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Hernia and mental injury not work-related

Tribunal has upheld an insurer’s decision to reject the compensation claim.
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Hernia and mental injury not work-related

Hernia and mental injury not work-related

29 March 2021

By Gaby Grammeno

A tribunal has upheld an insurer’s decision to reject a worker’s claim for compensation, finding that neither his hernia nor his psychological condition were caused by his work.

The hernia claims

The worker was employed as a garbage truck driver with a waste management company. He claimed that moving a heavily loaded, wheeled bin while working in July 2016 had given him a hernia.

His account of what had happened was different from that of another worker, however, and a delay of many days before he reported the incident, saw a GP and applied for workers comp seemed inconsistent with his claim.

After an ultrasound, the worker was referred to a surgeon who carried out a hernia repair in September. He returned to work in October on restricted duties and went back to his pre-injury duties from 5 November 2016.

His stomach pains persisted, and he claimed the hernia reoccurred in March 2017, after which he was certified as unfit for work for several weeks. Again he claimed workers comp, citing a hernia affecting his stomach. On later examination. the surgeon who had operated on him before reported that there was no recurrence of the hernia.

In May his GP said he was fit for restricted duties including no lifting of loads over 5kg.

In July 2017 he returned to full duties, but soon claimed his work activities had made the hernia problem flare up again. His employer referred him to an occupational physician who cast doubt on the worker’s claims.

The occupational physician did not believe the worker was suffering from any injury or condition as a result of incidents on the job, because of inconsistencies in the worker’s symptoms, assertions and conduct. The physician said that in his opinion, there was no need for the 5kg lifting limit.

The worker returned to his pre-injury duties but on restricted hours. In his first week back on the job, he claimed to have hurt his stomach lifting loads, and raised concerns with his supervisor about the 5kg lifting limit having been disregarded.

The following month, however, he was seen lifting a 20kg bag of cement, which he admitted managing without a problem.

The mental health claims

In October 2017 a psychiatrist said he was suffering from severe depression connected with fluctuating pain emanating from a workplace injury suffered in July 2017.

Two months later, another psychiatric assessment diagnosed his as suffering from a ‘chronic adjustment disorder with a mixed disturbance of emotions’, of mild to moderate severity, which he said seemed to be broadly related to work stress, considering his perceptions of poor, unsatisfactory and unfair treatment by his employer, specifically his return to full duties in July 2017.

Several more medical assessments citing depression were made over the following two years. One in December 2018 attributed the worker’s adjustment disorder to stressors including the occupational physician’s comment that he risked losing his job. Other stressors mentioned by the assessment were disputes about suitable duties, disappointment at having missed out on a different job he’d applied for - which would have been less physically demanding - and a warning letter from his employer in relation to a performance management issue.

The worker claimed compensation for his mental health condition but the claim was rejected, as were his other claims relating to his alleged hernia.

The worker sought a review of these decisions and the case was heard in the Administrative Appeals Tribunal of Australia.

Evidence was ‘bizarre’

In considering the evidence, the Tribunal’s Senior Member noted that many of the testimonies did not support the worker’s claims.

He said the worker tended to make wild, overbearing allegations for which he had no proper basis, significantly damaging his credibility as a litigant. He described the worker’s comments in some instances as ‘appalling’, ‘staggering’ and ‘bizarre’, and discounted most of the worker’s claims, preferring evidence to the contrary.

The senior member concluded that any umbilical hernia was not due to heavy lifting, but rather to weakness resulting from degeneration of the tissues in the worker’s stomach area together with a general lack of fitness.

The employer was not liable for the occupational physician’s comment that he risked losing his job, and management had been supportive and encouraged him in his application for a different position.

The tribunal found that the worker’s psychological condition was not related to his employment. It therefore upheld all the decisions denying liability for workers compensation.

The bottom line: Claims that physical or mental injuries are work-related must be credible and supported by evidence, for a worker to be entitled to compensation.

Read the judgment

Barry and Cleanaway Operations Pty Ltd (Compensation) [2021] AATA 369 (3 March 2021)

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