Chapman v Blackwood - [2014] QIRC 112

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Chapman v Blackwood [2014] QIRC 112

PARTIES:

Chapman, Carl

(Appellant)

Simon Blackwood (Workers' Compensation
Regulator)

(Respondent)

CASE NO:

WC/2013/208

PROCEEDING:

Appeal

against

decision

the

Workers'

Compensation Regulator

DELIVERED ON:

10 July 2014

HEARING DATES:

20-23 January 2014

3 February 2014 (additional material from
Appellant)
10 February 2014 (Respondent's further written
submissions)

MEMBER:

Industrial Commissioner Neate

ORDERS:

1. The Appeal is dismissed.

2.	The decision of the Regulator dated 20 May 2013 is confirmed.
3.	The Appellant pay the Respondent's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF REGULATOR - physical injury - L5/S1 disc prolapse - whether injury arose out of, or in the course of, employment - whether employment was a significant contributing factor - whether injury was caused while driving a forklift at employer's premises - whether injury caused by sporting activity on same day as alleged work-related incidents - Appellant bears the onus of proof

CASES:

Workers' Compensation and Rehabilitation Act

2003, s 32, s 555, s 558

Avis v WorkCover Queensland (2000) 165 QGIG

788
Commonwealth of Australia v Lyon (1979) 24 ALR
300
Coombes v Q-Comp (2007) 186 QGIG 680

Graham Douglas Sergeant v Q-COMP (C/2010/52)

- Decision
Hatzimanolis v ANI Corporation Ltd (1992) 173
CLR 473
Kavanagh v The Commonwealth (1960) 103 CLR
547
Luxton v Q-Comp (2009) 190 QGIG 4
MacArthur v WorkCover Queensland (2001) 167
QGIG 100

Newberry v Suncorp Metway Insurance Limited

[2006] 1 Qd R 519
Nilsson v Q-Comp (2008) 189 QGIG 523
Qantas Airways Limited v QComp (2006) 181 QGIG
301

Qantas Airways Limited v Q-COMP and Blanch

(2009) 191 QGIG 115
Q-COMP v Green (2008) 189 QGIG 747

Rossmuller v Q-COMP (C/2009/36) - decision

State of Queensland (Queensland Health) v QComp

and Beverley Coyne (2003) 172 QGIG 1447

Theiss Pty Ltd v Q-COMP (C/2010/11) - Decision

WorkCover Queensland v Curragh Queensland

Mining Pty Ltd (2003) 172 QGIG 6

APPEARANCES:

Mr R. Myers, Counsel instructed by Shine Lawyers,
for the Appellant.
Mr J. Merrell, Counsel directly instructed by the

Respondent.

Queensland ("WorkCover") rejected the Appellant's claim, on the basis that he did not sustain an "injury" within the meaning of s 32 of the Act (Exhibit 2).
[3] In an Application for claim review dated 12 March 2013, the Appellant asked Q- COMP to review the decision of WorkCover (Exhibit 3). By its review decision, the Review Unit of Q-COMP confirmed the decision of WorkCover to reject the Appellant's notice of claim for damages (Exhibit 4). It is against that decision that the Appellant currently appeals.
The legal requirements and onus of proof
[4] The appeal has to be decided by reference to s 32(1) of the Act, which at the time material to the Appellant's notice of claim for damages, relevantly provided:
"(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."

[5] An injury which arises out of employment occurs where there is a causal connection

between the employment and the injury. Although the words "arising out of" do not
require the direct or proximate relationship which would be necessary if the phrase
used was "caused by," there must be some causal or consequential relationship
2

between the worker's employment and the injury.
[6] An injury "in the course of employment" means an injury is sustained while the
worker is engaged in the work that he or she is employed to do or in something
which is concomitant of, or reasonably incidental to, the person's employment to do
3

that work.

[7] For employment to be "a significant contributing factor" to the injury, the

4

employment must be important or of consequence, and there should be some
5

linkage between the employment and the injury.
[8] As Keane JA (as he then was) stated in Newberry v Suncorp Metway Insurance
6

Limited:
"[27] … The requirement of s. 32 of the WCRA that the employment
significantly contribute to the injury is apt to require that the exigencies of the employment must contribute in some significant way to the occurrence of the injury which the claimant asserts was caused by the breach of duty of the person (not the employer) against whom the claim is made.
…
[41] That having been said, however, I should also observe in passing

that the fact that an injury has been suffered arising out of employment, or in the course of employment, is not sufficient to establish that the employment has been "a significant contributing factor to the injury." To read s 32 of the WCRA in that way would be to read the latter words out of the section, and in my respectful opinion to accord scant respect to the evident intention of the legislature to require a more substantial connection between employment and injury than is required by the phrases "arising out of employment" or "in the course of employment"."

[9] The Appellant carries the onus of proving on the balance of probabilities that he has

an "injury" within the meaning of the Act.
[10] In a joint submission in relation to the legal principles relevant to these proceedings,
the parties stated that, while the onus to be discharged is on the balance of
probabilities, the Commission, in dealing with the matter, must feel an actual
persuasion before the alleged facts can be found to exist. The mere possibility of an
appellant suffering an injury on mere conjecture is not enough. Inference must be
carefully distinguished from conjecture or speculation. There can be no inference
unless there are objective facts from which to infer the other facts which it is sought
8

to establish.
[11] While there is room for intuitive reasoning when determining whether a worker has
suffered an injury within the meaning of the Act, in the process of determining that
question of fact, the Commission cannot substitute speculation for satisfaction on the
9

balance of probabilities.
[12] Further, the parties submitted, in a case where expert medical evidence is led, before
any such expert medical evidence can be of value, the facts upon which it is founded

must be proved by admissible evidence.
The issues and conduct of the appeal
[13] The Respondent did not dispute that the Appellant was a "worker" within the meaning of the Act, and that he suffered a personal injury, namely a prolapse to the L5/S1 disc which required surgery.
[14]    Given those concessions, to succeed in this appeal the Appellant must prove, on the balance of probabilities, that the claim should be accepted because the injury arose out of or in the course of his employment, and his employment was a significant contributing factor to that injury.
[15]   As noted earlier, the Appellant's notice of claim for damages listed three types of injuries: L5/S1 disc prolapse with surgery, soft tissue injury and psychiatric injury. In the review decision, the decision-maker expressly considered whether the Appellant sustained each type of personal injury. The Review Officer stated that, as she was not satisfied that the Appellant sustained an injury to his back on or about 5 February 2010, she did not need to consider if he sustained a psychological injury secondary to his physical injury.
[16]   Although the appeal filed in the Commission was in relation to the whole of the review decision, the case presented at the hearing focused on the physical injury to the Appellant, comprising primarily the prolapse to the Appellant's L5/S1 disc and, to some extent, soft tissue damage to his lower back. By the stage of final submissions, the Appellant's case was that the ground of appeal in relation to the soft tissue injury was subsumed in the prolapsed disc injury component of the appeal.
[17]    The evidence in the Appellant's case did not expressly address that part of the appeal relating to the psychological injury suffered by the Appellant. Counsel for the Appellant explained that, in effect, the success or otherwise of the Appellant's claim in respect of psychological injury depends on the success of his claim in relation to physical injury. If the latter component of the appeal fails, then the psychological component will fail also.
[18]    In essence the psychological injury depends on the back injury. It is the back injury that is incapacitating and disabling. If there is no compensable back injury then there is no compensable psychological injury.
[19]    The Appellant's counsel expressly sought to preserve his client's rights in relation to the psychological component and avoid estoppel being raised subsequently.
[20] The Respondent agreed that if the Appellant were to succeed in relation to his appeal concerning the back injury, the Appellant could proceed within the current application to agitate the psychological injury claim, and the Respondent would decide how to proceed with respect to that component of the appeal. On that basis, the position of both parties was, in effect, to stand over the psychological injury aspect of the appeal. The Commission was asked to decide under s 555 of the Act only so far as the Respondent's decision pertains to the disc injury.
[21]   If the Appellant were to succeed before the Commission in relation to the physical injury, the parties would need to consider their respective positions in relation to the psychological injury.
[22]    In that context, the matter in dispute is whether:

(a)

the Appellant's disc prolapse at the L5/S1 arose out of, or in the course of, his employment; and
(b) the employment was a significant contributing factor to the injury.
[23]    The Appellant contends that the disc injury arose as a result of two incidents on the same day when he was driving a forklift at his employer's workplace (the "first forklift incident" and the "second forklift incident").
[24]   There is also evidence that the Appellant experienced significant pain as a result of physical exertion at a volleyball game ("the volleyball incident") on the evening of the day when the alleged forklift incidents occurred ("the relevant date"). The initial medical consultation and treatment were in response to the symptoms and possible injury arising from the volleyball incident.
[25]   The possibility that there might be a work-related injury was not apparent to the Appellant or his treating doctors until some months after the relevant day. Consequently, the specific issues the Commission has to determine are:

(a) whether the forklift incidents occurred in the manner described by the Appellant;
(b) if so, whether the forklift incidents had a causal connection with the prolapsed disc at the L5/S1; and
(c) whether the Appellant's employment was a significant contributing factor to the prolapsed disc.
Background
[26]   The Appellant gave a detailed and spirited account of the two forklift incidents and the volleyball incident which he described as a "hat-trick."

The layout of the premises: In order to understand the way in which the two forklift incidents are said to have occurred, it is useful to picture the layout of the premises occupied by NGI in early 2010. The business of NGI at that site was to galvanise steel. The site had two components.

(a) The yard was the receiving and dispatch area. Customers’ products were
delivered for galvanizing and were collected after they had been galvanized.

(b) The factory or plant site was where the galvanizing process occurred. It
included an area known as the "jiggers." Customers’ steel was wound up to

overhead jigs or cranes so that the steel could proceed through the plant, and
be lowered into molten zinc as part of the galvanising process.

