AWX Pty Ltd v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 108
•3 July 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | AWX Pty Ltd v Simon Blackwood (Workers' | ||||||
| Compensation Regulator) [2014] QIRC 108 | |||||||
| PARTIES: | AWX Pty Ltd | ||||||
| (Appellant) | |||||||
| v | |||||||
| Simon Blackwood (Workers' Compensation Regulator) | |||||||
| (Respondent) | |||||||
| CASE NO: | WC/2013/310 | ||||||
| PROCEEDING: | Appeal against a decision of Simon Blackwood | ||||||
| (Workers' Compensation Regulator) | |||||||
| DELIVERED ON: | 3 July 2014 | ||||||
| HEARING DATES: | 20 & 21 March 2014 | ||||||
| 21 March 2014 (oral submissions) | |||||||
| MEMBER: | Deputy President Swan | ||||||
| ORDERS : |
| ||||||
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST A DECISION - decision of Simon Blackwood (Workers' Compensation Regulator) - Appellant was the employer - Employee was worker - Worker suffered a personal injury - Employment was a significant contributing factor to the injury - Application dismissed. | ||||||
| CASES: | Workers' Compensation and Rehabilitation Act | ||||||
| 2003, s 32 | |||||||
| JBS Australia Pty Ltd AND Q-COMP (C/2012/35) - Decision - < | |||||||
| APPEARANCES: | Mr G. O'Driscoll, Counsel instructed by M+K Lawyers for the Appellant. Dr M. Spry, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), Respondent. | ||||||
| Decision |
[1] On 24 September 2013 AWX Pty Ltd (AWX/the Appellant) filed with the Industrial Registrar a Notice of Appeal pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Q-COMP Review Unit (Q- COMP) released on 5 September 2013.
[2] The Act has subsequently been amended with the result that Q-COMP has been abolished and replaced by Simon Blackwood (Workers' Compensation Regulator) (the Regulator). In this decision the term Regulator is used in place of the previously referred to term Q-COMP.
[3] The Review Unit of the Regulator stated in its decision that Mr Bahuner (the worker) sustained an 'injury' in accordance with s 32 of the Act and has an entitlement to compensation for the aggravation of his pre-existing condition to his lower back only to the extent of the effects of the work-related aggravation.
Legislation
[4] Section 32 of the Act defines "injury" relevantly as follows:
(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
(3) Injury includes the following –
(a) …
(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.
Onus of Proof
[5] The Appeal to the Commission is by way of a hearing de novo.
[6] The Appellant bears the onus of proof. The standard of proof is on the balance of probabilities.
Witnesses
[7] Witnesses for the Appellant were:
Mr N. Thompson (AWX employee - Work Supervisor); Dr R. McCartney (Occupational Physician); Associate Professor Ian McPhee (Spinal Surgeon).
[8] Witnesses for the Regulator were:
Dr M. Hope (Consultant Orthopaedic Surgeon); Mr J. Bahuner (worker).
Brief background
[9] In or around February 2012, the worker commenced employment with AWX in Rockhampton. AWX is a contract recruitment company which supplies labour for Teys Brothers meat works in Rockhampton (Teys).
[10] The worker described his work as that of "cryovac operator in the boning room" [T1- 10]. The work described briefly by the worker and as accepted by Mr Thompson involved lifting meat over a gap of between 8 - 10 centimetres between conveyor belts [T1 - 27].
[11] On 5 June 2012, the worker lodged an application for Workers' Compensation with WorkCover for back pain caused by the work he had been performing at Teys.
[12] On 24 April 2013, WorkCover accepted the worker's claim.
[13] On 23 July 2013, AWX lodged an application with the Regulator seeking a review of WorkCover's decision of 24 April 2013.
[14] On 5 September 2013, the Regulator confirmed WorkCover's decision to accept the worker's claim pursuant to s 32 of the Act.
[15] The worker is an Afghani national with extremely limited use and comprehension of the English language. An interpreter was required for the purpose of the hearing and an interpreter was also utilized by AWX at the worksite.
[16] The Appellant states that a four day induction course was run by AWX for new employees and a further half day was set aside for the purpose of advising workers how to report injuries.
[17] Mr Thompson claimed that the worker worked 9.5 hours each day in casual employment [T1 - 20]. Employees were "all permanent" within the context of having permanent work rights and that they were either on a permanent protection visa or a bridging visa" [T1 - 21].
Appellant's submissions
[18] AWX personnel are required to be on the work site at all times for the purposes, amongst other things, of taking interpreters through the workplace responding to issues which might be raised by workers, and dealing with payroll and attendance matters.
