Curtain v Q-Comp
[2011] QMC 50
•8 December 2011
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Curtain v Q-COMP [2011] QMC 50
PARTIES:
PETER CURTAIN
(appellant)
v
Q-COMP
(respondent)
FILE NO/S:
MAG64985/10(8)
DIVISION:
Magistrates Courts – Industrial Magistrate
PROCEEDING:
Appeal against decision of Q-COMP
ORIGINATING COURT:
Magistrates Court at Southport
DELIVERED ON:
8 December 2011
DELIVERED AT:
Southport
HEARING DATE:
1 August 2011, 2 August 2011
MAGISTRATE:
Costanzo JJ
ORDER:
Appeal dismissed.
The decision by Q-COMP, made on 11 February 2010, which affirmed the insurer’s rejection of the application for compensation, is confirmed.
CATCHWORDS:
INDUSTRIAL LAW – WORKERS COMPENSATION - whether aggravation of a pre-existing degenerative disease – what is an “aggravation” – whether injury arising out of employment, or in the course of employment – whether employment also significant contributing factor to injury
COUNSEL:
L Willson for appellant
PB O’Neill for respondent
SOLICITORS:
Parker Simmonds Lawyers for appellant
Respondent on own behalf
Background
This is an appeal by Peter Curtain pursuant to section 550 of the Workers Compensation and Rehabilitation Act 2003 (the "WCAR Act") against a decision of the Q-Comp Review Unit.
The following matters were not in dispute between the parties:
(a) Peter Curtain was employed by Two Pine Pty Ltd, as Operations Manager, for three IGA Stores owned by Craig Meyer at Jindalee, Meadowbrook and Rosewood. He was employed between August 2007 and November 2009.
(b) Peter Mr Curtain was a "worker" at the time of his injury within the definition of "worker" in section 11 of WCAR ACT.
(c) Peter Curtain claims that in the period from July 2007 to December 2009 he sustained an injury pursuant to section 32 of the WCAR Act (see below).
(d) The periods of work during which Peter Curtain complains he was caused specific back pain were:
(i)January 2008 in association with the first refit of the Rosewood store;
(ii)June 2008 in association with the second stage refit of the Rosewood Store;
(iii)June 2009 in association with the refit of the Jindalee Store; and
(iv)October 2009 in association with the refit of the Meadowbrook Store.
Peter Curtain had a pre-existing degenerative disease of the lumbar spine prior to obtaining this employment with Two Pine.
Peter Curtain did not disclose the pre-existing degenerative disease to the employer at any time before starting, or during, his employment.
Peter Curtain’s employment was terminated by Two Pine Pty Ltd on 20 November 2011 (following a meeting on the 11th) for alleged misconduct.
Peter Curtain did not inform the employer about any alleged back injury before his employment was terminated.
On 9 December 2009 Peter Curtain made a hand-written application for compensation (exhibit 1).
On 21 December 2009 WorkCover rejected the application and provided written reasons for the rejection (exhibit 5).
On 6 January 2010 Peter Curtain applied to review the decision (exhibit 6).
On 11 February 2010 Q-Comp decided to affirm the insurer’s rejection of the application for compensation (exhibit 7).
The appeal to this court was lodged on 10 March 2010 (exhibit 8).
The law
This is a hearing de novo
An appeal to an Industrial Magistrates Court is by way of a hearing de novo. See Labaj v WorkCover Queensland [2004] QSC 189 per Douglas J at paragraph [6] and Labaj v WorkCover Queensland [2003] QIC 155; (2003) 174 QGIG 370.
Evidence in chief was led via Affidavits.
The Appellant’s witnesses were:
(i)Mr Peter Curtain, Appellant,
(ii)Dr John Pentis, Orthopaedic Surgeon, and
(iii)Dr Stephen Windley, General Practitioner.
The Respondent’s witnesses were:
(i)Mr John Meyer, owner of the IGA stores,
(ii)Dr Brett Halliday, Orthopaedic surgeon,
(iii)Ms Patricia Plant, Co-manager at the Rosewood IGA store,
(iv)Mr Steven John Porter, store assistant at the Rosewood IGA,
(v)Ms Robyn Morgan, Grocery Manger at the Rosewood store,
(vi)Ms Karen Pryor, Trainee Manager at the Meadowbrook store, and
(vii)Mr Daniel Turner, Physiotherapist.
The onus of proof is on the appellant
The appellant has the onus of proving an entitlement to compensation under the WCAR Act. (see Briffa v Q-Comp [2005] QIC 55; (2005) 180 QGIG 70 and Labaj v WorkCover Queensland [2003] QIC 155; (2003) 174 QGIG 370.
The standard of proof is on the balance of probabilities
In Chattin v WorkCover Queensland [1999] QIC 44 at page 3, the then President of the Industrial Court, Justice Williams, stated:
“The function of a court of law in a situation such as this is to determine whether, for whatever reason, it is more probable than not that there is a causal relationship between the accident and the plaintiff’s post-accident condition.”
In Lithgow City Council v Jackson [2011] HCA 36 although addressing the issue of proving causation on the balance of probabilities by the use of circumstantial inference, in an action for negligence against the Council, Crennan J summarised the relevant law at [92]-[94]:
[92] … Causation is essentially a question of fact, the determination of which involves common sense. (March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506 at 515 and 522–523 ; [1991] HCA 12; Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 413.)
[93] By reference to the following quotation made by Dixon CJ in Jones v Dunkel, ((1959) 101 CLR 298 at 305 ; [1959] HCA 8, quoting from Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 6…) the primary judge recognised correctly that it was possible to make a finding of causation in the absence of direct evidence:
All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant’s negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.
[94] Whilst “a more probable inference” may fall short of certainty, it must be more than an inference of equal degree of probability with other inferences, so as to avoid guess or conjecture. (Luxton v Vines (1952) 85 CLR 352 at 358 per Dixon, Fullagar and Kitto JJ; [1952] HCA 19; Jones v Dunkel (1959) 101 CLR 298 at 304–305 per Dixon CJ. Cases concerning the line to be drawn between conjecture and inference have been usefully collected by Spigelman CJ in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 275–276 [85]–[88].) In establishing an inference of a greater degree of likelihood, it is only necessary to demonstrate that a competing inference is less likely, not that it is inherently improbable.