[28]   The yard was covered in asphalt which was susceptible to damage, including from acid. Potholes formed, particularly after wet weather when the yard was inundated. They could be eight or nine inches deep. Interim repairs were made, or remedial action was taken, by employees who put dirt into potholes and placed metal plates over some of them. A contractor, Ash Patch, was engaged about every three months to fill potholes.
[29]   There were about six forklifts in the area at the relevant time – three in the factory
and three in the yard. In busy periods, if there were not enough forklifts in the yard to unload trucks in the dispatch and receipt area, forklifts for that area were obtained from inside the plant.
[30]   The nature of the Appellant's employment: There was some dispute about the
precise nature of the Appellant’s employment at the relevant time. The Appellant
gave evidence that, after about five and a half years working as a dresser (the final inspector of the galvanised steel product), he was asked by his foreman supervisor, Andrew Stainton, whether he would like to become a leading hand, a position in receiving and dispatch with Darren Doeblien, who was the leading hand at the time. The Appellant said that he agreed to take the job as a stepping stone, in part at least because of the pay. The role of leading hand involved receiving paperwork from forklift drivers in relation to product, inspecting to check that what was written on those documents was correct, making any corrections, then entering the data into a computer. In addition, as part of a team, he would do the work of two forklift drivers during their 20 minute breaks, and at other busy times as required (on average about 80 minutes each day). That work involved taking product off trucks, putting it back on trucks, and moving it around the site. On occasions, he would be required to use an overhead crane.
[31]   The Appellant agreed that he was never formally made a leading hand. He was not paid as a leading hand and none of the documentation at NGI gave him that title. However, he contended that Mr Stainton gave him orange shirts which the Appellant wore to identify himself as a leading hand.
[32]   Mr Stainton was the customer service supervisor in the dispatch and receiving area of NGI in early 2010. He confirmed that Darren Doeblien was the leading hand in that area at that time. Mr Stainton supervised the Appellant, who he described as a labourer, forklift driver and crane operator in the receive and dispatch area. He recalled that there was a leading hand position available and he suggested that the Appellant go for the position. Mr Stainton gave the Appellant his leading hand shirts, which Mr Stainton no longer needed. But the promotion did not eventuate and the Appellant was never promoted. Mr Stainton agreed that in early 2010 the Appellant was doing administrative work in addition to forklift driving, but said that around that time everyone "had to learn different areas in despatch, inputting data, tagging" as part of their training.
[33]   Kevin King, the Health, Safety and Environment Advisor at NGI, described the Appellant as a tagger relief forklift driver.
[34]   It is relevant to note that in his leave application form completed by hand on 27 January 2010 (Exhibit 6), the Appellant listed his position as "Operator." In his notice of claim for damages dated 10 August 2010, prepared by the Appellant's lawyers with information provided by him, the Appellant's usual occupation is listed as "Labourer." The description of the event resulting in the injury commences:
"The claimant instructs that he was employed with National Galvanising Industries Pty Ltd ('NGI') from about 2003, as a labourer and operator. His duties included driving of a forklift, to load and unload trucks, labouring and using an overhead crane."

It continued:
"The claimant had been directed as part of his duties, to move several stacks of
galvanised material."

[35]   It was not until his subsequent income protection claim dated 28 September 2010, that the Appellant described his occupation at the time of disablement as "Operator/Leading Hand" and his usual duties as "Receiving."
[36]    I am satisfied that, in early 2010, the Appellant was not employed as a leading hand, but that his work involved forklift driving in the receiving and dispatch area of the NGI premises, and some administrative tasks.
[37]   The relevant date: There was also uncertainty about the date on which the forklift incidents were said to have occurred. For the moment it is sufficient to note that the Appellant said that the first forklift incident (and the other incidents) occurred on a Wednesday after Australia Day 2010 and before 18 February 2010 when he consulted Dr Raveenthiran, a general practitioner, about his injury.
The first forklift incident
[38]   The Appellant's account: In summary, the Appellant's account of the first forklift incident is that he commenced work at about 6.00 am. He checked paperwork in
relation to jobs that had been dropped off the previous day, and what hadn’t been
booked in, and he started to get jobs ready to be booked in. After about an hour he was approached by a man named Buster who said that they were having a busy day and that the Appellant had to "get the forklift, help the boys today." The Appellant
described Buster as a labourer or forklift driver who was the Appellant’s equal.
However, according to the Appellant, Buster "was sort of trying to takeover, trying
to let everyone know he’s here now." Although Buster "ruffled [the Appellant’s]
feathers" there appears to have been no animosity between them. The Appellant said he liked Buster and described him as a man of Maori descent in his mid-30s who was a friend of the boss, a supporter of the All Blacks and "a good bloke to talk to."
[39]   The Appellant gave evidence that he said there were no forklifts available, and Buster replied that the Appellant would have to go up to the jiggers section and get one. The Appellant responded that the forklifts up there were all "stuffed," but Buster returned to his office. The Appellant walked to the jiggers section where several forklifts were in use. He asked Anthony Wilson Snr, the leading hand in that area, who agreed to him taking a forklift. The Appellant drove off in a forklift which he then realised was unsatisfactory. He experienced discomfort, including to the back of his legs, from the state of the damaged seat.
[40]    Mr Wilson Snr confirmed that he told the Appellant he could use a forklift, but that the only one available was "not very good."
[41]    Evidence was given by and on behalf of the Appellant about the state of the seat on the forklift. Although the forklifts used by employees of NGI usually had vinyl covered padded seats and backs on a metal casing and padded armrests (see the photographs, Exhibit 7), the Appellant described the seat on the forklift involved in the first incident as being so damaged that he could see the steel tray of the seat and there was some surface rust on the casing. It was very uncomfortable to position himself in the seat to drive the forklift.
[42]    The Appellant agreed that workers at NGI who used the forklifts had wire cutters or pliers suspended from their belts, and the sharp ends of those instruments would cut out the vinyl on the seats.
[43]   Mr Wilson Sr said there were normally two forklifts in the jigging section. On the relevant date, following the Appellant's request to use a forklift, Mr Wilson Sr said that there was one that the Appellant could use. Mr Wilson described the seat on that forklift as having "heaps of rips in it." According to Mr Wilson, it was "like a toilet seat with a piece missing in the middle and lips on the side." Bare metal was showing in the middle section, where the sponge had been picked out. Workers had used cardboard to cover the hole. The damage to the seat had been created by jiggers who carried cutters in their pockets. Mr Wilson also said that there was no suspension on the seat of that forklift.

[44] The Appellant said that he drove the forklift for about five minutes down to his section, and asked another worker, Trevor Wilson, if he wanted to swap forklifts. Mr Wilson declined. The Appellant proceeded to load semi-trailers for the next three hours. He then drove the forklift to pick up another bundle. As he was about to lift it, the forklift rolled forward and bucked the bundle, bumping into the product. As he raised the load and increased acceleration he noticed the back of the forklift was coming up and the second bundle was moving. He started lowering the load, thinking that he was on the ground, but the forklift dropped about three inches. At that point he felt a "massive pain" through his back, which pain went up to his neck and down to the back of his ankles. He raised the forklift again quickly a little and it caught the first bundle. He then put the forklift into reverse. As he reversed, the back end of the forklift, which had "gone up a little bit," dropped. The Appellant experienced another sensation and jumped off the forklift, grabbing his hips. After he had moved his hips and his back, the intensity of the pain subsided and the pain in his neck was gone.
[45] Having observed that everyone in the vicinity was busy, the Appellant started walking to the office of Mr King, who was (among other things) the Workplace Health and Safety officer for NGI at that site. As the Appellant was walking, others were waving their paperwork at him. His back was feeling "pretty good," or at least "not too bad." Indeed the Appellant said he started feeling guilty because he was not in that much pain and the work was building up. He continued:
"As I’m about 2 or 3 minutes [sic: metres?] away from him, I said, "Hey,
Kevin, I've just stuffed me back out in that bloody forklift." As I've said forklift, I virtually got to where he was at his computer. He was typing away, didn't stop typing, didn't move his head, didn't do a thing just said, "Oh, mate, if you're going to report an incident, you've got to get a doctor." I sorted [sic]
of looked at him. He didn't move, didn't - just kept typing away. I said, "Don’t
worry about it, mate." Me, I was feeling guilty because I didn't feel much pain and I knew how busy we were. I didn't have time to go to a bloody doctor considering I wasn't feeling that much pain. I then walked back out, hopped on my forklift, picked the bundle up, kept an eye on the pot holes and that, kept loading". (Transcript 1-24)

[46] Criticism of the Appellant's account: The Respondent criticised the Appellant’s
account of the first forklift incident on the grounds that:

(a)

there were inconsistencies about the date of the incident (a matter common to all three incidents and discussed in detail later in these reasons for decision);

(b)

there was no credible corroboration that the incident occurred, as the man named Buster did not work for NGI at the relevant date and Mr Wilson Snr was not at work on 27 January 2010;

(c)

there was no credible corroboration of the state of the seat on the forklift as described by the Appellant, i.e. that the vinyl and the cushioning were missing and the Appellant had to sit on steel casing; and

(d)

the Appellant did not report the first forklift incident (or the second) to Mr King contemporaneously.

Corroboration that the incident occurred: No-one who saw the first forklift incident gave evidence to the Commission. That might be expected given that the Appellant's claim for damages (Exhibit 1) stated that there were no witnesses.

[48]   The only person other than the Appellant to give evidence about the first forklift incident was Mr Wilson Sr, who worked for NGI and its predecessors between 1999 and 2012. He was a work colleague of the Appellant in early 2010, and worked in the jigging area hanging the steel so that it could be transported to the pickling area for cleaning and galvanising. He recalled an incident involving the Appellant "about maybe January 2010" ("twenty something"), when the Appellant was unloading a truck. Mr Wilson Snr was hanging steel about 25 to 40 metres away from the Appellant. He heard an "almighty bang on the ground, thump" like the sound made by something dropped from a vehicle that has been unloaded. Looking toward the area from which the sound came, Mr Wilson Snr "saw this forklift going up and coming back down" and "saw Carl hop off stretching his back" and putting both his hands behind his back, above the buttocks around the belt line.
[49]   Mr Wilson Snr said that he did not make any report about the first forklift incident because there were enough supervisors standing around watching the Appellant.
[50]    Although Mr Wilson's evidence was that the first forklift incident occurred in "about January 2010" on "twenty something," it was accepted later in the hearing that he was not at work on 27 January 2010, the date referred to in much of the evidence.
[51]    There was evidence (and it was later conceded) that a man named Buster Tuproo did not start working in any capacity for NGI until 8 July 2010. The following exchange occurred when that was put to the Appellant.
"I don’t know because in that section we had – what was his name – Ants – Ants Wilson. He was a Kiwi fella. And then I think he left or – or something
happened to him, and then Buster turned up on the scene. So we swopped [sic]
a Kiwi bloke for a Kiwi guy.
Yes. But you were quite specific in your evidence-in-chief earlier today about
this gentleman’s nickname or Christian name being Buster?---Yeah. I can just recall the Kiwi guy sitting there telling me what – what – what to do that
morning.
Well, it was the Kiwi guy – Mr Chapman, you were quite specific - - -?---No.
I’m pretty sure it was Buster, mate.
Okay?---But honestly, look, let - let me think about it for a minute. No, mate.
Look, it could be my memory, but I swearing it was Buster standing there.
Okay?---Not – Not Ants. It was a Kiwi guy there. I’m pretty sure it was
Buster, mate because - - -
I put – my suggestion to you is that Buster never started working in any
capacity for NGI until July of 2011. What do you say to that?---You
obviously know. I don’t understand. How – how did I get Buster telling me
to get the forklift. I’m – how did I get that in my head. No. Well, then, it
must have been Ants telling me to get the forklift, mate. It must have been
Ants, the other Kiwi guy.
Ants?---Ants.
And is that a Christian name or a surname?---It’s a nickname. I think his
name is Anthony or Tony, well, Anthony Wilson.
So Tony Wilson Junior?---Yeah. Yeah. See I was at [indistinct] because one
started and one finished virtually the same time, so in my section – and he goes one Kiwi, here’s another Kiwi. And then we would be laughing about it
and saying why can’t you employ Australians.
Well, but - - -?---But that - that’s my loss of memory. I’m – I’m – I’m picturing Ants telling me and thinking Buster’s telling me.
They might be Kiwi’s, but they’re different people, aren’t they?---They’re
both tall blokes.
They look different?---They’re both tall blokes to me.
But they look different, don’t they?---Oh yeah, I - but not twins." (Transcript
1:82)

