Extract from Queensland Government Industrial Gazette s1

[Extract from Queensland Government Industrial Gazette, dated 16 March, 2007, Vol. 184, No. 11, pages 170-173]

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission

Volvo Commercial Vehicles Australia Pty Ltd AND Q-COMP (WC/2006/71)

COMMISSIONER FISHER 7 March 2007

Appeal against decision of insurer - Workers' Compensation and Rehabilitation Act 2003 s. 550 - Original claim rejected by WorkCover Queensland - Claimant applies for review - Q-COMP accepts claim - Employer company appeals Q-COMP decision to accept claim - Claimant joined as party to appeal s. 549 - Background - Medical evidence - Conflicting medical opinions - Vascular in origin vs perilymph fistula - Claimant's leave entitlements exhausted at time of the injury - Symptoms found genuine and first experienced at work - Medical specialists accept possibility of other's opinion - Injury found to fall within meaning of the Act - Appeal dismissed.

DECISION

Volvo Commercial Vehicles Australia Pty Ltd (Volvo) has appealed a decision of Q-COMP allowing a claim for compensation made by Robert Burns, an employee of Volvo. Mr Burns' claim for workers' compensation was rejected by WorkCover Queensland (WorkCover) on 10 May 2006 on the grounds that he had not sustained an injury within the meaning of the Workers' Compensation and Rehabilitation Act 2003 (the Act). Mr Burns applied for a review of the decision to Q-COMP on 19 July 2006. Q-COMP set aside the decision of WorkCover and accepted the claim on 15 September 2006. In so doing Q-COMP accepted that Mr Burns' injury arose in the course of his employment to which employment was a significant contributing factor. It is from that decision that Volvo now appeals.

Mr Burns was joined as a party to the appeal pursuant to s. 549 of the Act.

Background

Mr Burns has been employed as an auto electrician in the Volvo workshop since 27 November 2004. He has been a tradesman for more than 25 years. On 11 January 2006 Mr Burns was working the 2.30 p.m. - 10.30 p.m. shift. At about 9.30 p.m. he was asked to look at a light on the dashboard of a truck that would not go off. In order to try to find the fault Mr Burns had to remove an air filter. This was not part of his usual duties. Mr Burns lay down under the truck and then raised himself into a 3/4 seated position where he grabbed at the filter and applied force to remove it. He said the filter was tight and that he was under a deal of strain to remove it.

Mr Burns said that he does not recall much of what happened afterwards except that he felt ringing in his ear and when he stood up he felt giddy, light-headed and nauseous. He thought he was coming down with the flu but had not felt any symptoms prior to straining to remove the filter. Mr Burns said he filled out the job card and vaguely remembers driving home.

On waking the next morning Mr Burns said he still felt ringing in his ear, his ear felt full, he could not walk straight and had balance problems. He saw his GP, Dr Neuendorf, and after the consultation, went to Volvo where he advised he would not be attending for work.

Dr Neuendorf referred Mr Burns to Dr Szallasi, a specialist in otolaryngology, head and neck surgery. Dr Szallasi first saw Mr Burns on 14 February 2006. At this consultation Mr Burns reported to Dr Szallasi that he went deaf in the right ear, had some dizziness and that this had started approximately one month ago. There was nothing in Dr Szallasi's clinical notes that connected the reported symptoms to the events Mr Burns said he had experienced at work on 11 January 2006. Indeed, in his evidence Dr Szallasi accepted that he did not take a full medical history from Mr Burns. At the first consultation however, Dr Szallasi said he wanted Mr Burns to undergo an audiogram to confirm the hearing loss before going further.

Dr Szallasi next saw Mr Burns on 20 February 2006 and again there was no mention of the injury being work-related. Mr Burns had an MRI scan on 6 March 2006 to exclude the possibility of a tumour being the cause of the symptoms. Fortunately, the MRI was clear. Ultimately, Dr Szallasi diagnosed the condition as being a perilymph fistula.

Mr Burns did not connect the events of 11 January 2006 with his condition until 8 March 2006. By then Mr Burns had returned to Volvo on modified duties and reduced hours. On that day Mr Burns was working on an alternator belt. When he went to loosen the nut he experienced a loud ringing in his right ear. He said he recognised this as the same symptoms he had experienced on 11 January 2006. 2

At no time did Mr Burns complete an incident report either in relation to the events of 11 January 2006 or 8 March 2006. It was not until 21 March 2006 that Mr Burns completed a claim for workers' compensation. (It was not submitted to WorkCover until 10 April 2006). As at 11 January 2006 Mr Burns did not have any remaining entitlement to sick leave or other leave.

Dr Szallasi said that the first he was aware that Mr Burns' injury could be work-related was when he received correspondence from WorkCover dated 11 April 2006. On receipt of the letter Dr Szallasi said he telephoned Mr Burns and asked him to describe in detail the events at work on 11 January 2006. Dr Szallasi did not have a file note of the conversation but said the history he took from Mr Burns at that time was recorded in his letter to WorkCover of 26 April 2006. Mr Burns had no recollection of the conversation.