[19] Primarily, the Appellant claims that the factual and medical evidence in this matter does not substantiate the worker's claim that he sustained an 'injury' within the definition contained in s 32 of the Act.
[20] A worker is required to report an injury to Teys first, who proceed to pass the report on to AWX [T1 - 9].
[21] In the circumstances of this case, the worker's evidence was that he had advised his boning room supervisor of pain in his back on 28 March 2012.
The mechanism of the Injury
[22] The Appellant described the work performed by the worker as follows:
The conveyor belt is about 90 centimetres to 1 metre off the ground. The worker is 170 centimetres tall. The meat on the conveyor belt traveled down towards where the worker was positioned. There is a gap between the first conveyor belt and the next. The worker was required to shift the meat from one conveyor belt to the other which would take it to the cryovac machine. The worker would stand in front of the gap between the two conveyor belts. The gap was either a hand's width or 8 to 10 centimetres wide. As the meat came along the conveyor belt, the worker lifted the meat across the gap and up approximately 20 centimetres to the next belt.
There is a dispute between the parties as to actual weight of the meat
handled by the worker.
The Appellant produced a photograph of a cryovac machine (an "Octopus machine"), which was stated to be a photograph of the generic Octopus machine used in other meat works and at this work site. The Regulator objected on the basis that it was not certain that the machine in Rockhampton was the same as the one portrayed in the photograph.
Mr Thompson agreed with the following proposition put by the Respondent that "… these packets of meat you say weighed between - well, up to 9.5 kilos. He was required to lift over the gap so he was standing there, you have to lift so in other words he twists his body, on the cryovac belt, correct: - Yes" [T1 - 27].
The weight of the meat did not exceed 9.5 kilograms unless in unusual
circumstances someone was not performing their duty appropriately.
When dealing with a 9.5 kilogram bag, the worker, by using "two fingers each side at the corner of the open end part of the plastic bag, would lift it and flick it up a bit and then point it down, pat the top of it like and let go" [T1 - 14].
Mr Thompson stated that the worker came to him and resigned on 24 April 2012. He said the worker told him he had seen his Doctor who had advised that it was too cold for him to work in the meat works.
To that end, Mr Thompson arranged for a translator to fill out a resignation certificate identifying where the worker had worked and the reason for the resignation. The translator then signed the worker's name and this was translated back to the worker who also signed the form to indicate that it was correct.
Mr Thompson's evidence was that he had been present when the
document had been executed.Evidence of the worker
[23] The worker said that he had worked for AWX from February 2012 until April 2012. The worker described his work as passing meat from one conveyor belt to another.
[24] The gap between the conveyor belts was roughly the length of a hand - approximately 10 centimetres. The conveyor belt was approximately 90 centimetres off the ground.
[25] Upon moving the meat from one conveyor belt to the other, the worker said there was an incline and the worker had to bend a little then straighten himself to put the item on the next conveyor belt.
[26] When the meat packages were heavy, he stated that "I had to reach and grab them with my whole body which was using my back and bending and, apart from just heavy, and stepping from belt B to C" [T1 - 35]. (Note - belts B and C were identified on a diagram as being the conveyor belts in question).
[27] The worker stated, through his interpreter, that "this physical job would put so much pressure on my body, but I would tough up myself for this work until the day that I got injured, that's when I realized how much it has affected my body" [T1 - 35].
[28] The particular incident which occurred on 28 March 2012 is described by the worker as follows:
"So I start with the day, I started at 6 am - 6 am from the start of the day, for the start of the items where - it started really heavy. So after approximately an hour to an hour and a half working one of the items when I grabbed it to grab - to grab from belt B and take it to belt C and bending was - so I lifted it up, I felt my back that - there is - there is something wrong with my back. The pain was a lot that I couldn't reach up myself to a straight position for a few minutes I was - I kept my job but it got to that point that - for - from the time that I felt the pain till - until approximately 20 minutes I was working in that situation with my physical that happened. And I was trying to keep up with my job. So after what happened I talked to my supervisor and explained the situation that my back is in pain. I can't work" [T1 - 36].
[29] The worker said AWX had its own Doctor. The worker went to the Doctor and said, "I can't work, like, I'm in pain and "they" said "If you're working, work. If you can't, go home". The worker said he asked for medication and was told there would be none given [T1 - 36].