[52]   Mr Myers submitted that although the forklift incident could not have occurred on 27 January 2010, and although Buster could not have been present, it could have been Anthony Wilson Jr who gave the direction to use the forklift. According to Mr Myers, Mr Wilson Jr was an employee at that time but was not at work on 27 January.
[53]   The state of the seat on the forklift: In addition to the Appellant, four witnesses gave evidence about the state of the seat on the forklift at the relevant date.
[54]   As noted earlier, Mr Wilson Snr stated that there was a forklift in the jiggers area that had "heaps of rips" in the seat and that some metal was showing where sponge padding had been picked away, but that area was covered by cardboard to make the seat more comfortable.
[55]    Andrew Carlton was a leading hand in the jiggers, pickling and dipping area at NGI in 2010. He operated forklifts and said that in 2010 some of the seats were damaged by the wire cutters that jiggers carried in their pockets or on their belts. None of the forklifts had seats where the vinyl and the foam were missing and the steel casing was visible. Indeed, he could not recall a seat in that condition at any time in his 10 years with NGI.
[56]   Mr Stainton was the customer service supervisor in the dispatch and receiving area of NGI in early 2010. He had oversight of the activities in the yard, including data entry, and would use forklifts in the dispatch and receiving area. If there were not enough forklifts there during busy periods he would borrow one from the jiggers area inside the plant. Around early 2010 there was one forklift from receipt and dispatch with a split seat on one side. However, he could not recall any seats with their vinyl and padding missing and the steel casing exposed, but agreed that, although any badly damaged forklift would have been reported, the report would not necessarily have been made to him.
[57]    Mr King said that at no time in 2010 did any of the forklifts used or leased by NGI have seats with the vinyl and foam padding missing. No employee complained to him about having to use a forklift with the steel casing of the seat being visible. However, Mr King recalled the Appellant speaking to him twice, in late 2009 or early 2010, about a forklift not having a suitable cushion.
[58]   According to Mr King, the Appellant first referred to damage on the side of a seat caused by wire cutters. Forklifts were stored outside. Consequently, in wet weather the foam would be soaked and any person sitting on the damaged seat would get wet. Mr King said that he inspected and found two forklifts (one from the jiggers area and the other from another end of the factory) in a similar condition. Because the forklifts were leased from MLA, a Mitsubishi company, he contacted MLA for a quote to replace the seats. The company wanted to use genuine seats and Mr King was told they were not available for six weeks.
[59]   Mr King said that, a week or two after their first conversation, the Appellant gave him a friend's business card for upholstery. After discussion with management and MLA, non-genuine seats were ordered and fitted after March 2010 to two forklifts, one from the receipt and dispatch area and one from the jiggers area.
[60]    Mr King's recollection differs in some respects from the Appellant's account of their conversations about a forklift not having a suitable cushion.
[61]   According to the Appellant, the seat cushion had been missing for at least two months. He said that he had spoken to Mr King on at least two occasions (in November and December 2009), about the forklift not having a suitable cushion and was apparently told first that no seats were available in Australia, then that they cost $950 each. On a third occasion, the Appellant gave Mr King the business card of an upholsterer. The non-genuine seats were replaced in March 2010, after the relevant date.
[62]    The difference in the evidence of various witnesses goes to the nature and extent of the damage, rather than whether seats were damaged. Mr Myers seemed to concede as much when he submitted that the size of the hole in the seat was not the issue; the real question was whether the seat was performing its function.
[63]    I am satisfied and find on the basis of the evidence that in the early months of 2010 there were two forklifts with damaged seats, the vinyl covering having been cut by the wire cutters carried by jiggers on their belts or in their pockets, and that the damage included the removal of some of the cushion padding so that, when the forklifts were in the yard during rain, those seats became wet and hence uncomfortable for forklift drivers. I cannot be certain that either or both of the seats was damaged to the extent described by the Appellant and Mr Wilson Snr.
[64]   Report of the first forklift incident: There were significant differences between the Appellant's account of what happened after the first forklift incident (noted earlier), and the recollections of Mr King.
[65]   Mr King, in his capacity as WorkPlace Health and Safety Officer, described the system for reporting NGI work incidents and injuries, and his usual practice when injured workers came to him. Workers were given training in their responsibility to report incidents. Notices were displayed at various locations at NGI's premises instructing employees to report to their supervisor any incident or injury. In practice, either a worker would report an incident to their immediate supervisor who would report it to Mr King, or the worker would go directly to Mr King and they would fill out an incident report.
[66]    Mr King said that he would deal with an average of about four incidents each month. If an injured person came to him, he would get them to sit down and explain what had happened and where their injury was, assess their injury immediately as a first aid officer and decide if they needed to go to a doctor. If so, he would usually take them in his vehicle. If someone suggested that they were too busy to see a doctor he would insist that they do so. Given that the first 15 or so minutes after an injury can be significant in terms of shock, he would assess them before deciding whether to
drive them to a doctor or call an ambulance. Irrespective of the employee’s self-

assessment (e.g. that an injury was not serious), he would insist on getting an
incident report. It is his "first obligation, to try and get those records in place."
[67]   In those cases where an employee was taken to a doctor, after the patient had been treated (e.g. if a doctor had stitched a wound), Mr King would receive a copy of the WorkCover medical certificate and would return to the workplace to write an incident report. The incident report would be attached to the medical certificate and the employer would send the documents to WorkCover. If required, an application for WorkCover would be completed by the employee and provided to the doctor.
[68]    According to Mr King, the Appellant did not report to him any incident in which he hurt his back by using a forklift. In particular, the Appellant did not report the first forklift incident.
[69]    Mr King recounted a conversation with the Appellant in about February 2011 (a year or so after the relevant date) which gave rise to a review of his records to see if there was any report of the first forklift incident. According to Mr King, the Appellant said that he believed that he had reported an injury or incident to him. Mr King said that he told the Appellant that he did not recall "any of that whatsoever." Apparently the Appellant was quite agitated about that, and Mr King said that, although he did not
remember the Appellant’s report, he would look through the files and check his diary
notations. The Appellant agreed that he should do so. Mr King said that he had conducted a review and there was no incident report or notation in his 2010 diary (such as he might have made as a reminder to himself if there had been a minor injury and he did not have time to prepare an incident report immediately). On or about the same day as that review, Mr King told the Appellant that there was "nothing there."
[70]    Mr King did not make a note at the time he checked his records that there might be a potential claim for injury.
[71]   The Appellant stated that, although Mr Stainton was the supervisor of the dispatch and receiving section at the relevant date, the Appellant did not see him that day and did not seek him out to report either of the forklift incidents. Mr Stainton gave evidence that the Appellant did not make any report to him of any incident for an injury involving his use of the forklift.
[72]   The Respondent submits that, in the absence of any contemporaneous report of the first forklift incident, the Commission cannot be satisfied that the incident occurred as the Appellant contends.
The second forklift incident
[73]   According to the Appellant the second forklift incident occurred about two and a half hours after the first. He had a bundle of steel about 12 metres long on a forklift to go into a truck. He had raised it about four metres so that, when he was taking it to Bay 6 to put it away, the bundle was not touching the products. The Appellant was watching the bundle and did not notice that he was driving over potholes. The front wheels of a forklift are wider than the back wheels. The front wheels passed over a pothole but the two back wheels dropped into it. The Appellant felt pain in his back to his neck and down to his feet. He lowered the bundle onto the stack of steel. The Appellant then hopped off the forklift and, having moved his back, he thought that his back did not feel too bad.
[74]   Nonetheless, the Appellant thought he had to report the incident and walked to Mr King. There were other people in the yard and the Appellant felt some pressure to return to his job. He approached Mr King in his office. Again Mr King was working at his computer. The Appellant told him that he had "busted" his back getting the forklift out of the potholes. Mr King continued typing but reiterated that if the Appellant wanted to report injuries he would have to see a doctor. The Appellant told Mr King that he was too busy to see a doctor. After the conversation with Mr King, the Appellant spoke to Mr Doeblien and told him that he had hurt his back
twice in one day. The Appellant then drove a colleague’s forklift to put a bundle
onto a truck. After stopping at the toilets and complaining to men in the dressing section about the forklift, he went to see Buster about the paperwork for the day and
took printouts to the jigger’s section to give the workers their copy.
[75]   The Appellant did not use the forklift again that day. He finished work at 4.00 pm and went straight home.
[76]   No other evidence was given to corroborate the Appellant's account of the second forklift incident.
[77]   According to Mr King, employees were to report incidents to their immediate supervisor (who would report incidents to him) or employees could contact him directly and they would fill out an incident report.
[78]    Mr King stated that the Appellant did not report the second forklift incident to him. Mr Stainton said that the Appellant did not make any report to him of any incident for an injury from his use of the forklift.
[79]    The Respondent notes that in August 2009 NGI conducted Occupational Health and Safety training for its employees, including the Appellant. On 13 August 2009, the Appellant acknowledged that he understood that one of his responsibilities as an employee of NGI was to report immediately to his supervisor:
"… unsafe acts, practices, or conditions whether resulting in an accident or
not. If a serious bodily injury, a work caused illness or dangerous event
occurs, notice must be given within 24 hours of the event." (Exhibit 5)

[80] Nothing much turns on that if one accepts the Appellant's account that he reported (or at least attempted to report) the first forklift incident and the second forklift incident to Mr King. Although the Appellant's supervisor was Mr Stainton, the Appellant did not attempt to report the forklift incidents to him. Nonetheless, on the Appellant's account of events on the relevant date, he attempted to comply with his responsibilities, by reporting the incidents to an appropriate manager.
[81] However, the Respondent submits that, in the absence of any contemporaneous report of the second forklift incident, the Commission cannot be satisfied that the incident occurred as the Appellant contends.