Relevant statutory provisions about what the appellant must prove
Section 32 of the WCAR Act relevantly provides:
“32 Meaning of injury
(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
…
(3) Injury includes the following -
(a) a disease..;
(b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation -
(i) a personal injury;
(ii) a disease;
(iii) a medical condition if the condition becomes a personal injury or disease because of the aggravation;
(c) ……
(4) For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
… .”
My powers as an Industrial Magistrate
Section 558 of the WCAR Act provides:
558 Powers of appeal body
(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.
(2) If the appeal body acts under subsection (1)(b) or (c), the decision is taken for this Act, other than this part, to be the decision of the insurer.
(3) Costs of the hearing are in the appeal body’s discretion, except to the extent provided under a regulation.
My decision must be in writing and given in open court
Section 559 of the WCAR Act provides:
559 Decision of appeal body
The appeal body must give—
(a) the appeal body’s decision in a hearing in open court;
and
(b) a written copy of the decision to each party.
The Issues
The appellant submitted in writing that the issues are:
“(i) As a matter of fact, what was the nature of the tasks performed by Mr Curtain over time from? (sic)
(ii) On the basis of what was found to have occurred, has Mr Curtain proven that she (sic) sustained an “injury”, (including an aggravation) to which employment was a significant contributing factor?”
The respondent, perhaps more accurately, stated the issues which had to be proved by the appellant were:
(i)that Peter Curtain was a “worker” pursuant to section 11 of the WCAR Act (which was not in issue)
(ii)that Peter Curtain has sustained a personal injury pursuant to section 32(1) or (3) of the WCAR Act, and
(iii)that Peter Curtain’s employment as an operations manager with Two Pine Pty Ltd was a significant contributing factor to that injury or alternatively to the aggravation of an underlying disease.
The appellant concedes at paragraph [62] of the Outline of Submissions that it is an aggravation which is relied upon by the appellant “specifically” i.e. “an aggravation of a pre-existing injury” pursuant to section 32(3) of the WCAR Act.
Peter Curtain says he spent the majority of his time during refits in three stores, in performing the heavy manual work of erecting the shelving, and this is what caused his pain and injury. He says he did not receive a lot of assistance from other staff or other persons.
The respondent’s case is that Peter Curtain was in charge of supervising the planning and physical layout and then the product placement on shelves, and that a good deal of the shelving erection work was also done by others.
Peter Curtain’s evidence about what his work entailed, and about the back pain
Peter Curtain stated that the shelving consisted of centre posts, end posts (of which the heaviest was approximately 10kg), shelving (weighing 3-5 kg), cross-struts or brackets that hold up the shelving (each considered 'light" individually, but which came in heavier bundles) and display boxes on the ends of each aisle.
Such components arrived on pallets and were then "de-palletised", i.e. they were carried individually from the pallet into the store or lifted into or onto trolleys and wheeled into the store where the aisles were being constructed The aisles in the stores were up to 15 meters in length, and each had from some 8 to 15 bays depending on the length of the aisle. Mr Curtain claimed under cross examination that "you never carried the brackets individually". The brackets came in packs of 50 and were lifted from the pallet to the trolley.
Peter Curtain stated (as Mr Meyer conceded) that the process of erecting shelving involved a fair bit of bending, reaching forward or reaching upward and holding shelving parts in place. Steven Porter also described the amount of kneeling involved and that he saw Curtain erect shelving.
For each ‘refit’, the store’s commodities would be taken off shelves and replaced in accordance with a drawn plan. Packaging and other rubbish had to be discarded and there was cleaning involved.
Peter Curtain conceded that from time to time other staff assisted him to erect shelving. However, he denied that the majority of that work was done by others.
Peter Curtain claims it is the work involved in the re-fits which aggravated his condition. He did not give any evidence of any other duties which caused an injury to his back. The only other activity he identified as causing any back pain was driving home each day. In paragraph [12] of his affidavit the Appellant stated:
“The problems with my back and pain commenced in or around June of 2008, during stage two of the construction. It took approximately 90 minutes to travel from my residence on the Gold Coast to the store in Rosewood. On my way home from work each day I would experience pain due to sitting down for a long period of time.” (my emphasis added).
In court, Peter Curtain also commented as follows:
“Can you describe what your pain was like over your employment? The more I erected and the shelving - I did physical hard work; bending, lifting, twisting. It was at its worst part when I was doing small jobs; moving shelving, moving stuff. If I had a pain, a problem, I would drop that job and move other things - I'd come back. So in other words I was managing it, and it just became part of me. When I had the big job with Rosewood, and to a lesser extent Jindalee, and to a bigger, more extent Meadowbrook, and with the long driving, it was really when I felt it. Driving home after a long 12 hour day erecting shelving, lifting, bending, turning, and sitting in the car driving the long distance.
Can you tell us why you didn't report this pain that you received over time? Why didn't you report that to Craig Meyer? At the time the job was very important to me. I enjoyed the work. I worked with people. I just took it as part of the job. In other words I put up with the pain and I did the exercises, and I'd have a hot bath or hot shower when I got home, and so I was able to manage it.”[1]
[1]Transcript page 1-36, line 12.
Craig Meyer’s affidavit evidence of what Peter Curtain’s work entailed
The Appellant was employed by Two Pine Pty Ltd as an Area Manager or Operations Manager. Peter Curtain’s employment began on 31 July 2007.
Peter Curtain’s job was to manage and oversee three IGA store franchises. He was responsible for the overall management of staffing; training; Workplace Health & Safety and all matters concerning the day to day operation of the stores. This involved travelling from store to store to manage whatever issues arose on a day by day basis at each store.
Meyer stated he worked with Peter Curtain in moving and erecting shelving at each of the three stores. He said it was for a few days in Rosewood in May/June 2008 and a few days in Jindalee in June/July 2009 and another few days at Meadowbrook in October 2009.