[30] The worker went to his own Doctor at the Mandalay Medical Centre and that Doctor recommended physiotherapy, and massage, together with Panadol. Records from that surgery show that the worker presented with "boning room cold, low back pain? lifting [Exhibit 2].
[31] The worker said that he could not continue with his work because of his back pain. He stated that he had not written his resignation letter, but that he had signed a document, believing it to be related to the return of the boots he had been given. His evidence was that when he was shown the form he had asked what it was for and
was told "It's just simply for the boots that you have to return … When you return
the boots or the work shoes, you have to just sign this, that simple" [T1 - 39].
[32] The worker stated that AWX told him "Teys has discontinued your employment" and they said,
"You - because you're not able to work anymore. Just go home. And the day after AWX gave me this paper and they say, take this to Centrelink because you're not able to work anymore and you should start with - and you start with Centrelink because you're not able to work anymore" [T1 - 40].
[33] In the course of complaining of back pain on 28 March 2012, to the medical practitioner at the Mandalay Medical Clinic, the worker advised that working in such a cold temperature at the workplace exacerbated his back condition. The worker was also diagnosed with hyperthyroidism.
[34] The worker had stated that before his injury, he had a lot of pressure from work and "physically, I would have a lot of pressure from working in my duty" [T1 - 48].
[35] The Appellant asked the worker if he had attended Princess Alexandria Hospital on 19 June 2012 and advised that he had experienced back pain for more than three months. The worker's response was that he had told the medical practitioner that the pain in his back occurred from the day upon which he had injured himself at work [T - 53].
[36] The Report from the Princess Alexandra Hospital Emergency Department dated 19 June 2012, states:
"The presenting problem was BACK PAIN for 3/12. WORSENING. Juma presented to ED with > 3 month history of lumbar back pain. The pain first started while working in Rockhampton lifting boxes" [Exhibit 6].
[37] The worker advised that he had explained to the medical practitioner that his back pain was caused from lifting boxes [T1 - 52].
[38] The worker was questioned by the Appellant with regard to the application he had made for Workers' Compensation. The application was made on 5 June 2012. The worker explained that he was unable to communicate directly with WorkCover and asked a friend to do this on his behalf. His friend was not an interpreter, but his room-mate who spoke limited English. The date of injury was nominated as 26 April 2012. In my view, this was a clear mistake on the part of his room-mate.
[39] The worker said he was not interviewed by WorkCover as such, but that he took all his "documents and the letters" to them. Through his room-mate, WorkCover was advised of how long the worker had been employed by AWX and when his back was injured. He was unsure of what else his room-mate had told WorkCover.
[40] On 28 June 2012, the worker was asked by the Appellant whether he had told WorkCover that he had injured his back lifting over a three month period.
[41] WorkCover Queensland in its "Verbal and Unsuccessful Communications Report"
of 24 July 2013 states inter alia "… has been working in factory for 3 months, about
1 month, maybe 40 days, not sure of date after he started working there he started to
get pain" [Exhibit 8].Medical Evidence
Dr McCartney
[42] Dr McCartney advised that he had been requested by WorkCover to "review some documents and then provide my opinion based on those documents" [T1 - 84].
[43] The documents referred to by Dr McCartney included:
Non-WCMC; WCMC; Employment separation cert; ED report; X Ray report; CT Lumbosacral spine report; CDC Fax from Dr Ion Constantinescu [Exhibit 11].
[44] Dr McCartney was of the view that the worker had "multiple features suggesting of age-related degenerative disc changes and spondlyosis in the lumbar spine" [T1 - 87].
[45] Dr McCartney also stated that hypothyroidism produced "significant musculo-
skeletal manifestations which involved pain …" [T1 - 88]. However in response to
the following question from the Appellant "what effect, if any, does hypothyroidism have upon lower back pain?" Dr McPhee responded, "None at all I would think" [T1 - 80].
[46] Dr McCartney continued "Gradual worsening of back pain over time or developing slowly and getting worse usually represents some sort of pretty interesting underlying pathology and in this case would be well explained by the findings on the CT scan, the multi-level degenerative disc disease" [T1 - 89].
[47] Based upon the Appellant's description of the work performed by the worker contained in paragraph 22 (first dot point), Dr McCartney's evidence was as follows:
Dr McCartney believed that a worker carrying a weight of 10 kilograms in those circumstances so described would have "only minimal degrees of flexion of the waist and minimal rotation". He stated that "the force of the spine then would not involve any
considerable force of torsion while in a flexed position" [T1 - 46].