[82]   I do no more than observe at this stage that, even on his own account of what happened after the second forklift incident (and the first forklift incident), the Appellant did not request or insist on a record being made or any other action being taken in respect of the incident. To the extent that the Appellant's evidence provides a possible explanation of his apparent lack of insistence, it appears that due to the level of activity in the workplace and the relatively low level of ongoing discomfort in his back the Appellant did not follow up the matter with a persistence and insistence that otherwise might have been expected.
The volleyball incident
[83]   The incident: The volleyball incident is relevant to this appeal because, on one
approach, the injury to the Appellant’s back was caused as a result of physical

exertion while playing volleyball and was not caused by work-related activity, in
particular by the forklift incidents.
[84]   The Appellant had been playing rebound beach volleyball on sand for about three years before 2010.
[85]   There are various accounts of the volleyball incident. In his oral evidence to the Commission, the Appellant said that he went onto the court without having stretched or warmed up for the game. Early in the game, the centre on his team put the ball up and the Appellant took "two steps, jumped in the air off me [sic] right leg to spike it
back at him. As I’ve jumped there … about an inch off the ground, I felt my …

hamstring tear. It was excruciating pain." The pain extended from about the location
of his trouser belt, down his right buttock towards the back of his right knee.
[86]   The Appellant said he limped around and told others about his injury. However, he kept playing but could not jump or do much as a result of what he thought was a damaged hamstring. The game continued for about another 35 minutes.
[87]   The Appellant gave some other accounts of how this injury occurred. According to notes taken by Dr Roy Saunders, a sports physician who saw the Appellant on 21 July 2010, the Appellant described how when playing volleyball he felt "a little twinge of his hamstring as he stretched it out and felt it was alright and then tried to really stretch it out dynamically by kicking above his head and it went bang" (Exhibit 14). When he saw Dr Malcolm Wallace on 16 November 2012, the Appellant apparently did not recount the volleyball incident but described playing volleyball on the relevant date. It seems that the Appellant told Dr Wallace that he was limited by pain in his back and right thigh and thought he had torn a hamstring. He had difficulty jumping (Exhibit 9).
[88]   After the incident: After the game, the Appellant went home in "absolute agony." He had a shower and experienced some difficulty when washing some parts of his body such as his toes. The Appellant then watched some television and eventually fell asleep. By that stage he was in "a bit of pain."
[89]   The Appellant gave evidence that the following day he was "still in pain … in
agony." He "limped in to work" and told others, including Mr King and Mr Stainton about the hamstring injury. He recalled telling Mr King that his back was "good as gold" but his hamstring was "stuffed," and saying that he had three injuries in one day. According to the Appellant:
"That hamstring pain was so significant … I never mentioned to another
person about my back injury the previous day. From that point on it was all me [sic] hamstring. The pain for that was so significant that I even probably nearly forgot about me [sic] back after a few days and just managed the next three or four months trying to deal with this hamstring pain. It was excruciating." (Transcript 1: 29)

[90]   Although the Appellant experienced persistent pain and stiff muscles for some months, and sought medical assistance, he resumed playing volleyball after a couple of weeks as he was hoping to be selected for the Queensland volleyball team for his age group and did not want to miss that opportunity.
[91]   Before the incident: For the purpose of distinguishing between the physical effects of the volleyball incident (as perceived by the Appellant), and the possible physical effect of the two forklift incidents, it is relevant to note the Appellant's physical condition before the volleyball game. According to the Appellant's oral evidence, he was sore when he arrived home from work after 4.00 pm. His shoulders felt sore
from driving the forklift and his back was generally sore. It had been a "massive …
draining day," and he had not felt that type of soreness since he had worked in a factory where he had to labour all day, including bending over. So he lay down and went straight to sleep. He was woken by his brother, Joel, who told him they were late for their volleyball game. At that stage the Appellant felt "a bit refreshed, a bit tired." He could not recall precisely what his back felt like, but it did not feel too bad. He thought he was late for the game, and managed to change his trousers and shirt, apparently without difficulty. He drove to the venue for the game by about 6.00 pm, arriving minutes before the game started.
[92]   Joel Chapman had played volleyball with the Appellant since 2009. He recalled waking his brother on the afternoon of the relevant date before they went to the volleyball game. Joel Chapman said that he saw the Appellant climb out of bed and, as he went to put his feet on the ground, the Appellant grabbed the back of his back. The Appellant had "the look of pain all over his face." Joel Chapman was living with his brother at that time and said that he had not seen the Appellant behave that way previously.
[93]   In his account to Dr Wallace on 16 November 2012 the Appellant apparently said that he noticed an increase in pain when he attempted to take off his shoes and prepare to play volleyball (Exhibit 9).
[94]   Most of the evidence in relation to the volleyball incident was provided by the Appellant. The summary of all the documentary and oral evidence discloses some differences in the accounts of events and the Appellant's circumstances before and after the volleyball incident, as well as the incident itself.
When did the incidents occur?
[95]   It is central to the Appellant's case that all three incidents occurred on the relevant date. At no stage in the proceedings was that date established. Various dates between January and May 2010 were nominated in documents, oral testimony and submissions. Much of the oral evidence was directed to the possibility that Wednesday 27 January 2010 was the relevant date. However, for reasons set out below, in final submissions Mr Myers contended that 27 January 2010 could not be the relevant date.
[96]    Although Mr Myers submitted, and I accept, that the precise date of the incidents is not determinative of the issues in this case, the fact that the Appellant's various estimates were that the date fell somewhere in the period between January and May 2010 is relevant to an overall assessment of the strength of the Appellant's case. Consequently, it is appropriate to consider what led to such uncertainty, and whether the evidence points clearly to any of the possible dates as being the relevant date.

[97]	reference to documents in evidence and oral testimony.

The various dates and the sources of them are listed in chronological order by recorded the Appellant describing pain in his posterior thigh while playing sports "2- 3 weeks ago" (Exhibit 13).

21 July 2010: Appellant told Dr Roy Saunders of the pain that the Appellant
experienced "probably 3 months ago playing volleyball" (Exhibit 14).
10 August 2010: Notice of claim for damages stated that two incidents occurred on or about 5 February 2010 when the Appellant was using a forklift (Exhibit 1, paras 35, 38) or on 2 February 2010 (Exhibit 1, para 58).
28 September 2010: The Appellant's income protection claim application stated that the injury that caused the Appellant's ruptured disc (attributed to volleyball) occurred on 26 May 2010 (Exhibit 8).

15 August 2011: Appellant told Mr Iain Kelman that on "a particular day in May
2010" he was injured while operating a forklift at work (Exhibit 11).
24 October 2012: Appellant told Dr Paul Licina about the pain he felt playing volleyball on the evening of 3 February 2010, and of the forklift incidents on 3 February 2010 (Exhibit 12).

16 November 2012: Appellant told Dr Malcolm Wallace that he "initially hurt his
back at work in the beginning of February 2010 (Exhibit 9).
20 January 2014: Appellant gave oral evidence to the Commission that the first forklift incident (and the other incidents) occurred on a Wednesday after Australia Day 2010 and before 18 February 2010 when he consulted Dr Raveenthiran about his injury. He agreed that 27 January 2010 was the relevant date because he had time off work in the week after Australia Day, there was "only one Wednesday" which "fits in and makes sense" to be the relevant date. Mr Wilson Sr gave oral evidence that the first forklift incident occurred in "about January 2010" on "twenty something."
[98] The Appellant's brother, Joel Chapman, could not remember the date of the volleyball incident.
[99] If all the evidence given in these proceedings is accepted, that evidence serves to eliminate the following dates:

(a)

Wednesday 27 January 2010, because Mr Wilson Sr, the only witness in relation to the forklift incident who gave evidence, was not at work that day;

(b)

Friday 29 January 2010 to Thursday 4 February 2010, because the Appellant was on annual leave (Exhibit 6);

(c)

any date after 18 February 2010 when the Appellant consulted Dr Raveenthiran and told her of his sports injury; and

(d)

any date that is not a Wednesday, because volleyball games occurred on Wednesdays.
[100] By that process, and on the assumption that the witnesses called by the Appellant are believed, the only possible dates in the first two months of the year are 6, 13 or 20 January and 10 or 17 February 2010. Mr Myers suggested that even as early as 13 January would be "probably stretching it." 17 February 2010 is too close to the Appellant's consultation with Dr Raveenthiran to come within "2-3 weeks ago."
[101] The Appellant's applications for annual leave on 29 January 2010 and 1-4 February 2010 were signed and dated 27 January 2010. They list the reason for the leave as "operation," something which was unrelated to the injury that is the subject of the present proceedings. In his evidence identifying the day after Australia Day as the relevant date, the Appellant said that he remembered that he had time off work "the week later" after the hamstring injury. He also said that he had time off to have his operation and give his hamstring "a rest." On one reading of that evidence, and having regard to the other eliminating factors, it is possible that 20 January 2010 was the relevant date. There is no other evidence to support such an inference being drawn.
[102] The Respondent submitted that the Commission could not be satisfied that the forklift events, as alleged by the Appellant occurred on Wednesday 27 January 2010. As noted earlier, Mr Myers also contended that the relevant date could not be 27 January 2010.
[103] If the Appellant's account to Dr Raveenthiran is correct (and that might be thought to be so, given that it was given closer to the alleged incidents) then it is consistent with the injury occurring in early February.
[104] Wednesday 3 February would be reasonably consistent with what was in the notice of claim for damages made in August 2010 (as well as what the Appellant told Dr Licina in November 2012). It is also consistent with the Appellant's evidence that, when he returned to work on 5 February 2010, he told Rhys Hanson (the operations manager at NGI) that he hurt himself at volleyball. Mr Stainton gave evidence that the Appellant was on light duties in February 2010 due to a volleyball injury that the Appellant said he had suffered. The Appellant's evidence was that he told Mr Stainton that he injured himself playing volleyball. The Appellant disputed that he was on lighter duties at that time, contending that he was doing his normal job of putting tags on jobs, but said he was "limping around." If 3 February 2010 was the relevant date, it would rule out the injury being caused by the forklift incidents.
[105] If those incidents could not have occurred while the Appellant was on annual leave, the relevant date would have been on or about 10 February 2010. Yet there is evidence to the effect that the Appellant was limping at work before then as a result of an injury at volleyball, and that date does not fit within the "2-3 weeks ago" recorded on 18 February 2010.
[106] As the above analysis indicates, there are evidentiary impediments to accepting 27 January, 3 February or 10 February 2010 as the relevant date.
[107] The Respondent submitted more generally that, given the significance of the event which occurred on a day when the Appellant also felt excruciating pain from playing volleyball, the date should have been easily identified. However, the Appellant had not given a consistent date that the alleged events occurred.