Meyer also said his observation of Peter Curtain moving or erecting the shelving was that he was “fine with the task” and that he “did not show or report any signs of difficulty”. In fact, Meyer says Peter Curtain often bragged to him, while doing the task, of
“how good he was at erecting shelving because he had done it for numerous other employers and stores. He claimed to be an expert in the task. He completed his component of the task with no knowledge to me of him having difficulty”.
Craig Meyer stated in his affidavit that on 11 November 2009 he held a meeting with Peter Curtain to address a misconduct issue alleged to involve Mr Curtain. After that meeting Peter Curtain left the office and made a claim for workers' compensation for stress. Mr Meyer went on to say that Curtain’s employment was subsequently terminated because of the misconduct matter. I draw no adverse inference from the fact Peter Curtain was dismissed for alleged misconduct.
I note there is no evidence that before these later events there had been any mention by Peter Curtain to Meyer or to Two Pine that he had sustained a work-related back injury in the course of his employment with Two Pine. It was only after Mr Curtain’s termination that he raised an alleged back injury. Of course, that in itself is not the determining factor. It is a relevant factor.
Evidence about the Rosewood refit (First Stage)
Meyer stated in his Affidavit that he redeveloped the Rosewood Store in two stages in 2008. In January 2008 a new IGA Store was constructed for a period of months while the old IGA store remained open for business. In about May/June 2008, the Appellant, in addition to other staff, were responsible for the fit-out of that newly constructed part of the IGA Store. Meyer stated the new store opened in June 2008.
Peter Curtain and Patricia Plant stated that the initial phase of the Rosewood store refit, putting shelves up and refitting it with deli, bakery and meat items, was in January 2008. Patricia Plant recalled that Peter Curtain performed many of those activities. Robyn Morgan agreed the refit at Rosewood was in January 2008 in readiness for the store re-opening at the end of January.
Patricia Plant stated that her observations of Peter Curtain’s refit work was minimal, that some days she would not see him and on other days she would see him 10, 15 or 20 times per day.
However, Peter Curtain did not work as alone as he made out. Ms Plant stated:
“He had two boys over there all the time. He had Steven Ray, or Brad, or somebody. There was always two staff members on over there erecting shelves.” [2]
and
“I seen Peter put a lot of products on the shelf and things like that, doing the layout of things like that, but actually erecting the shelves, no. He was over the other place several hours by himself, but I was over there sometimes, but when I was over there I never seen him erect the shelves.” [3]
[2]Transcript page 2-6, line 50.
[3]Transcript page 2-5, line 50.
Robyn Morgan, a shop assistant at the Rosewood store, mainly worked the checkouts. Once she became the grocery manager she spent about 30% - 40% of her time in the office. Ms Morgan spent little time helping with the shelving work. A couple of times per week in January 2008 maybe twice a day for 15 minutes. She also gave the following evidence:
“At those times when you did see him, was he assisted by others in erecting the shelving, or doing it himself? The only time I specifically seen Peter doing shelving, putting one set together, he was doing it with others.”[4]
and
“Were there times also when you saw shelving work being done that did not involve Peter Curtain? Yes. Yes.
And who was doing it then? That was then the young fellows that I mentioned there, and sales reps didn't usually put the product up, but they assisted laying it out. But it was mostly the young fellows that I seen doing that, yeah.
Right. And how many times did you see that? On the occasions when I visited the store you would see them doing it in that first part of the set up nearly every time you went there, yeah. Because there's a lot of work involved in doing it.
How many times would you have gone there and seen that? I probably went there over a course of about three or four weeks, on an average twice a day would be most of the time.
Right? So yeah.
And so what period of time are we talking about there, that's back in ? That's in January 2008 I'm referring to there, and that's just right before we opened the store. So about the three weeks lead up to that.”[5]
Evidence about the Rosewood refit (Second Stage).
[4]Transcript page2-23, line 25.
[5]Transcript page 2-24, line 20.
Peter Curtain stated that in June 2008 he was working 12-15 hours a day and that he had help. However, he said “no-one was there primarily a full day”. At different times he would have different people during the day, he might take some staff from the old store to help him for a while, but they'd be required back in the old store. He conceded that sometimes he was by himself and sometimes other people were sent to help him.
Patricia Plant made observations of a lot of shelving work being done by other staff:
“Can I just ask you to go to the start of paragraph 11 in your affidavit, please? Yep.
And four lines down you say Steven (Ray) did most of it? Yes.
"Steven did the most of it.” How are you able to say that? Because I was responsible for the young kids. I went over there and told them to go for their lunch breaks and things like that. And at the end of the day I'd asked him what he would do and things like that. So I was responsible for what he was actually doing. He was actually my responsibility at that stage.
So how many days a week was he employed to do that? He did five days. Some days of the year - most of the time I think he worked the seven with, like, the rest of us.
What, to do the shelving? The shelving, yes.
Right. And did you, at any time, yourself, see him doing that shelving work that he was employed to do? Yes. Yes.
Steven that is? There's a lot, yeah.
Right? 'Cause I sort of go over there with him in the morning and things like that - and the pallets. And I actually seen Steven doing a lot of it 'cause I'd go over there and make some morning tea and then the lunchtime and tell them, "Time to go home", and things like that.
Right? And as I said, you have a lot of reps coming and things like that.
Mmm? So you're going over there an awful lot. You know, you have suppliers and things like that. And there was no phone connection, so I was forever taking the phone over and things like that. And I recall the kids cleaning up their mess and things like that.
All right. And at the times that you did see Steven doing the shelving work? Yep.
And directing shelving, did you see what Peter Curtain was doing at those times? He was doing the layout mainly, of the shelves and things like that, working out where the products were going and things like that.
Right? He would have put shelves up, no doubt. I've seen him put a shelf up, you know, and things like that 'cause you have to move - 'cause often the boys would put the shelves here … and here …
Yes? And the product needed to be here …, so Peter would be moving shelves down to make it fit the product … .”[6]
[6]Transcript page 2-9, line 40.
Robyn Morgan saw more of Mr Curtain in the second stage, and saw that he was being assisted by others and that Peter Curtain was working long hours.