The Medical Evidence

Dr Szallasi described a perilymph fistula as a condition where there is a leakage of fluids from the inner ear to the spaces of the middle ear. This is caused by changes in pressure in the head due to exertion or head or neck injuries. Suspended in the fluid sacs are nerve endings which are essential for the functioning of hearing and balance. If the fluid sacs are ruptured then the common symptoms that result are hearing loss and balance disturbances. Although most commonly the symptoms follow the pressure event relatively quickly he considered that a small rupture may delay the onset of symptoms for between 12 and 36 hours. In the case of a minor perilymph fistula the typical signs are fullness or pressure in the ear and a change in the level of hearing.

Dr Szallasi accepted that the commonly held view in the case of a person presenting with sudden hearing loss and balance disturbance is that they have either suffered a vascular or viral event. For a vascular event some evidence of a vascular history would be looked for. Given Mr Burns' age this was investigated but no evidence of such an event was present. In his opinion it was more likely for hearing loss and balance disturbances to cluster together in time with a vascular event than with a perilymph fistula. This is because a vascular event is a clearly defined point at which the circulation of the inner ear is interrupted.

In Dr Szallasi's opinion the most feasible explanation of Mr Burns' symptoms of giddiness and nausea followed some hours later by deafness and vertigo was a perilymph fistula caused by straining to remove the air filter on the truck.

Mr Burns was referred to Dr Coman, Professor of otolaryngology, head and neck surgery by WorkCover. Professor Coman saw Mr Burns on 11 October 2006. Professor Coman had been provided with Mr Burns' statement to WorkCover and his application for compensation. Professor Coman recorded only brief notes about the events of 11 January 2006. Mr Burns said this was because he had tried to provide Professor Coman with a statement regarding this but he had refused to take it. Further, Mr Burns said he was not feeling well on the day.

Professor Coman said in his report to WorkCover that he could find no evidence historically or objectively that Mr Burns had suffered a perilymph fistula related to his work. He advised that Mr Burns' symptoms began at work but the total hearing loss and severe giddiness occurred when he awoke the next day. It was Professor Coman's opinion that Mr Burns suffered a sudden loss of hearing and vestibula function which was most likely to be vascular in origin.

In his evidence Professor Coman said that sudden hearing loss could have many causes, the most common of which was vascular. In his opinion the hearing loss was less likely to be caused by a perilymph fistula which results from a sudden change in intracranial pressure. That change in pressure can be caused by any number of events including head trauma, diving, and in some cases coughing and sneezing. However, Professor Coman said that people who experience a perilymph fistula are more likely to have certain conditions that predispose them to it. These conditions were not present in Mr Burns. Further, the symptoms reported by Mr Burns of giddiness and light-headedness are associated with changes in blood flow which a vascular event is more likely to have caused. Professor Coman also said that it was more usual for a perilymph fistula to be found when the hearing loss occurs at the same time as the exertion. Here, where hearing loss was reported the next day, Professor Coman considered that the cause was vascular in origin. He said the presence of a vascular history was unnecessary for sudden hearing loss to have vascular origins.

In response to Professor Coman's opinion that no evidence was found of a perilymph fistula, Dr Szallasi said an examination in October for an event which occurred in the previous January would not have revealed any such evidence. In cross-examination Professor Coman acknowledged this would be the case. In addition, in relation to the predisposing factors, Dr Szallasi advised that ruptures have been described on normal ears without those factors being present.

The Factual Argument

Volvo submitted that the Commission should draw adverse conclusions in light of the delay between Mr Burns experiencing the symptoms and his lodging the claim for workers' compensation and also because of the variation in accounts given by Mr Burns to various treating practitioners (Dr Szallasi, Professor Coman and an occupational therapist). In particular, Volvo argued that the failure by Mr Burns to connect the events of 11 January 2006 to his 3 injury until 8 March 2006 and his failure to report the events of 11 January 2006 to any of his treating practitioners should lead to the Commission finding that Mr Burns is either unreliable or untruthful.

Volvo tried to cast further doubt on Mr Burns' credibility by drawing attention to the number of workers' compensation claims made by Mr Burns and attempted to argue that Mr Burns only made an application for workers' compensation because his leave entitlements were exhausted. The inferences that Volvo attempted to draw were rejected by Mr Burns.

Conclusion

This is a hearing de novo. In this matter the Commission has to determine whether the injury suffered by Mr Burns is an injury within the meaning of s. 32 of the Act, that is, that the injury is a personal injury arising out of or in the course of employment if the employment was a significant contributing factor to it. To do this it is necessary to resolve the competing diagnoses of Professor Coman and Dr Szallasi, two medical specialists practising in the same speciality. The opinion of Professor Coman is that the injury was vascular in origin and work was not a contributing factor whereas Dr Szallasi is of the opinion that the injury was a perilymph fistula caused by the work performed by Mr Burns. The Commission must consider the medical evidence and be satisfied on the balance of probabilities that the injury falls within the meaning of the Act. Further, the medical evidence and the facts of the case must be sufficient to allow the Commission to conclude that the injury arose out of or in the course of the employment.