Other issues

[108] Other inconsistencies in the Appellant's accounts are relevant. His notice of claim for damages dated 10 August 2010 (Exhibit 1) described in some detail two incidents which occurred in early February 2010 when the Appellant was using a forklift, yet the income protection claim application some six weeks later, 28 September 2010, stated in the Appellant's handwriting that the injury that caused the Appellant's ruptured disc was attributed to volleyball (at 6.30 pm on 26 May 2010) (Exhibit 8). The declaration signed by the Appellant in relation to that claim is not only that the particulars in the claim "are true and correct in every detail" but that, if he had made or in the future makes "any false or fraudulent statements," the policy shall be void and rights to recover under it shall be forfeited. When this document was shown to the Appellant in cross-examination, he responded "Yeah. It doesn't look good."
[109] By August 2010 it was apparent that the Appellant required surgery. He saw Dr Redmond, a neurosurgeon, on 19 August 2010 and discussed appropriate surgery. It
is clear from the Appellant’s oral evidence and the clinical notes of Dr Saunders on
25 August 2010 and 22 September 2010 (Exhibit 14) that the Appellant could not afford the cost of $20,000 for surgery as originally proposed. He was able to arrange less expensive surgery, which was performed by Dr Peter McCombe, an orthopaedic surgeon, on 23 November 2010 at a cost to the Appellant of $9,000.
[110] By late August 2010, the Appellant would have appreciated the potential cost of treating the injury.
[111] For completeness, I note the Appellant's evidence that he told Dr Redmond and Dr McCombe that he hurt himself playing volleyball. The Appellant also suggested that he told Dr McCombe that Dr Saunders had linked the injury to use of a forklift, and that Dr McCombe had agreed with Dr Saunders. Neither Dr Redmond or Dr McCombe was called to give evidence.
[112] According to the Appellant, he did not approach the volleyball association about his injuries, and he did not know whether the association held insurance cover for such injuries.
[113] However, the day after Dr Saunders diagnosed his condition as a disc injury rather than a hamstring injury, the Appellant met with Mr King. Accounts of aspects of that conversation are in dispute. According to the Appellant, he told Mr King that his back condition was not a result of a hamstring injury at volleyball but was work related (i.e. caused by the two forklift incidents). The Appellant recalled Mr King saying that he vaguely remembered the Appellant hurting his back twice in one day, and saying that the Appellant had 90 days to declare that and make a work related claim. That period had passed. The Appellant indicated to Mr King that he was keen to put through a claim, but Mr King suggested that the Appellant would get the sack
if he put in a workers’ compensation claim.
[114] According to the Appellant, Mr King spoke to him approximately a week and a half or two weeks after that conversation and informed the Appellant of an income protection scheme for sporting injuries that require time off work. As far as NGI was concerned, the Appellant had a volleyball injury.
[115] According to Mr King, he spoke to the Appellant in about August 2010 when the Appellant sought advice about making a WorkCover claim for an injury. Mr King asked what injury he was referring to and the Appellant explained that a medical specialist (to whom he had been referred for treatment in relation to a hamstring injury) told him that his injury was to his lower back and not his hamstring. According to Mr King, the Appellant said that he and the doctor had discussed the work the Appellant did and the specialist felt that the injury could not have happened during the volleyball game, and that it probably happened while the Appellant was driving a forklift over a pothole. Mr King said he found it hard to believe that a doctor would come up with that (and, as noted later in these reasons, Dr Saunders did not recall ever discussing with the Appellant that the disc prolapse was work related), but advised the Appellant that he had previously informed NGI that the injury happened at volleyball. The Appellant was concerned that it would raise
issues with his employment and Mr King told him "I don’t think it would do you any
favours." However, Mr King said he did not make any comment about the security
of the Appellant’s employment. Mr King also told the Appellant that a claim had to
be made before 90 days and that period had passed. Although, as the Workplace Health and Safety officer, Mr King could assist him to fill out the form, it was the Appellant who had to make the claim. The Appellant had not asked Mr King to fill out the application, but had sought his advice about whether it was a good idea to do so.
[116] Mr King said that he did not initiate, or assist the Appellant with, an income protection claim.
[117] On 28 September 2010, with the assistance of Dr Raveenthiran, the Appellant completed and gave to Mr King an income protection claim for time off work
(Exhibit 8). That form stated that the Appellant’s injury was a ruptured disc and that
it was caused by volleyball.
[118] According to Mr King:

(a) in or before February 2011, the Appellant had informed him that he was in financial difficulty because an anaesthetist was chasing him for money; and
(b) in about February 2011, the Appellant said to Mr King something like "Look, I believe that I reported an injury to you, an incident that happened and you yelled at me." Mr King said that he told the Appellant he did not remember anything like that, but he was happy to look through the files and check his diary. The Appellant agreed. Having done that, Mr King told the Appellant nothing was there.
[119] The Respondent submits that the evidence reveals that the Appellant, having reported initially that his right leg pain (mistakenly thought to be from a torn hamstring) was caused by volleyball, belatedly attempted to suggest that his injury was work related to assist with the cost of his surgery. This is, the Respondent submits, another reason why the Commission should not conclude that the
Appellant’s injury is work related.
[120] There are inconsistencies in the accounts of the incidents that caused the injury to the Appellant's spine, and of the surrounding circumstances. When considered together, those inconsistencies throw doubt on the Appellant's case. However, before expressing any conclusions in relation to his claim, it is appropriate to consider carefully the medical evidence.

Medical evidence
[121] The medical evidence is significant in relation to:

(a) the nature of the physical injury, i.e. the prolapsed S1/L5 disc and the soft tissue injury to the Appellant's lower back; and
(b) the likely cause of the injury
[122] Opinion evidence was given by the following doctors:

(a) Dr Iniyal Raveenthiran, a general practitioner
(b) Dr Roy Saunders, a sports physician
(c) Mr Iain Kelman, a consultant orthopaedic surgeon
(d) Dr Paul Licina, an orthopaedic surgeon who deals exclusively with spinal conditions
(e) Dr Malcolm Wallace, an orthopaedic surgeon.
[123] As noted earlier, before expert medical evidence can be of value, the facts on which it is founded must be proved by admissible evidence.
The nature of the physical injury
[124] Although it took some months from the relevant date to establish the nature of the physical injury to the Appellant's back (see [131] to [137], [143] and [163] (below)), that injury was not in issue in these proceedings.
[125] Having reviewed the MRI of the Appellant's spine in August 2010, Dr Saunders noted that there was compression and the appearance of inflammatory fluid in the space with compression of the thical sac (Exhibit 14). Dr Saunders said that he concluded that the Appellant had a disc injury at the L5/S1 level and a possible sequestered fragment that was irritating the nerves.
[126] On 23 November 2010, Dr McCombe performed a discectomy on the Appellant's lumber spine. The Appellant had a good response to the surgery and was clinically pain-free apart from an occasional cough. He was able to return to work on light duties (Exhibit 14) some six weeks after the initial operation. He also attended a gymnasium in order to attempt to return to sporting activities (Exhibit 11).
[127] The Appellant experienced further pain to his back, apparently as a result of operating a forklift (Exhibit 11) and had further surgery on his back in early May 2011. He returned to work on 6 June 2011 on restricted duties.
[128] When Mr Kelman examined the Appellant and a recent MRI scan in August 2011, he:

(a) diagnosed a lumber spine L5/S1 disc prolapse May 2010 with recurrence in May 2011; and
(b) described the overall appearance of the L5/S1 as consistent with post- operative change, and could see no definite recurrent disc protrusion or evidence of distortion of the L5 or S1 nerve roots on the right side (Exhibit 11).
The cause of the physical injury
[129] As the earlier part of these reasons explains, although the nature of the physical injury was not in issue in these proceedings, the cause of the injury is the subject of contention.
[130] The medical evidence, summarised and quoted below, is reviewed in the order in which the doctors saw the Appellant. That sequence allows an appreciation of the information that each doctor had when making their diagnosis and may explain why there are some differences of opinion between the doctors as to the cause of the physical injury.
[131] Dr Raveenthiran: Dr Raveenthiran, a general practitioner, had been the Appellant's doctor since January 2003. Dr Raveenthiran's notes of a surgery consultation on 18 February 2010 recorded that the Appellant felt pain in his posterior thigh when playing sport some two to three weeks earlier. The Appellant told Dr Raveenthiran that it still hurt when walking after sitting for a long period. He was still able to play sports and was walking with no abnormality detected. There was no bruising of a type that might result from some physical trauma or injury. Dr Raveenthiran thought there was muscular ligament strain. She prescribed rest, and a course of Voltaren (an anti-inflammatory medication), and suggested that the Appellant come back after a week if he did not feel better (Exhibit 13). The Appellant confirmed that he did not describe any forklift incidents to Dr Raveenthiran. He was, he said, "there for my hamstring" which he thought he had pulled while playing volleyball. At that stage, Dr Raveenthiran thought that the Appellant's condition involved muscle pain and should be better within a week. It did not look like something major. Dr Raveenthiran also stated that the Appellant had similar hamstring injuries in the past.
[132] The Appellant saw Dr Raveenthiran on 3 March 2010, about a matter apparently unrelated to the injury, and then consulted Dr Raveenthiran on 5 July 2010 in relation to right hamstring pain. He described experiencing right posterior thigh pain on and off for four months. Voltaren helped, but he needed to take it all the time. The Appellant told Dr Raveenthiran that physiotherapy did not help. On neither occasion did the Appellant mention any forklift incident to Dr Raveenthiran. Dr Raveenthiran still thought the Appellant might have hamstring strain pain. She prescribed Mobic (another anti-inflammatory) in place of Voltaren, and advised the Appellant to see Dr Saunders.
[133] Not only is there no mention of any work related cause of the injury in Dr Raveenthiran's notes of 18 February 2010, there is no mention of it in her notes of subsequent consultations in relation to the injury, even after the Appellant's consultations with Dr Saunders and Dr Redmond in August 2010. Such an absence is, perhaps, explicable given the mistaken understanding of the nature of the Appellant's injury on 18 February 2010 and the fact that the injury was diagnosed correctly and treated by other doctors.
[134] Dr Saunders: Dr Saunders has seen the Appellant as a patient for more than a decade. On 21 July 2010, the Appellant consulted Dr Saunders and described how when playing volleyball he felt "a little twinge of his hamstring as he stretched it out and felt it was alright and then tried to really stretch it out dynamically by kicking above his head and it went bang and he's had persisting pain ever since" (Exhibit 14).
[135] Despite the Appellant's description of the volleyball-related injury, Dr Saunders came to doubt whether the cause of the pain experienced by the Appellant was a hamstring pain injury. At his first consultation in relation to the injury, on 21 July 2010, Dr Saunders noted that the Appellant had experienced "intermittent episodes of low back pain which have not been consistent but certainly have been present. There does not appear to be a correlation between the low back pain and the
hamstring pain area." Dr Saunders noted "virtually no tenderness relating to … the