Evidence about the Jindalee refit
In his Affidavit, Craig Meyer stated that Two Pine took over the Jindalee store in June 2009. He said the Jindalee store did not get a full re-fit.
Peter Curtain stated that from June 2009 he did the relay and refit of the whole store for four or five weeks. This was well within the period recalled by Craig Meyer who said the actual refit “wouldn't have gone for any longer than two months for each section."
Peter Curtain also conceded that that he got assistance from a number of staff including James Luke, Steven Porter, and Dean and Della from Rosewood.
Peter Curtain does not deny that other people were engaged to help him in the performance of these physical tasks erecting the shelving. The real dispute was in relation to quantity or duration of that help.
Evidence about the Meadowbrook refit
Peter Curtain stated the refit took four to five weeks, from early October 2009.
This is not seriously out of line with Steven Porter’s recollection that the period was three weeks, and that there was "one aisle to go" when he finished helping there.
Peter Curtain agreed that he was assisted at various times, for various periods, by Craig Meyer, Peter Zannit, Dallin Rea and Steven Porter.
Steven Porter stated that he considered the work to be "hard labour". He confirmed that he was performing a lot of bending, carrying awkward and heavy items. He also confirmed that Mr Curtain was working as hard as he was during that time and doing the same amount of work as he did:
Mr Porter, you were asked about what happened individually in each of the first, second and third weeks. Can you also tell us what you saw Peter Curtain doing in each of those three weeks, starting with week 1?‑‑ Starting with week 1, he was helping us take the stock off the shelves, put them into trolleys. Then he would help us remove the shelves, and then on the second week, when the truck came with the new stuff - the new shelves, he'd help us unload the truck, unload - or unpack the pallets that they come in - come on, and he would help us move them into the shop and help erect them. Third week, he'd go along and put the stock in the shelves, and we'd go along with the shelves, put them on where he wanted them. If we went - if we were doing, like, another aisle, he would do them himself.
All right. So, so far as erecting shelving goes‑‑‑‑‑?‑‑ Yes.
‑‑‑‑‑did he do just as much work as you did in those three weeks?‑‑ Yes, he did.[7]
[7]Transcript page 2-16, line 20.
I also take into account the large age difference between these two men.
Karen Pryor’s evidence was that the store was thoroughly cleaned and the shelving was changed. Peter Curtain also did work cleaning the store.
Ms Pryor gave evidence that Peter Curtain would be part of the team doing the physical work. Ms Pryor conceded that she couldn't always see what Peter Curtain was doing because she would be "out at the shop":
“So you wouldn't know what Peter did when he was in the dock, do you? Well, we were all doing the same thing.
Okay. Which would include unloading pallets? Yes.
So that sentence further down, "In fact, he would have done it less than other staff." You don't know that to be true, do you? Well, he would have been doing it less than other staff because he would have been out delegating to all of us what needed to be done.
…
You don't know what Peter Curtain did in the dock when you weren't there, do you? No, 'cause I was out in the shop. Like, we would load up and then we'd all go out to the shop and unload.
In fact, how often would you spend your time in the dock unloading? Well, if I was able to help do that, I would be out there for, like, probably a couple of hours, depending on what what are loading here?
Unloading the shelves? Unloading the shelves. Okay. Well, we would just lay that might take half an hour or an hour to well, I'd say it would take half an hour to load some shelves on, and get some brackets, and then take them out to the shop, and then if Peter was out there I don't know what he was doing.
That's right? I can't vouch for that 'cause I'm not out there, I'm out at the shop.”[8]
[8]Transcript page 2-30.
Ms Pryor also added the following to her evidence:
“Can you just go to the middle of paragraph 23 of your affidavit? Yep.
You say there, "Peter would have helped at times as part of the workforce" ? That's right.
"but he was not the sole person to do this task, and he did not do this task more often than other staff. In fact, he would have done it less than other staff, i.e. he would only do it on the odd occasion." What observations, or knowledge, did you have ? Okay.
to make that statement? Okay. Because Peter was out organising all the shelves out in the shop, and then he would come out the back, and I'd go out the back, and the boys would go out the back, we'd all be going in and out at different times, and then Peter would be making sure that that got sorted out over there, and and to let me know what had to go out. He would be telling the boys, and I'd have to go out and serve, and then I'd come back and help, and then Peter would come out and say how he wanted them, or where the where the shelf had to be set up in the shop, and
Right? So, yeah, I can't I wasn't with him the whole entire time, but he wasn't the only person doing it.
Right? That's all I can say.”[9]
[9]Transcript page 2-31, line 15.
In summary
Craig Myer was not physically present at the stores for any considerable period. He estimated that with respect to the Rosewood store, he visited for a few days and that with respect to the Jindalee and Meadowbrook stores, he visited for a few days, but only half days.
Craig Myer accepted that was the extent of what he actually saw of work at the three stores during these periods. Therefore, Mr Meyer was not able to give helpful or reliable evidence about the physical work that Peter Curtain did at the stores, because he simply wasn't there enough to observe him.
In fact, much the same can be said about each of the other witnesses. They simply could not, and did not, have Peter Curtain under observation the whole time they worked with him. Much, therefore, will depend on my assessment of the medical evidence and of Peter Curtain’s credibility.
Evidence affecting credibility of Peter Curtain
Peter Curtain was asked about the "New employee information form" he signed and provided to the employer on 31 July 2007. First he was asked about about the date of birth he stated on the form.[10]
“You've provided your date of birth on that form as being the 3rd of October of 1950? Yep.
That's not correct, is it? No.
Can I ask you why you provided an incorrect date of birth to your prospective employer? I must have made a mistake.
Do you regularly make mistakes about the date that you were born? I do I do make mistakes from time to time.
Your correct date of birth is actually the 3rd of October of 1947? That's right.
It's not the case, is it, that you're actually trying to make yourself a little bit younger to avoid any issues that your prospective employer might have about your age? I don't understand why - what you're trying to say. You're trying to say that I deliberately put 1950 there instead of 1947 to make myself look younger? I - it was a mistake.
