Employer defeated: ‘trivial event’ not the cause of delayed onset severe pain

A sheet metal worker whose delayed onset severe pain began several hours after the injury event has defeated his employer’s contention that his symptoms were caused by a trivial incident unconnected to his work.

Michael Kup-Ferroth’s role with A1 Custom Stainless and Kitchens was the fabrication and installation of commercial kitchen fit-outs.

In July 2016 the 26-yr-old was directed by boss Colin Powell – who arrived at the ‘Aussie Rooster’ installation site for an inspection – to help him position a 120 kg kitchen benchtop for repair.

The two lifted the damaged benchtop off the floor and manoeuvred it out of the storeroom – with Ferroth walking backwards and struggling to carry the weight – into the kitchen and positioned it on top of the fitted cupboards.

Powell then directed he lift one end so it could be “chocked up” to enable repair work to be done underneath.

Subsequent to the first lift, Ferroth started to have pain in his lumbar spine, which persisted during the second lift and for the rest of the day.

It wasn’t until later in the day – when back at the A1 workshop he turned to wave goodbye to a colleague – that the excruciating pain began.

He attempted to work the next day but left within the first hour and has not worked since.

The inevitable injury compensation claim asserted the lifts were unsafe and several more employees should have been enlisted to assist.

In its defence, the kitchen outfitters contended his injury was the exacerbation of an existing back condition caused by the twisting of his back when turning to wave goodbye.

On that basis it asserted that his employment was irrelevant to the injury occurrence.

Neurologist Don Todman observed that the biomechanical forces placed on his spine during the lifts were consistent with the injury and were “compounded by the twisted and bent over positions he had to adopt while performing his work that day”.

He concluded that the L5/S1 disc protrusion was a long-standing injury that was aggravated by the July 2016 events and reported a 7% impairment attributable to that aggravation.

He also noted that Mr Ferroth “had been mostly symptom-free” prior to the incident and that it was not unusual for the onset of severe pain to be delayed until sometime after the trauma that is responsible for it.

Spinal surgeon Bruce McPhee of the other hand – premised on his view that the post-incident images of the L5/S1 disc protrusion showed the same pathology that could be seen in a 2012 MRI – swore that the cause of the aggravation was indeed the trivial incident the worker reported at the end of the day.

Dr McPhee did not however know of the earlier lifting incidents. Although he testified that he “probably would have asked” about any prior work-related triggering events, he did not keep any consultation notes which might have confirmed that.

The kitchen company also pointed to Ferroth’s differing explanations of what had occurred – to co-workers, safety engineer Roger Kahler, his treating doctors and various medical specialists – about what it happened. Some referred to the heavy lifting and others referred to the “trivial incident” of turning to say goodbye.

In cross examination the worker explained that the accounts only differed because the questions to which they responded were different.

In accepting that explanation, Judge Ken Barlow QC observed Ferroth did not think to mention the lifting incidents as a possible cause of his pain except when he was specifically asked about his earlier-in-the-day activities.

“All these answers appeared to be spontaneous and had the ring of truth about them,” His Honour noted in concluding that the different reports were of no consequence and that Mr Ferroth’s evidence should be preferred about what had occurred.

He also accepted Mr Kahler’s evidence based on the Hazardous Manual Tasks Code of Practice 2011, that the weight carried by the worker exposed him to 3 times the risk of injury than would have been the case if a safe lifting limit (23kg) had been observed.

After concluding that the those incidents were the cause of his severe back pain and that A1 was negligent in requiring the worker to perform the lifts without further manpower to assist, Judge Barlow went on to assess damages.

He allowed – evaluating the reports of psychiatrists Karen Chau (12% WPI) and Harvey Whiteford (4% WPI), an ISV of 6 for his psychiatric injury. The spinal injury – because it was “so serious and affects him so substantially” – merited an ISV of 10.

That permitted an overall ISV of 12 that – despite the patent severity of his condition – resulted in a mere $19k for general damages.

Past economic loss was reckoned at $229k and for future he was allowed $460k making up a total assessment of $821k.

Kup-Ferroth v A1 Custom Stainless and Kitchens Pty Ltd [2022] QDC 3 Barlow QC DCJ, 21 January 2022

Categories: metal fabrication injury