifting' whilst at work.  In my view, the evidence establishes that the work was related to manoeuvring patients on their beds with the assistance of others.  I have not accepted that the work involved 'heavy lifting' as described by Dr Parkes sufficient to 'trigger' the type of response he envisaged from such lifting.  In forming that view, I have also taken into consideration the history Ms Morrison had given to him which was markedly different to the evidence she had given before the Commission.

[66]	Davidson and Blackwood, in my view, identifies the type of situation which is apposite to Ms Morrison's position i.e. "that the appellant's case was sufficient to establish the possibility that the personal injury complained of arose in the relevant way from the 2010 fall.  But, it was insufficient to demonstrate, on the balance of probabilities, that the fall was a significant contributing factor."

[67]	Pursuant to s 32 of the Act, the injury suffered by Ms Morrison did not arise out of or in the course of employment and employment is not a significant factor contributing to the injury.

[68]	For those reasons, the Appeal is dismissed.

[69]	The Appellant is to pay the Respondent's costs of and incidental to the Appeal.

[70]	Order accordingly.