hamstring," but there was a low back tenderness and pain relating to, among other
things, the L5/S1. He decided to order an MRI of the Appellant's pelvis.
[136] On 28 July 2010, Dr Saunders reviewed the MRI and observed that the "examination findings suggest and history suggests a hamstring tear but if there is no obstruction at the hamstring level then one must assume it is higher up." He noted that, although there was "no pain with palpation of the hamstring origin," and no "pain with resisted hamstring contraction," the Appellant had "some minor tenderness over the lumber spine at the L5/S1" and suggested "a closer look at the lumber spine because that's the most likely culprit." An MRI of the lumber spine was then done.
[137] Dr Saunders reviewed the MRI on 2 August 2010 and noted L5/S1 disc protrusion and other things. He arranged for "contrast to sort out." His progress notes on 4 August 2010 describe a consultation with the Appellant regarding his MRI with the enhancement which show compression and inflammatory fluid in the space with the compression. Dr Saunders discussed possible treatment by steroid injection with the Appellant. On 25 August 2010, after the Appellant had seen Dr Redmond, Dr Saunders discussed with the Appellant the need for surgery and associated matters (including the Appellant's inability to afford extra out of pocket expenses for surgery) and options.
[138] Dr Saunders could not recall any other discussion with the Appellant about the cause or potential causes of his injury, the disc prolapse. The Appellant asserted, however, that Dr Saunders had repeatedly asked him what else he had done around the time of the injury, apparently for the purpose of ascertaining what event other than volleyball might have caused the prolapsed disc (although that purpose was not explained to the Appellant). The Appellant said that he then told Dr Saunders that he had injured himself twice at work. Nothing in Dr Saunders' notes of his consultations (whether for the dates just noted, or on 30 August, 8 and 22 September, 3 November and 24 December 2010) indicates that any such conversation took place. There is no reference in those notes to any work-related cause of injury. However, the notes record some of the Appellant's concerns about the implications of his injury for his capacity to do his job and for his ongoing employment.
[139] Dr Saunders expressed the opinion that, if there had been some degeneration in the Appellant's L5/S1 disc, and the Appellant had jumped to spike a ball while playing volleyball and landed heavily on his right leg, that could have been the cause of a disc prolapse.
[140] When asked in cross-examination whether the forklift incident was more consistent with having suffered this kind of injury of the spine than leaping at volleyball, Dr Saunders said that:

(a) because he did not assess the Appellant around the relevant date, it was problematic for him to express his opinion;
(b) he had looked at the injury in terms of the history as described and the clinical signs that go together; and
(c) he could not comment or speculate as to whether one cause was more likely to give rise to disc protrusion than the other.
[141] However, Dr Saunders recalled that the history that the Appellant described to him was of a "very specific incident" and of an acute injury, not of a long-term chronic injury that was made worse in some way by the volleyball incident.
[142] Mr Kelman: More than a year later, Mr Kelman examined the Appellant on referral by WorkCover. His report dated 15 August 2011 (Exhibit 11) records the Appellant's account of the forklift incident involving the potholes, and the Appellant's reference to a number of other events that day when injuries occurred "as a result of a similar mechanism," and the volleyball incident when the Appellant "experienced sudden severe pain in the hamstring on the right side."
[143] Mr Kelman noted that the Appellant's injury was initially considered to be a hamstring tear and treated as such for about three months without improvement. In Mr Kelman's opinion:
"It is likely that this was an incorrect diagnosis as the pain in the posterior aspect of the right leg was more than likely to have come about as a result of a disc prolapse at L5/1 causing impingement at the S1 nerve root level. This corresponds to his clinical findings." (Exhibit 11)

[144] Mr Kelman examined the Appellant after the discectomy was carried out in November 2010 and a revulsion L5/S1 discectomy on 9 May 2011. He also investigated an MRI scan done on 12 July 2011, and apparently relied on the history of events as related by the Appellant. Mr Kelman expressed the following opinion in his report:
"It is most likely that Mr Chapman suffered personal injury by accident on [sic] May 2010 as a result of operating a forklift which was aggravated by sport later on that day. The pathophysiology of this problem is that it is likely that Mr Chapman suffered disruption of the annulus fibrosis as a result of impaction injury when operating a forklift. When he was jumping up while playing volleyball and coming down heavily on his right leg it is probable that the disc prolapsed through the tear which was already present and this resulted in sciatic pain." (Exhibit 11)

[145] Later in the report he stated:

"I consider that the ongoing symptoms are attributable to the work related accident in May 2010. I do not consider that there were significant pre-existing conditions." (Exhibit 11)

[146] Mr Kelman was asked about the likelihood that activities associated with playing a game of volleyball would give rise to a disc prolapse in the spine. His oral evidence was, in summary, that:

(a) a disc can prolapse with significant injury without degeneration being present;

(b)

it would be very unlikely that the activity of playing volley ball would have given rise to a disc prolapse in a healthy spine;

(c)

the Appellant, at age 37, appeared to be a fit and active person with no symptoms of degenerative back disease (which is more likely to be present in an older person); and
(d) the only degenerative change to the Appellant’s L5/S1 area that was indicated
by the MRI occurred after surgery.

[147] In cross-examination, Mr Kelman confirmed that the annulus fibrosis is the fibro cartilage ring that forms the outer part of an intervertebral disc. In his opinion, it is likely that the second forklift incident caused a tear to the annulus fibrosis and that, as a result of the volleyball incident, the disc prolapsed through the annulus fibrosis. Mr Kelman agreed that, had there been no second forklift incident but there was a tear, the tear could have been caused by some other event in which the Appellant exerted himself physically, such as by playing volleyball. However, in his opinion,
there would have had to have been some previous injury to the Appellant’s annulus

fibrosis (no matter what the cause) for him to have suffered a disc prolapse with the
activity that he was carrying out playing volleyball.
[148] Dr Licina: Dr Licina saw the Appellant on 24 October 2012, more than a year after Mr Kelman's report. He took a history and performed a clinical examination of the Appellant. Dr Licina recorded the details of injury as follows:
"Mr Chapman was playing volleyball on the evening of 03 February 2010. He jumped up to spike a ball over the net and he felt a tearing pain in his right hamstring. He had to cease play. He continued working and participating in sport with ongoing pain." (Exhibit 12).

[149] Dr Licina's report recounts the Appellant's visits to Dr Raveenthiran on 18 February and 5 July 2010, and to Dr Saunders on 21 July 2010, as well as referrals to Dr Redmond and Dr McCombe (who recommended and performed an uncomplicated right L5/S1 discectomy on 23 November 2010). Dr Licina refers also to the second injury on 21 March 2011 (which led to an uncomplicated revision right L5/S1 discectomy on 9 May 2011) and subsequent events, as well as the opinions of Mr Kelman and Dr Ballendan (an occupational physician, who did not give evidence in these proceedings).
[150] As with the other doctors, it is relevant to note the history on which Dr Licina relied when expressing his opinion about the cause of the injury to the Appellant's back. Dr Licina wrote:
" History
Mr Chapman has had two minor episodes of back pain in the past. He jarred his back at work driving a reportedly defective forklift and developed back pain. On that evening while playing volleyball he developed immediate severe right leg pain which was initially diagnosed as a hamstring tear but subsequently diagnosed as sciatica due to a disc prolapse. Discectomy surgery to address the prolapse was initially successful but within a short period, a recurrence of the prolapse occurred. Revision discectomy gave temporary relief of leg pain but back pain became significant requiring a fusion. Pain has been improved with fusion surgery. Mr Chapman is left with intermittent back pain." (Exhibit 12)

He confirmed in oral evidence that the history is "according to" the Appellant.