[48] Dr McCartney had not personally examined or met the worker. Under cross- examination, Dr McCartney agreed that "taking a history and an examination of the person is always the best course." [T1 - 91].
[49] Dr McCartney, in forming his opinion, amongst other things considered a picture of a conveyor belt and a video of a cryovac machine. He had expressed concern with relying on the video footage as "the problem with the video is I don't - there is not people actually performing the work so there is some background - people in the background doing work so, really, I'm looking at a machine rather than people doing the work" [T1 - 92]. He continued by saying that "if you want to give any more detailed opinion on forces and, etcetera, I'd need to see video footage of people actually doing the work while on the machine. So it gave certainly some information but it wasn't everything I would've liked to have had" [T1 - 92].
[50] The Respondent told Dr McCartney that he had been performing his work, which involved lifting and twisting, with weights of up to 10 kilograms and on 28 March 2012, the worker had stated:
th
"The pain's too great - on that particular day the 28 of March the pain becomes too great and he goes off and sees his general practitioner"? To this, Dr McCartney responded "Well, certainly indicates something has changed because he didn't need to stop work and go and see a general practitioner before that and needed to at that point" [T1 - 93].
[51] Dr McCartney, considered the worker's evidence where it was stated that "There was no trauma, no injury, no pain when I went to bed, but I woke up and my back was really sore".
[52] To this Dr McCartney responded:
"So I consider that the natural progression. So I guess one would put that in there as well. The fact that it occurred at work where it's contemporaneous with doing physical work, I think makes it on the balance of probabilities that it's more likely that something in the work place was contributing but it can also be the natural progression in the workplace" [T1 - 94].
Dr McPhee
[53] Dr McPhee's understanding of the mechanism of the worker's injury was as follows: "So my understanding was that he was on some sort of process line, that his job was to lift bags or cartons of meat which had a variable weight and lift them and place them on another conveyor belt and that supposedly the belt was at a low level so that bending was required. He was also told by the worker that the bags and cartons could weigh from 5 kilograms to 30 kilograms" [T1 - 77].
[54] Dr McPhee had reported that it was probable that the worker had suffered a strain of his lower back with an aggravation of a pre-existing lumbar spondylosis arising out of his work on 28 March 2012 [Exhibit 9].
[55] Dr McPhee stated that because of the degeneration in the worker's back, he was "at risk of not lasting very long if he was trying to do heavy work" [T1 - 78].
[56] The Appellant posed a scenario to Dr McPhee (the scenario being that the conveyor belt was about 90 centimetres to one metre off the ground; the worker's height was 177 centimetres; that the conveyor belt abutted another conveyor belt with a gap of "about a hand's width or five to seven centimetres"; that the worker was required to lift the meat from the conveyor to the higher conveyor where the gap was approximately 20 centimetres; assuming a weight of 10 kilograms and assuming that the worker took one step forward, partially twisting his body. Dr McPhee was asked whether that mechanism could cause the injury to the lower lumbar spine experienced by the worker.
[57] To this, Dr McPhee responded:
"I would say, given those factors, that it would be unlikely to do any damage to any healthy man. The height of the conveyors is at a good height, particularly somebody 170; the fact that you are lifting an extra bit is not relevant and the gap is not relevant. The period of actual loading would be short and the amount of turn is minimum. So you know - it's - apart from having no gap and not lifting, it's a relatively benign sort of situation. Nine kilograms as a lift is well within the capabilities of a healthy male" [T1 - 79].
[58] Dr McPhee stated that what is relevant is the positioning of the load. To explain that, Dr McPhee stated: "If you are flexing forward and the load is out at the shoulders, if you are at right angles, then you've got an enormous lever arm. A flexion forward produces a lever arm. But, you know, if you are flexing at right angles you are at trouble but minor flexing would not be an issue" [T1 - 79]. Dr McPhee also stated that when one was considering 'dangerous lifts' then one would be considering weights of around 20 kilograms to 25 kilograms.
[59] Upon cross-examination from the Respondent, Dr McPhee was queried about his opinions based upon a worker having a 'healthy back'. Given that the worker did not have a 'healthy ' back because of his pre-existing back condition, Dr McPhee accepted that the mechanism involved increased the risk of developing back pain [T1 - 82].
[60] The Respondent posed the following question to Dr McPhee:
"… even on those weights, weights of up to 10 kilos, with someone with
the back that Mr Bahuner presents with, given those weights, I'd suggest to you that your original diagnosis would stay as it is and what you say on page 3, "It's conceivable that the lifting during the course of his work has resulted in aggravation of his pre-existing condition"; correct?" Dr McPhee responded "That's exactly right" [T1 - 82].