All right? I've done it from time to time. I - you know what I mean, I fill out forms, I make a mistake, I have a PIN number, I make a mistake. Sometimes I forget things, I make mistakes.”
[10]Transcript pp 1-16 to 17.
Further, Peter Curtain was asked about his alleged failure to provide the employer with information about his back problem, or any other health problem, on the same form[11]:
[11]Transcript pp 1-17 to 18.
Mmm-hmm. Okay. You also answered some questions down below, under a section of "Physical/medical", and you've ticked a box that your general health was excellent; you see that?
BENCH: Again, I warn you that if you feel that any answer may tend to incriminate you in any way, you may refuse to answer the question?‑‑ No, I can't see that.
All right, do you see a box about halfway down the page that's headed "Physical/medical"?‑‑ Oh, yes, I see that, thank you.
And you'll see that there's‑‑‑‑‑?‑‑ I - have I any health problems, no.
And above that, you've said your general health, you've ticked excellent?‑‑ That’s correct.
And you've answered the question, "Are there any health problems?" "No"?‑‑ That’s right. Should I have put in there that I have to take tablets? Is that necessary? My - if I take my tablets every day and I don't have any health problems.
Well see, I put to you, sir, that you've been, if not dishonest, that you've been less than truthful in your response to those questions?‑‑ I disagree.
See, I put to you that you failed, for a start, to make any mention of the very serious head injuries that you sustained in 1994 in a motor vehicle accident?‑‑ That's got no - that's not relevant to my employment. I've got a clean bill of health.
I suggest to you that you failed to make any mention of the fact that you've been seeing a physiotherapist over a period of years in respect of shoulder, knee and back pain. You've made no mention of that, have you?‑‑ I was never asked the question.
You were asked about‑‑‑‑‑?‑‑ I wasn't employed, and asked when I was employed, that I was a completely healthy person, right?
The question‑‑‑‑‑?‑‑ I regard myself as a completely healthy person.
Mr‑‑‑‑‑?‑‑ I put down there that my health is excellent‑‑‑‑‑
Mr‑‑‑‑‑?‑‑ ‑‑‑‑‑and at the time of signing this document, my - my health was excellent.
Are you finished your answer?‑‑ Yes.
Mr Curtain, that form clearly asks you are there any health problems, and you failed to mention anything about your previous medical history?‑‑ I did not have any health problems when I signed, no.
And I'll put to you that your responses on that form are misleading and were designed to mislead your prospective employer?‑‑ And I say they weren't.
I find it was misleading, particularly, as is relevant here, in not disclosing the prior back issues.
Peter Curtain also claims he became confused about when he started feeling pain while working for Two Pine Pty Ltd and what he had written in his claim forms. He also had a different recollection of when he was treated by his Physiotherapist[12]
[12]Transcript pp 1-12 to 13.
In particular, at page 1-12, the following cross examination occurred:
“Can I put to you, sir, that that in fact never happened?‑‑ Sorry?
That never happened?‑‑ Never happened?
During that period of time‑‑‑‑‑?‑‑ Mmm‑hmm.
‑‑‑‑‑from July of 2007?‑‑ Yeah.
Through to November of 2009?‑‑ Mmm‑hmm.
You did not consult the Burleigh Head Physiotherapy Clinic in relation to any treatment for back pain?‑‑ Okay. If it wasn’t - I did consult a physio. If it wasn’t Burleigh, it must have been someone else.”
Later, Peter Curtain claimed that he suffers from memory loss:
"I have some difficulty with remembering some long-term or some short-term memory. I have no problem in generally understanding and remembering that I've been to the doctors. And I know that I had general conversations with various doctors about my health, and though doctors would ask me questions regarding my health, and in those discussions with the doctors I would have told him how I was feeling at the time."[13]
[13]Transcript page 1-62.
The appellant’s counsel submitted that “no connection was canvassed by counsel for the Appellant with Mr Curtain as to the cause of memory difficulties.”. Counsel further submitted that “The Respondent, Q-Comp did raise the fact that Mr Curtain had been involved in a car crash in 1994 and sustained serious head injuries to the extent he is now prone to seizures [T1-15, L5]. It is open for the Magistrate to find that the reasons provided by Mr Curtain to (sic) are satisfactory reasons for his inability to remember specific dates related to his claim.”
The onus of proof here is on the Appellant, not on the Respondent. There is simply no evidence produced by the appellant which corroborates the claim of memory loss, nor to establish any probable link between his head injury or seizures and the claimed memory loss. In any case the evidence raised about memory loss did not, in my view, provide any reasonable explanation for putting vastly different dates on different documents as to the date of the injury or an incorrect date for his date of birth.
Analysis of Peter Curtains relevant work
I do not intend to repeat all of the evidence by each of the witnesses who observed or physically assisted Peter Curtain doing the refit and shelving work.
I am satisfied that not all of the work performed by Peter Curtain was observed by others.
I am also satisfied that Peter Curtain did make comments to IGA staff about his back. For example, I am referred by counsel for the appellant to the affidavit by Ms Patricia Plant, Co-manager at the Rosewood store. At paragraph [8] of her Affidavit Ms Plant stated:
Peter Curtain did mention to me a few times about having some stiffness to me at the end of the day. This was early in the development stage in approximately January 2008, When speaking to me, he did not refer to his back as such but just that he was stiff. However I do recall on one occasion when I overheard Peter talking to one of the meat staff in the Rosewood store in approximately early 2009 as I recall. The meat worker was complaining of a sore back and Peter told the worker that he also suffers from a sore back and he showed the worker some back exercises to do to relieve the symptoms. He did not refer to why his back was sore.
When asked about this report of being stiff Ms Palnt said it happened in January 2008 and she also provided the following evidence:
“… did you form a conclusion or an impression as to where he was stiff? I thought the whole body. Like - because I think we were all pretty sore, you know?[14]“
[14]Transcript page 2-4, line 4.
I also note, Ms Plant saw Peter Curtain demonstrate exercises for a sore back to the man (named Nicholas) and that “Peter was down there showing him exercises, how to not get a sore back, how to fix and stretch, things like that”. [15]
[15]Transcript page 2-4, line 45.