[151] In relation to causation, Dr Licina's written opinion included the following passage:

"Causation is contentious. There are a range of possibilities. These involve the relative contributions from pre-existing degeneration, forklift driving and volleyball. In determining causation, it must be remembered that a disc prolapse differs from an acute orthopaedic injury such as a fracture. The majority of fractures occur as a result of significant external force and would have not otherwise occurred in the absence of this force. There are few exceptions and these would include some sort of pathological underlying process that weakened the relevant bone. With regard to lumbar prolapses, the opposite is true. In almost all cases, there is a significant underlying pathological process and this is in the form of degeneration of the disc. Degeneration is the primary cause of a prolapse. Degeneration is universal but occurs at different rates in different individuals. Therefore different individuals have differing susceptibilities to prolapse. Local pre-existing anatomical factors also play a part." (Exhibit 12)

[152] Dr Licina drew on his extensive experience in seeing and operating on hundreds of patients with a disc prolapse to conclude that:
"in the majority of cases, a specific event is not identified. In many cases the event that is associated with the onset of sciatica is a typical daily activity that has been performed many times in the past. In other words, in more than half of cases one cannot clearly implicate an external force as causing the prolapse. In any case, a prolapse almost never occurs in a normal disc. Degeneration is required as a precursor. Therefore identifying a cause for a disc prolapse is not always possible." (Exhibit 12)

[153] Dr Licina examined the radiological evidence of the Appellant's L5/S1 disc and concluded that there was degeneration of the disc that was present before February 2010. He explained that the injury was in February and the scans were in July. There were well-established changes that would take years (rather than months) to develop.
[154] In the present case, Dr Licina expressed the opinion that:

(a) degeneration is the primary underlying cause; and
(b) there are two possible external factors that may have contributed to the prolapse occurring at the particular time: forklift driving and volleyball.
[155] In his view, it is highly likely that volleyball was the primary cause because:

(a) the act of squatting and then jumping in the air, twisting and landing back on the ground would exert sufficient force on the spine to be considered as unaccustomed and sufficient to precipitate a prolapse in a degenerate disc;
(b) leg pain started at volleyball;
(c) all the notes, including doctors' consultations and insurance forms, have listed volleyball as the primary cause; and
(d) work was only implicated as an alternate possibility well down the track. (Exhibit 12)
[156] Having expressed that view, Dr Licina stated that work may have contributed to (but was unlikely to have caused) the disc prolapse. He continued:
"… the fact that pain had not occurred until that day and then a prolapse
occurred that evening makes it more likely that work was a contributor. It is probable (although not highly probable and not definite) that work caused some form of annular tear or internal disc disruption. What I cannot definitely state is that work was significant in the genesis of the prolapse. In my opinion the prolapse would equally likely have occurred even if there had not been some disc alteration from driving the forklift." (Exhibit 12)

[157] In summary, he wrote:

"… pre-existing degeneration was the most important factor that made the
spine vulnerable to prolapse. External force precipitated the prolapse to occur at that time. This is almost certainly the volleyball injury. Work may have contributed by causing some sort of disc disruption but because the prolapse occurred so soon after, it is impossible to know whether this disruption would have healed uneventfully or gone on to cause some back pain. Assuming the latter, work could be implicated as causing some sort of permanent injury to the disc resulting in ongoing back pain. However, it is highly unlikely to have caused the prolapse and subsequent requirement for two discectomies and a fusion." (Exhibit 12)

[158] When cross-examined, Dr Licina agreed that a forklift could have been causatively involved depending on what happened to the disc while the Appellant was driving. If the Appellant had experienced a simple strain, then the disc prolapse would have been due to volleyball. If the disc had been partly disrupted by a minor injury, then work was a contributor. Dr Licina had no way of knowing which was the case. Nor was he able to conclude that there was or was not damage to the annulus at work. It is possible that an injury at work gave rise to the annulus tear. However, such damage can occur over time without a specific external force. It was likely that the Appellant would have exerted himself to the point where he had similar forces on his spine, and then caused an annular tear in any case. What is more definite is that the prolapse occurred when the pain started.
[159] According to Dr Licina, annular tears tend not to be a discrete, one-off event. Rather, they tend to be like fraying or splitting. If there was some annular damage at work, then it is likely that the damage was extended and became symptomatic. An extension is likely to have happened in any case, but participation in beach volleyball would have led to a disc disruption in the presence of an earlier annular tear.
[160] Dr Wallace: On 16 November 2012, at least two and a half years after the relevant date, Dr Wallace saw the Appellant at the request of the Appellant's solicitors for a medico-legal report. The Appellant told Dr Wallace that he sustained injuries to his lower back at work (initially in the beginning of February 2010) and was diagnosed as suffering from a disc prolapse. He also described playing volleyball on the relevant date "but was limited by pain in his back and the posterior aspect of his right
thigh and thought he had torn a hamstring. He … had difficulty jumping." (Exhibit
9)
[161] There is no reference in Dr Wallace's reports to the volleyball incident, and the report is ambiguous as to the cause of the pain during the game of volleyball. In his oral evidence, Dr Wallace confirmed that he had no record of the volleyball incident (i.e. jumping and spiking the ball). Rather, the history provided by the Appellant was that he had difficulty with his preparation for the match and difficulty in engaging in play.
[162] Dr Wallace noted that the Appellant had been "extensively investigated with medical imaging" between 21 July 2010 and 23 February 2012. Dr Wallace reviewed the "extensive documentation" provided to him by the Appellant's lawyers which included progress notes of Dr Saunders and Dr Kelman (but not of Dr Licina). According to Dr Wallace, the documents "are consistent with the history given to me by" the Appellant. Dr Wallace noted the various opinions, recommendations, diagnoses and reports, and he incorporated them into his report and opinion. That opinion included the following:
"[The Appellant] has sustained a lumbar disc prolapse consistent with the mechanism of injury described when using a forklift. Understandably [the Appellant] thought he had torn his hamstrings and was treated as such for a period of time before investigation revealed a lumbosacral disc prolapse". (Exhibit 9).

[163] In his oral evidence, Dr Wallace stated that the symptoms for sciatica and a torn hamstring are similar. This type of condition usually starts with the back and progresses (over days or weeks) to develop associated pain in a lower limb. Leg pain can be the presenting symptom. The pain that the Appellant experienced was sciatica, referred pain from a disc prolapse from the irritation of the nerve root. However, because the Appellant and his doctor believed that his right leg pain was the result of a torn hamstring, the original diagnosis was in error and there was a delay before the correct diagnosis was made and the Appellant was treated appropriately.
[164] Consistently with his written opinion, Dr Wallace stated that the Appellant’s injury
(or at least the original tear to the annulus) occurred with the forklift rather than volleyball. Consequently, the Appellant would have developed his severe back pain and sciatica whether or not he had engaged in volleyball. In coming to that view, Dr Wallace relied solely on the history supplied by the Appellant.
[165] Dr Wallace said, however, that engaging in a game of volleyball could cause a disc prolapse, or at least the final stage of the development of those symptoms could be due to that activity where there was existing degeneration and a tear to the annulus.
The Appellant’s volleyball activities could have precipitated the final stages of the
disc prolapse.
[166] Dr Wallace agreed that there must be some degenerative change which would allow an annular tear and subsequent sequestration of the nucleus pulposus. He described the continuum which commences with an annular tear that delaminates and allows the disc material to extrude. His evidence was that a disc prolapse starts with an annular tear and, with ongoing activity (such as volleyball), the nucleus pulposus the inner part of the disc extrudes and compresses the nerve.
[167] In March 2013, having noted the opinion of Dr Licina that the injury to the
Appellant’s back was primarily attributable to a volleyball injury and subsequent
surgeries, Dr Wallace wrote that that was not his opinion. Rather, the Appellant’s

original injury "was at work in which he sustained a disc prolapse. This occurred at
work and was not due to the volleyball incident" (Exhibit 10).
[168] Submissions: The parties' submissions in relation to the medical evidence can be summarised briefly.
[169] Mr Myers for the Appellant relied on Mr Kelman's evidence that an event of the nature of the second forklift incident was likely to disrupt the annulus fibrosis in a healthy man during relatively heavy work, rendering the spine susceptible to a disc prolapse whilst participating in volleyball. He conceded, however, that Mr Kelman's opinion can only have value if the Commission accepts the Appellant's version of events, in particular that one or more of the forklift incidents occurred in the way described by the Appellant.
[170] Mr Myers submitted that the annulus was damaged in consequence of a work incident and that rendered the spine susceptible to the final decompensation. The fact that there might have been some degeneration is not relevant to the result in this case. It was the intervening annular damage, caused by driving a forklift at work that enabled the final injury to occur. Had there been no work incident and hence no work-related annulus damage, it is probable that there would not have been any injury on the volleyball court.
[171] Mr Merrell for the Respondent, however, submitted that the medical evidence does not support the Appellant's claim. As noted earlier, before such medical evidence can be of value, the facts on which it is founded must be proved by admissible evidence.
[172] The Respondent points to evidence to the effect that the Appellant:

(a) did not tell Dr Raveenthiran about the forklift incidents;
(b) did not tell Dr Saunders about the forklift incidents;
(c) did not tell Dr Wallace about specific aspects of the volleyball incident, and apparently was downplaying the volleyball incident in favour of the alleged forklift incidents.
[173] The Respondent submits that the Commission cannot accept the Appellant's version of events regarding the forklift incidents. Consequently:

(a) Mr Kelman's opinion that the tear in the annulus fibrosis was caused by the forklift incidents cannot be accepted; and
(b) to that extent, any contribution to the Appellant's disc prolapse opined by Dr Licina, limited as it is (namely a tear in the annulus fibrosis or disc internal disruption caused by the forklift incidents), cannot be accepted.
[174] In the alternative the Respondent submits that, if the Commission accepts the Appellant's version of events regarding the forklift incidents, then, having regard to Dr Licina's opinion that he could not definitely state that work was significant in the genesis of the prolapse, work could not be a significant contributing factor to the Appellant's disc prolapse. The Appellant's work could not have contributed in some significant way to the occurrence of the injury because, on Dr Licina's evidence, due to the degeneration in the disc, the prolapse would likely have occurred even if there had not been some work incident.
[175] Consideration: An overarching feature of the medical evidence is the extent to which, quite understandably, each doctor relied on the Appellant's account of events when developing their opinion about the cause of his injury. Thus, although (Dr Raveenthiran aside) there was consistency in the diagnosis of the Appellant's injury, the opinions about how the injury occurred were influenced by, or depended upon, the information provided to each doctor by the Appellant. It is also appropriate to note, with respect to that issue, that the specialists who saw the Appellant a year or two after the injury occurred, read and had regard to the reports of doctors who had seen the Appellant previously, and to whom he had recounted what he said took place.
[176] Against that background, the specialist medical evidence as to the likely cause of a L5/S1 prolapse could be particularly significant if it clearly points to, or rules out, one of the mechanisms which was advanced by the Appellant in relation to his injury, i.e., whether his injury could or could not have been caused by riding on a forklift in the circumstances described by the Appellant or by a volleyball-related action as described by the Appellant.
[177] Read as a whole, the specialist medical evidence does not clearly attribute an injury of that type to one of the mechanisms described by the Appellant, nor does it conclusively rule out one of those mechanisms.
[178] In that context, the evidence of Dr Saunders is significant because:

(a) he was the first specialist to see the Appellant after the injury and was best placed to diagnose the injury;
(b) the history that the Appellant described to him was of a very specific incident and of an acute injury;
(c) Dr Saunders did not rely on the Appellant's self-diagnosis but made enquiries and commissioned tests until he could make an informed diagnosis of the injury, noting the L5/S1 disc protrusion;
(d) that diagnosis was confirmed by other specialists, and surgery was performed;
(e) his opinion was that the volleyball incident could have been the cause of a disc prolapse if there had been some degeneration in the Appellant's L5/S1 disc; and
(f) he could not recall any other discussion with the Appellant about the cause or potential causes of the disc prolapse, and was not willing to speculate as to whether a forklift incident was more likely than the volleyball incident to give rise to the injury.
[179] Having regard to all of the specialist medical evidence and the age and physical fitness of the Appellant and the symptoms experienced by the Appellant in the volleyball incident, I conclude that the disc prolapse suffered by the Appellant:

(a) could have been caused or precipitated by the volleyball incident; but

(b)

would have had its genesis in a degenerative condition that probably developed over some years, during which period the driving of forklifts (particularly over uneven surfaces) might have aggravated the condition and made the Appellant's spine more vulnerable to prolapse.
[180] However, on that analysis of the medical evidence alone, I cannot conclude:

(a) what was the cause of the Appellant's injury and hence, more particularly, that the injury arose out of, or in the course of, the Appellant's employment at NGI; or
(b) that the Appellant's employment was a significant contributing factor to the prolapsed disc.
[181] Consequently, it is necessary to consider the evidence as a whole to determine whether the appeal should succeed.