[61] During his consultation with Dr McPhee the worker advised that "… some three
months after commencing work and a few hours after commencing work on 28 March 2012 he experienced onset of acute low back pain" [Exhibit 9]. After that incident the worker continued to work for 3 weeks before ceasing work.
[62] Dr McPhee's diagnosis was that there is "radiological evidence of degenerative changes throughout the lumbar spine. These changes are of a constitutional nature and pre-date the onset of symptoms in March 2012. It is conceivable that the lifting during the course of his work has resulted in aggravation of this pre-existing condition. The circumstances would constitute an injury within the meaning of the Workers' Compensation Act" [Exhibit 9].
Dr Hope
[63] Dr Hope prepared two reports for this hearing [Exhibits 13 and 14].
[64] The history provided to Dr Hope from the worker on 16 April 2013 [Exhibit 13] is as follows:
"The worker had sustained an injury around 28 March 2012 and reported that approximately one week before having severe lumbar back pain, he was aware of some pain within his back. He reported that he was required to lift packs of meat from weights between 20 to 35 kilograms. The worker had stated that he was required to lift the bags and turn through a distance of approximately half a metre with a slight elevation."
[65] Under the heading of "Diagnosis of all work related conditions, please include if any of these are an aggravation of a pre-existing condition", Dr Hope had stated that:
"L5/S1 disc protrusion and nerve root irritation (sciatica) with pre- existing lumbar degenerative change. This diagnosis is consistent with an aggravation of a pre-existing condition" [Exhibit 13 page 6 of 9].
[66] Dr Hope's second Report dated 10 December 2013, reiterated his previously expressed views from his first Report.
[67] The Respondent asked Dr Hope that if he was to assume that the worker was not required to lift packs of meat greater than 10 kilograms, would his diagnosis change. Dr Hope said that he would not have changed his view as "the difficulty for Mr Bahuner is - is principally the - the position and the bending associated with moving or lifting these items" [T2 - 3].
[68] In cross-examination, Dr Hope was asked if the movement of the items on the conveyor belt did not involve bending and twisting whether his opinion would alter. Dr Hope's response was that "The difficulty with any weight that's carried on the forearms involves considerable forces that are then applied to the back. And if you are lifting even at outstretched - with arms outstretched without bending or lifting, increases the loading across and down the lumbar spine" [T2 - 3].
[69] The Appellant posed the same scenario to Dr Hope as was identified in paragraph 56. Dr Hope responded that "it will still cause considerable stress to the lumbar spine" [T2 - 5].
[70] The Appellant continued cross-examination by asking Dr Hope to consider a situation where the worker was standing close to the conveyor belt and was able to lift with the weight of the product being held closely to his body. Dr Hope was asked whether this scenario would cause him to reconsider his opinion. Dr Hope said, even in that case, his opinion had not changed as the movement was "significant" [T2 - 7].
Consideration of Evidence and Conclusion
[71] The Respondent has submitted, during the course of this hearing that the injury has been one which related to a pre-existing back condition. All doctors agreed with that proposition [T1 - 80].
[72] Dr McCartney agreed with the Respondent that the 'best course' in considering a matter like this is to personally examine the worker [T1-91]. Dr McCartney agreed with the Respondent that the worker had a "pre-existing multi-level degenerative disc changes and lumbar spondylosis". [T1-92]
[73] Dr Hope has stated that the worker suffered from:
"L5/S1 disc protrusion and nerve root irritation (sciatica) with pre- existing lumbar degenerative change. This diagnosis is consistent with an aggravation of a pre-existing condition."
[74] Dr Hope had also stated that the worker had told him that he had experienced back pain "approximately one week before having severe lumbar back pain that he was aware of some pain within his back" [Exhibit 13 - page 2 of 9].
[75] I am satisfied that the worker has suffered an aggravation of a degenerative back condition and that this fits within the category of "an over-time injury." The injury which occurred on 28 March 2012 was not a 'one off' incident.
[76] In JBS Australia Pty Ltd AND Q-COMP, President Hall stated that the case of Pleming v Workers' Compensation Board of Queensland establishes that a worker with a degenerative back will suffer an injury where the back becomes painful or more painful and the employment is a significant cause of the onset or intensification of the pain.
[77] The Appellant states that while the first limb of that commentary may be the case, the question is more whether "the employment is a significant cause of the onset or intensification of the pain".