Dealing first with the factual argument. Volvo has submitted that the Commission should find that Mr Burns is unreliable because he failed to report to three professionals the events of 11 January 2006. However, at the time of his consultations with Dr Szallasi in February and March 2006, Mr Burns had not made the connection between his injury and the straining to remove the air filter. Similarly, the appointment with the occupational therapist preceded the recurrence of the symptoms at work. Mr Burns' reasons for not informing Professor Coman are recounted above. It must be noted however that at the time of the consultation with Professor Coman he had access to the statement of reasons provided by Mr Burns to WorkCover and was aware from that of the connection Mr Burns was making between work and his injury.

It is the case that Mr Burns has made several claims for workers' compensation in the past. He also had no leave entitlements remaining at the time of the injury. Mr Burns was aware of this having been informed on 3 January 2006 that he had exhausted his sick leave entitlement. However, the fact that Mr Burns did not make the connection immediately between the events of 11 January 2006 and his injury and did not submit an immediate claim for compensation does not lead me to consider that Mr Burns is unreliable or untruthful. He did not act with haste, he had been advised by Dr Szallasi that the cause of the symptoms could be a tumour and it was only when this possibility had been excluded and he experienced the same symptoms at the workplace again that he realised there might be a connection between his employment and his injury. One might have thought that if this was a grab for benefits without any underlying entitlement that the claim would have been made shortly after 11 January 2006 when Mr Burns was aware that he had no remaining leave entitlements.

The only factual evidence is that presented by Mr Burns. No-one else from Volvo was called to give evidence about the matter.

On the available facts Mr Burns worked late on the night of 11 January 2006. I accept Mr Burns' evidence that whilst working that night he suffered symptoms of ringing in his ear, giddiness and nausea after straining to remove an air filter on a truck. Those symptoms worsened overnight and by the morning he had experienced hearing loss, vertigo and nausea. Those symptoms were reported to Dr Neuendorf the next day.

In the absence of contrary evidence and given the description provided by Mr Burns of his symptoms I am satisfied that his symptoms were genuine and first experienced while he was working. Further, as conceded by Professor Coman in cross-examination, the condition is not one which a lay person would have identified. In accordance with the submission made on behalf of Mr Burns, I accept that Mr Burns could not be expected to identify either the nature of the condition or its cause.

It is true that Dr Szallasi did not diagnose a perilymph fistula as being the cause of the symptoms until he received correspondence from WorkCover alerting him to the claim made by Mr Burns in which he referred to the workplace incident of 11 January 2006. Only then did Dr Szallasi seek to clarify this with Mr Burns by telephone.

The evidence of the telephone call was surprising and not verified by Mr Burns.

Dr Szallasi's first report to WorkCover was less than certain. In that report dated 26 April 2006 Dr Szallasi said the type of activity engaged in by Mr Burns raised the possibility of a perilymph fistula. However, this view had firmed by his further report of 27 June 2006 when he stated "a perilymph fistula is a very likely explanation for what has happened and in view of the condition ought to be considered work related". 4

While I have doubt that the telephone call occurred I do not then as matter of course reject Dr Szallasi's diagnosis. The correspondence from WorkCover seems to have narrowed the possible diagnoses at a time when other explanations after testing were diminishing.

There is credible evidence to support each specialist's opinion and both accept the possibility of the other's opinion.

A perilymph fistula is acknowledged by both specialists to be a possible cause of Mr Burns' symptoms. The difficulty with the diagnosis of a perilymph fistula is that most fistulas heal spontaneously and there appears to be no way of absolutely confirming the diagnosis. Certainly by the time Professor Coman examined Mr Burns any remnants of a fistula were unlikely to be found due to the lapse of time between the appearance of the symptoms and Mr Burns' consultation with him.

The specialists are divided over the significance of a vascular history and the import of the delay between the pressure event and hearing loss. Professor Coman's preferred opinion is that the symptoms were caused by a vascular event. This is the most common explanation for sudden hearing loss but it is not the only available and plausible explanation. Dr Szallasi has explained that a small leak could be responsible for the delay and that predisposing factors are not necessary for a perilymph fistula to occur.

Having regard to the evidence I cannot be satisfied that it was more probable than not that the cause of the symptoms was vascular rather the pressure event arising from strain caused by the removal of the air filter. Accordingly, I find that the injury suffered by Mr Burns is one that falls within the meaning of the Act.

The appeal is dismissed.

Order accordingly.

G.K. FISHER, Commissioner. Appearances: Mr J. Dwyer (directly instructed) with him Ms S. Stubbings for Australian Hearing Details: Industry Group, Industrial Organisation of Employers (Queensland) on 2007 12 February behalf of Volvo Commercial Vehicles Australia Pty Ltd. Mr C.J. Clark (instructed by Ms B. Wadley of Q-COMP) for the first Released: 7 March 2007 respondent. Mr J.M. Harper (instructed by Ms M. Bartonkova of Maurice Blackburn Cashman) for the second respondent.

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