Conclusion

[182] Subsection 558(1) of the Act provides:
"(1) in deciding an appeal, the appeal body may –

(a) confirm the decision; or
(b) vary the decision; or
(c) set aside the decision and substitute another decision; or
(d) set aside the decision and return the matter to the Respondent with the directions the appeal body considers appropriate."

[183] As noted early in these reasons, the appeal was made against the review decision which considered whether the Appellant sustained three types of personal injury: a disc prolapse to L5/S1, soft tissue injury and an injury diagnosed as an adjustment disorder with a depressed mood. The Review Officer stated that, as she was not satisfied that the Appellant sustained an injury to his back, she did not need to consider if he sustained a psychological injury secondary to his physical injury (Exhibit 4).
[184] The case presented to the Commission focused on the physical injury to the Appellant. There was no evidence in relation to the psychological injury. The implications of that approach for the result in this case are described in paragraphs [16] to [21] of these reasons.
[185] After the conclusion of the hearing, the Appellant sought to rely on the judgment of
the Queensland Court of Appeal in Lee v Quality Bakers Australia Ltd (trading as
11

Buttercup Bakeries), particularly at paragraph [69] and following. That case concerned a worker who had suffered a back injury, the symptoms of which had been accelerated by the nature of the work he was doing, and had suffered a depressive state stemming from that and other physical disabilities arising from that work.

[186] Ambrose J referred at [69] with approval to the following observations of Mayo J in

12

Fishlock v Plummer:
"(i) Where further injury (to the plaintiff) results from a subsequent mishap without carelessness by himself which would not have been sustained had he not been in the physical condition caused by the defendant's neglect the added damage is directly linked with the original catastrophe.
(ii) If injury would have resulted from the subsequent mishap had the plaintiff been in normal condition of bodily health but the damage sustained is greater because of his injured state the extra damage but only the extra damage is sufficiently connected."

[187] The Appellant's reference to that passage in Lee[13] was made without any
[13] Lee v Quality Bakers Australia Ltd [2000] QCA 285.
accompanying submission. If it was meant to bolster the Appellant's case that his
psychological injury could be linked to the physical injury to his back, then, as
outlined earlier in these reasons for decision, that was not a matter for the

Commission to resolve at this stage of the proceedings. The passage from Lee, might become relevant if the Commission decides that the Appellant's back injury arose out of or in the course of his employment.
[188] If the judgment was provided so that the passage in [69] of it could be relied on to support an argument that the Appellant's injury resulted from a "subsequent mishap" in the form of the volleyball incident, then that passage can only be relevant if I accept the Appellant's account of the two forklift incidents and the volleyball incident.
[189] The Respondent, while not doubting the legal principle referred to by Ambrose J, submitted that the principle does not assist the Appellant. In the Respondent's submission, the present case is whether the Appellant suffered an "injury" within the meaning of the Act, not whether there was any negligence on the part of the NGI that caused its injury. The Respondent submitted that the Commission could not be satisfied that the Appellant suffered the disc prolapse to his L5/S1 arising out of or in the course of his employment.
[190] As noted near the outset of these reasons, the Appellant bears the onus of proving on the balance of probabilities that:

(a) his disc prolapse at the L5/S1 arose out of, or in the course of, his employment; and
(b) the employment was a significant contributing factor to the injury
It is not necessary to repeat the legal requirements set out at paragraphs [4] to [12] of these reasons for decision.
[191] The specific issues that the Commission has to determine are:

(a) whether the forklift incidents occurred in the manner described by the Appellant;
(b) if so, whether the forklift incidents had a causal connection with the prolapsed disc at the L5/S1; and
(c) whether the Appellant's employment was a significant contributing factor to the prolapsed disc.
[192] It will be apparent from these reasons that the case raises many questions of fact in respect of which conflicting (or at least not readily reconcilable) evidence was given, or no corroborating evidence was given. For that reason, I have refrained from making findings on each of the individual matters as they were discussed, preferring to consider the evidence as a whole.
[193] In summary, the evidence does not lead to obvious or inevitable conclusions as to the date or key features of the first forklift incident or the second forklift incident. As well as being contrary to evidence adduced on behalf of the Respondent, some of the evidence given or adduced by the Appellant was internally inconsistent and contradictory.
[194] It is not necessary to repeat what has been summarised in detail earlier. I note simply that, considered together:

(a) the uncertainty and variability about what was the relevant date;
(b) the evidence that a person who was said to be a key participant in the events giving rise to the first forklift incident and following the second forklift incident (Buster Tuproo) did not work for NGI on any of the dates mentioned;
(c) the only witness who sought to corroborate the first forklift incident was not at work on a date to which much of the evidence and inference were directed;
(d) the absence of any contemporaneous note of either forklift incident in NGI records, or any recollection by the relevant NGI employee (Mr King) of being told about them at the time;
(e) the absence of any record in Dr Saunders' notes, or in his memory, of work- related causes being discussed with the Appellant; and
(f) inconsistencies in the Appellant's account of the cause of injuries in successive documents or reports to doctors, even after his consultations with Dr Saunders,
fail to provide support for, or throw substantial doubt on, the case put by the Appellant. While no individual component is fatal to the Appellant's case, together they erode his claim that the injury arose out of, or in the course of, the Appellant's employment.
[195] Consequently, I am not satisfied on the basis of that evidence that, on the balance of probabilities:

(a) the two forklift incidents occurred in the manner described by the Appellant;
(b) the forklift incidents had a causal connection with the prolapsed disc at the L5/S1; or
(c) the Appellant's employment was a significant contributing factor to the prolapsed disc.
[196] Had there been consistent medical evidence to the effect that the injury could only (or primarily) have been caused by the forklift incidents, the Appellant's claim might have been strengthened. But, as noted at paragraphs [134] to [167] and [176] to [180], that was not the case.
[197] Given the findings in relation to the factual issues, it is appropriate that the decision of the Commission be made in accordance with s 558(1)(a) of the Act, namely to confirm the decision of the Regulator.
[198] In those circumstances, I make the following orders:

1. The Appeal is dismissed.
2. The decision of the Regulator dated 20 May 2013 is confirmed.

3.

The Appellant pay the Respondent's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.

[199] Order accordingly.

Decision

[1] This is an appeal by Carl Lester Chapman ("the Appellant") to the Queensland Industrial Relations Commission ("the Commission") against the decision of the Review Unit of Q-COMP (now known as Simon Blackwood, the Workers' Compensation Regulator) ("the Respondent") of 20 May 2013, that he does not have an entitlement to damages ("the review decision"). The appeal is made under the Workers' Compensation and Rehabilitation Act 2003 (Qld) ("the Act").
Brief history of the claim
[2] The Appellant was employed by National Galvanising Industries Pty Ltd ("NGI") from 1 July 2008. On 10 August 2012, the Appellant lodged a Notice of Claim for Damages claiming compensation for a L5/S1 disc prolapse with surgery, soft tissue injury and psychiatric injury arising from an event on or about 5 February 2010 at his place of work (Exhibit 1). By its decision dated 10 December 2012, WorkCover

1 Kavanagh v The Commonwealth (1960) 103 CLR 547, 556 (Dixon J), 558 (Fullagar J).

2 Avis v WorkCover Queensland (2000) 165 QGIG 788, 788 (Hall P); WorkCover Queensland v Curragh

Queensland Mining Pty Ltd (2003) 172 QGIG 6, 7 (Hall P).

3 Commonwealth of Australia v Lyon (1979) 24 ALR 300, 303-304 (Deane J); Hatzimanolis v ANI

Corporation Ltd (1992) 173 CLR 473, 478 (Mason CJ, Deane, Dawson and McHugh JJ); Theiss Pty Ltd v
Q-COMP (C/2010/11) - Decision at [3] (Hall P).

4 Q-COMP v Green (2008) 189 QGIG 747, 751 (Hall P); Luxton v Q-Comp (2009) 190 QGIG 4, 6 (Hall P).

See also Qantas Airways Limited v Q-COMP and Blanch (2009) 191 QGIG 115, 119 (Hall P).

5 Graham Douglas Sergeant v Q-COMP (C/2010/52) - Decision [15] (Hall

P).
6 Newberry v Suncorp Metway Insurance Limited [2006] 1 Qd R 519.
7 See Rossmuller v Q-COMP (C/2009/36) - decision [2]; State of Queensland
(Queensland Health) v QComp and Beverley Coyne (2003) 172 QGIG 1447; Qantas Airways Limited v
QComp (2006) 181 QGIG 301.

8 See MacArthur v WorkCover Queensland (2001) 167 QGIG 100, 101 (Hall P) and cases cited.

9 Nilsson v Q-Comp (2008) 189 QGIG 523, 526 (Hall P).

10 Coombes v Q-Comp (2007) 186 QGIG 680, 681 (Hall P).
11 Lee v Quality Bakers Australia Ltd [2000] QCA 285.
12 Fishlock v Plummer (1950) SASR 176 at 181.

14 Lee v Quality Bakers Australia Ltd [2000] QCA 285.

(a)	confirm the decision; or
(b)	vary the decision; or
(c)	set aside the decision and substitute another decision; or
(d)	set aside the decision and return the matter to the Respondent with the directions the appeal body considers appropriate."