[78] I have taken into account the worker's language problems and in so doing, find it unremarkable that the worker told his supervisor of his back pain rather than Mr Thompson or another person within the employer category. There is no question that the worker reported his situation to the supervisor, and was advised to see the employer Doctor. The worker also visited his own Doctor on this date. In my view, this does not diminish the worker's credibility.
[79] Both Dr McPhee and Dr Hope examined the worker (Dr McCartney did not). Both Doctors McPhee and Hope were of the view that a worker with a healthy back, handling weights of up to 10 kilograms would be unaffected by performing work of the nature so described by the Appellant. However, in these circumstances, the worker did not have a healthy back - he had a pre-existing back condition.
[80] As to whether the physical movements undertaken by the worker in the course of his duties were as described by him [see Paragraph 47], the Appellant has asserted that the worker was lifting at waist level, but that was refuted by the worker. The evidence is as follows:
Appellant: "When you were standing at the conveyor, it was about waist
height - a bit over?"
Worker: "Be approximately - from my knee about, like one hand up from
my knee" [T1 - 68].
[81] I prefer the evidence of the worker on this point. It is evidence directly from the person performing the work and must be preferred over an assertion made by the Appellant when drawing evidence from medical practitioners. In saying this, I have considered Dr McCartney's evidence in that he had never had a direct consultation with the worker and had relied, amongst other things, upon documents, a photograph of the work station and a video which did not show people working and/or actually performing the type of work which had been performed by the worker.
[82] The next element to be considered is whether employment was a significant contributing factor to the causation of the injury.
[83] The Appellant submitted that Dr Hope's evidence went no further than stating that the worker's injury was an aggravation of a pre-existing condition. It had not addressed the issue of whether employment was a significant contributing factor. In its view, any connection with work was temporal at best.
[84] I have not accepted that assertion. Dr Hope's evidence related to a consideration of the mechanism of the injury. Dr Hope was questioned by the Appellant as to his views concerning the manner by which the worker moved the meat. Dr Hope's view was that, even if bending and twisting were not part of the work carried out by the worker,
"The difficulty with any weight that's carried on the forearms involves considerable forces that are then applied to the back. And if you are lifting even at outstretched - with arms outstretched without bending of lifting, increases the loading across and down the lumbar spine" [T2 - 3].
[85] When further questioned by the Appellant upon its understanding of the manner in which the worker conducted his duties, Dr Hope's response was:
"I'm getting the picture of lifting from one conveyor belt to another conveyor belt. And, therefore, you have to actually lift - you're lifting away from the axis of your body. There's things moving across you which causes - which, in essence, is a lifting and twisting movement which I think is consistent with the likelihood of aggravation of the injury to the lumbar spine" [T2 - 6].
[86] Dr Hope confirmed his opinion when asked by the Appellant whether a loading of a 10 kilogram object is not significant when the worker lifts the meat, keeps it close to his body, and turns and places it down. Dr Hope believed that to be significant.
[87] Dr McCartney, when provided with statistics from the Appellant (i.e. relevant measurements of the distance between the conveyor belts etc.) pertaining to the actual area of work in which the worker performed his duties, said that the description would indicate a good ergonomic work station.
[88] The Respondent submits that even if there was a small movement, there was twisting of the back when the worker performed his duties. The distance of the gap between the conveyor belts was relatively small (i.e. 8 to 10 centimetres) however, that still involved some element of twisting [see paragraphs 22 (dot point 4) 57, 64 and 84].
[89] The two medical specialists who examined the witness held to the view that work was a significant contributing factor to the injury.
[90] Dr McCartney was of the opinion that, given the worker's evidence that there had been no particular trauma or injury on 28 March 2012, and the fact that the onset of extreme pain had occurred at the workplace, "I think makes it on the balance of probabilities that it's more likely that something in the workplace was contributing but it can also be the natural progression in the workplace."
[91] In terms of those findings, I am unable to accept the Appellant's submissions that the only connection of the injury to the work performed was temporal.
[92] In relation to the injury suffered by the worker on 28 March 2012, there was a very real and clear connection with the work the worker was performing on 28 March 2012.
[93] The requirements of s 32 of the Act have been satisfied.
[94] I have accepted the worker's evidence that an event occurred at his workplace on 28 March 2013 which caused him an injury for the purposes of the Act. I have accepted his evidence as to how he actually worked at that workplace. I have also accepted that work was a significant contributing factor to that injury.
[95] The application is dismissed and the decision of the Regulator is confirmed.
[96] The Appellant is to pay the costs of the Regulator in this matter.
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