I was also referred by counsel for the appellant to paragraph [8] in the affidavit by Steven Porter, a worker at the Rosewood IGA store, for the fact that Peter Curtain told him that he had a stiff back at the stage when the shelving was being erected at the Meadowbrook IGA store in October 2009. In paragraph [8]. Mr Porter said:
“Peter Curtain did mention to me that he ahd a stiff back when we were erecting the shelving at Meadowbrook. At that stage we were working long hours i.e. about 10 hour days. We were all tired from the work. I also felt stiff in the back. And so I did not think anything of it when he said it. He did not mention as serious or as if he had just done something to hurt his back. It was just a casual comment and he did not sound serious about it.”
In court before me Stephen Porter also gave the following illumination[16]:
“Well, at the end of the day you - when we were finishing, when you hop up from the shelves, you stand up and obviously grab for your back, and, oh, a bit stiff, have a bit of a stretch, and if Peter was beside you you'd say that to him and he'd be, like, "Oh, yep, so is mine."
[16]Transcript page 2-12, line 11.
This evidence does not, in my view, connect Peter Curtain’s “sore back” or “stiffness” to any work injury.
I am satisfied that the work involved in the refitting of the shelving and displays required manual labour by a number of staff for periods of two to three weeks at a time and that the work included unpacking pallets, lifting bundles of brackets into trolleys, lifting shelving into trolleys, handling and moving shelving accessories, moving stock from and back onto shelves, assembling and moving shelves at various heights and general cleaning. Furthermore, the actual physical movements required for this work included repetitive lifting, bending and reaching, carrying and holding awkward and sometimes heavy equipment and lifting of assembly items alone or as part of a team.
I am also satisfied Peter Curtain deliberately downplayed how much assistance he did in fact receive by other employees in-store on the shelving refit and by staff from Qld Retail Supplies on the dense ends.
The Medical Evidence
Daniel Turner, Physiotherapist (Burleigh Heads Physiotherapy Centre)
Peter Curtain has espoused throughout that he received treatment from the Burleigh Heads Physiotherapy Centre for a work-related back injury. For example, in the hand-written application for compensation dated 9 December 2009 (exhibit 1) in direct answer to a direct question as to when he first sought treatment for the injury, Peter Curtain wrote “Burleigh Heads Physiotherapy Centre”. The matter ought to have been quite fresh in his memory at that time.
Again, paragraph [13] of his own Affidavit (sworn on 13 July 2011), Peter Curtain stated he attended at the Burleigh Heads Physiotherapy Centre for his back pain and that he was given an exercise program to help with the pain.
Daniel Turner, one of the owners of the Burleigh Heads Physiotherapy Centre, has exhibited to his Affidavit Peter Curtain’s consultation notes..
Those notes show that Peter Curtain first sought treatment there on 2 June 2003 for a right shoulder injury which arose from a sailing activity a day earlier. There were follow up consultations for the shoulder in June and July 2003.
Referring to his notes of a consultation on 9 January 2004, Mr Turner stated:
“Mr Curtain presented complaining of low back pain and pain in the right arm and leg. He reports that it came on following reaching upwards to move a box. And then objectively - this is an objective examination - he had no pain with [indistinct], has no neurological symptoms, and he had full range of lumbar flexion. That extension and right lateral flexion reproduced from pain. And then in regards to the treatment he was provided he was given some heat, soft tissue massages for his erector spine, some joint mobilisation through his thoracic spine and in his lumbar spine and then some interferential therapy. … I hadn’t written down a firm diagnosis but looking at my notes the diagnosis would be something of a soft tissue strain to his right lower lumbar spine.”
On 7 November 2005 Peter Curtain complained about an ache in his shoulder. On 20 December 2005 however, there was a further complaint about his back wherein he said it arose after his foot slipped while cleaning his pool. There was a small tear of a ligament in his knee) and low back pain. Treatment consisted of applying heat, some soft tissue releases and some joint mobilisation. He was provided with back exercises.
Interestingly, the final consultation happened on 28 April 2007 (before Peter Curtain started working for Two Pine Pty Ltd) and it did not relate to his back. It was about his shoulder.
Clearly, Peter Curtain already had a history of back pain before working for Two Pine Pty Ltd. I find the evidence of Turner reliable and, therefore, I also find that there is no evidence to corroborate Peter Curtains assertion that he went to Burleigh Heads Physiotherapy Centre, during the course of his employment with Two Pine Pty Ltd, to seek treatment for work-related back pain.
Doctor Steven Windley, General Practitioner (called by the Appellant)
Peter Curtain had attended both the Treetops Plaza Medical Centre and the Varsity Medical Centre. Doctor Windley provided affidavit evidence and exhibited relevant consultation notes relating to Peter Curtain from each Medical Centre. The medical records do not corroborate any complaint being made by Peter Curtain about any work-related back injury before December 2009.
The consultation notes also refer to a consultation on 17 December 2005 for an injured knee whilst cleaning a swimming pool. At a consultation on 31 May 2008 it was noted that Peter Curtain had gone off his elipim and had a seizure. Doctor Tariq noted that Peter Curtain had “Restless legs for many months can't sit still for any period of time, worse at night. Stretches and tonic water.”
There was also a consultation on 3 July 2008 and it was mainly about a dog bite injury. Peter Curtain provided this history:
“… dull ache mostly front of thigh only on sitting still - eg watching tv, needs to get up and move, the ache 2/10 is immediately relieved by walking. No ache in calves, no wasting, peripheral sensation and power normal ROM at hip and knee normal has not been doing his stretching exercises - advised the same.”
In cross-examination, Doctor Windley said this history was consistent with symptoms potentially caused by degeneration in Peter Curtain's back.
However, there was no suggestion by Peter Curtain that this was a work-related injury despite the fact this was during the period when, according to Peter Curtain, he was experiencing back pain from his work duties at the Rosewood store from moving and putting up shelving.
Further consultations on 4 and 8 July 2008 related only to the dog bite injury. Again, there was no mention of back pain or other symptoms.
Dr Windley confirmed that from July 2008 to November 2009 there was an eighteen month period during which Peter Curtain did not seek any medical treatment from these medical centres. This was the very period during which Peter Curtain now claims he was experiencing work-related back pain.
It was not until 26 November 2009 that Peter Curtain saw Doctor Ramesh Singh about being sacked and being depressed. He did not mention any back injury, work-related or otherwise, to Doctor Singh.
On 8 December 2009 the next consultation was with Doctor Windley. It was his first consultation with Doctor Windley who therefore noted the medical history provided by Peter Curtain. It makes no reference to any back pain or other symptoms of back injury.
On 22 December 2009, Peter Curtain made his first complaint to Doctor Windley about a work-related back injury which he claimed dated back to January 2008. The notes refer to the requirement by WorkCover for the supply of a Workers' Compensation Medical Certificate. Of note, Peter Curtain was not provided with any treatment that day for any back injury. Indeed, there was no treatment provided until 11 March 2010. Doctor Windley stated in evidence that on 22 December 2009 Peter Curtain:
“… described that during fit out of a store, during the process of unpacking the equipment and, you know, wall equipment, et cetera, and putting that up that his back pain had flared. And during that process of working that day, during that job that his left knee pains had begun. “
In relation to his note-taking during the consultations Doctor Windley stated in court:
“… how do I determine what to take notes of, is that … Initial consultation anything they say that is related to past medical conditions, something significant that may come up in later consultation, disease states, et cetera, that’s what I take on first presentation. Thereafter anything of significance apart from their primary presenting condition is the basic cause for my note taking.”
Doctor John Pentis, Orthopaedic Surgeon (called by the Appellant)
In his report dated 25 May 2010 Doctor Pentis noted that from June 2008 until November 2009 Peter Curtain was
“working as an operating manager for a supermarket and it meant opening up 'newbie' supermarkets. So he had to do a lot of the setting up which metal shelving that was heavy and he had to erect it. Therefore lift and bend. During this period of time he has apparently had increasing problems with his knee and lower back, developing symptoms in those regions plus his shoulder which he fell on at one stage and aggravated the shoulder."
No other evidence was given by Peter Curtain, or anyone else, that he had a fall which aggravated his shoulder.
The 25 May 2010 report also stated:
"As to his lower spine, here he has pre-existing degeneration and a congenital defect, a lysis. He has aggravated this, to some extent, with the lifting. It is difficult to say with certainty as to how much, He, currently, has an impairment using AMA 5th Edition Guidelines, table 15.3, an 8-10% whole person impairment. I would assume 20% of this may be due to the effects of his work activities, the rest due to the pre-existing degeneration and congenital defect".
Doctor Pentis stated he was provided with the following further history:
"He finds that he still has problems with the back, some numbness at times on both anterior thighs, on and off changing positions.
Difficulty sitting for periods of time, longer than two or three hours, has to get up and change his position. Can't drive long distances without it aggravating the back and he finds it difficult to sleep, lift, bend and twist with his back.
With the knee and shoulders, there is pain in both regions and some limitation in the range of movement and strength.
He is 62 years of age, overweight but fit. He did have a head injury in 1994 and is on medication for that. This was caused by a motor vehicle accident. He said he had no other problems subsequent to that, other than the head injury."
On consultation Doctor Pentis found:
"There was tenderness in the lumbar musculature on ranging and palpating the lower lumbar region. No gross tenderness in the buttocks.
Straight leg raising of 90 on the right, 90 on the left.
Normal motor and sensory function in the lower limbs. Jerks were hard to elicit at the ankles and at the knees.
Sensory function was normal, Flexion was slightly decreased in the lower spine and a stiffish rotation.
There was a valgus deformity of both knees. No gross wasting. He could stand on the heels and toes. There was difficulty squatting, 30% loss and there was chondromalitic crepitus on ranging both knees and no gross laxity. Slight loss of flexion of both knees.
Extension was full. McMurray's test was negative. No ligamentous laxity."
Regarding x-rays, Doctor Pentis noted:
"These showed degeneration and a spondylolisthesis as L4/5 in the lumbar spine and a bifid S1 spine. No x-rays of the knees were reviewed. No x-rays of the shoulder were reviewed. Range of movement of the shoulder was full and there was no crepitus or clunking."
In cross-examination Doctor Pentis said the disc space narrowing confirmed by the x ray in 1996 was the first sign of degenerative changes in Peter Curtain's spine.
Spondylolisthesis is the medical condition wherein there is anterior or posterior displacement of a vertebra or the vertebral column in relation to the vertebrae below.
Finally, Doctor Pentis concluded:
"The gentleman has sustained injuries to his body in his work activities. It is more than likely that he has aggravated his knees in the activities of bending and lifting. He does have pre-existing degeneration and this work activity has probably aggravated it to an extent and left him with further problems, that is, further degeneration.”
The report by Doctor Pentis noted the shelving Peter Curtain worked with was heavy, but under cross-examination Doctor Pentis confirmed he did not have an indication from Peter Curtain about the weights involved. Doctor Pentis was of the view that the shelving had to be 20 kilograms or more to be considered heavy for lifting and bending in the manner described. Various weights of the shelving components were put to Doctor Pentis and he conceded that he would not regard them as being heavy. At transcript page 1-36 the following questions and answers occur:
“I want you to accept, Doctor Pentis, that there will be evidence before the Court that the heaviest component of this shelving are described as being some end posts, and that they weighed approximately 10 kilograms?‑‑ Yes.
That the usual course would be that they would be manoeuvred by two people. Would you consider if that history is accepted by the Court that that would constitute heavy lifting or heavy work, heavy manual work?‑‑ No. If you divide by two it's about 5 kilos, so it's acceptable. But again, it provides that if you're not doing something [indistinct] how you're placing it.All right. And I want you to also accept for the purposes of the cross-examination, Doctor, that the evidence will be that the stainless shelving that was inserted into the shelves, the stainless steel shelving weighed between three to five kilograms?‑‑ Yes.
Once again, would you consider that to be a heavy load?‑‑ No, straight up it's not a heavy load, no.
All right. To what extent did Mr Curtain indicate to you in the history that he was undertaking the erection of the shelving either by himself or without assistance? Did he give you any indication as to how much he was actually physically doing?‑‑ Not that he was having - well, not in a documented fashion where - exactly what he was doing, but I can gather he was doing it. He didn't say whether he was doing it with anyone else either, from my notes.
All right. Well, I'm just interested on what factual basis you've prepared your opinion then. What was your understanding as to the work that he was actually undertaking? Can you tell us what he told you?‑‑ Yeah. At the time he was setting up metal shelving, head high, I believe, and he had to erect it, bend and lift. So he had to bend down to pick it up and lift it and then get it into position, and this is what caused the pain in his back. I assume it's what caused his [indistinct] pain as well.”
Peter Curtain told Doctor Pentis he had experienced symptoms between July 2008 and November 2009. Doctor Pentis was asked:
I'm just interested on what factual basis you've prepared your opinion then. What was your understanding as to the work that he was actually undertaking? Can you tell us what he told you?—
Doctor Pentis answered:
Yeah. At the time he was setting up metal shelving, head high, I believe, and he had to erect it, bend and lift. So he had to bend down to pick it up and lift it and then get it into position, and this is what caused the pain in his back. I assume it's what caused his [indistinct] pain as well.
All right. And so he did report to you the fact that he was suffering from back pain in the course of doing that?‑‑ Yeah, I think that they're sort of on an ongoing way continued, yes.
As I would have expected, as a matter of common sense, Doctor Pentis also said his opinion depended on “how much shelving you actually put up, and how much hands on you did.”
In the doctor’s assessment the pre-existing degeneration is was responsible for 80% of Peter Curtain's condition.”
Doctor Pentis confirmed that Peter Curtain’s spondylosis in his back is a condition known to lead to degenerative changes in the spine and that it had in fact caused such changes in Peter Curtain. He expected that the degenerative change would progress given the work undertaken by Peter Curtain as a supermarket manager. In cross examination a scenario was put to Doctor Pentis suggesting that the work period involving the refits was for two to three weeks on three separate occasions in the course of 15 months. That did not alter Doctor Pentis' assessment that 20% of whole the whole of person impairment may be due to the effects of his work activities
Importantly (at p 39 of the transcript) the following evidence was given:
“Okay. Can I put these propositions to you, Doctor, that - and I think that you've already agreed with the first one - that I would suggest that the biggest contributor to any underlying problems that Mr Curtain is having with his back is the degenerative process going on in his back, and those constitutional defects?‑‑ Well, as I said before, it can continue to degenerate, it's proportional to what activities you perform, daily life to an extent could have caused it, if he was performing vigorous sport or vigorous work activities, it will tend to progress it even further.
All right. And so therefore, given that we're dealing with a man of that age, of 62 years of age, can I put to you that his work and social activities prior to commencing with this employer of Two Pines, would probably be the next most significant contributing factor to the state of his back?‑‑ Yes, well they all add up.
And indeed, in terms of the 20 per cent that you've assessed as being work-related, can I put to you that a fair proportion of that would be related to his earlier 20 years of service of working in supermarkets?‑‑ Well if you're carrying out a lot of bending and lifting it would cause problems.”
also, at page 1-41, the following evidence was given in cross-examination:
“Doctor Halliday has concluded his affidavit by saying, “The fundamental point is that Mr Curtain was prone to feeling pain and discomfort in his back because of its degenerative condition.” And I ask whether you’d agree with that proposition?‑‑ That he was prone to feel it [indistinct].
Yes?‑‑ Yeah. I believe he should have some problems from that and that’s been taken into consideration. Though if you've got a degenerative back and you've got a spondylolisthesis spread, chances are if you do something you will aggravate it and you will experience problems. And lifting, bending, twisting awkwardly, any of those things can cause it.”
The appellant submits there is no dispute that Peter Curtain has had previous back pain. However, Doctor Pentis was asked to comment on the fact that during the period of time from July of 2007 through to the start of November of 2009 that Mr Curtain had “not sought treatment or made a report to any of his GPs of having any work-related back pain or back symptoms”. It was put to him that “that history of a failure by him to seek medical treatment or make note of any back pain or symptoms, is not consistent with him experiencing back pain in the workplace as he’s reported to you?” Doctor Pentis answered:
“Yeah, it depends on how stoic he is. You do find some people who don’t complain a lot, they just accept it and work around it. Some people whinge a lot, who are seen by their general practitioner a lot. So it’s a very - so it depends on the person as well and as to how much trouble they’re getting. If they’re getting a lot of trouble and you had specific signs of [indistinct] tremor, I think you’d be a bit more worried and you’d probably see your doctor and see them more often. But if you’re just having back pain and I think most people who have got back pain - and some people accept it, some don’t.”
Peter Curtain did report to Doctor Pentis that he had back pain in an "ongoing way" pain over a period of time from July 2008 to November 2009.[17]
[17]Transcript p 1-36, lines 45-55.
Doctor Brett Halliday, Orthopaedic Surgeon (called by the Respondent)
Doctor Halliday provided a report dated 23 November 2010.
That report notes a history that Peter Curtain was the operations manager responsible for setting up three supermarkets. Peter Curtain reported being hands-on with the assembly of shelves and layout of the store. He would lift shelving and internal fixtures off trucks. The report notes that as opposed to there being a specific date of injury there was an accumulation of injury over time and that the heavier work-related to setting up a supermarket in late 2008 and early 2009.
Doctor Halliday noted Peter Curtain had spondylolisthesis of the lumbar spine as well as spondylosis at multiple levels and that the 1996 x-rays demonstrate significant lower lumbar pathology. Doctor Halliday deposed in his affidavit that at the time of consultation, Peter Curtain reported to him that he experienced episodes of lower back pain over the years and that he had managed it with a chiropractor by doing irregular stretching exercises. Peter Curtain reported he had good and bad weeks. Doctor Halliday noted that the history provided to him was consistent with the condition of his spine as revealed in those x-rays.
There were no inconsistencies in the examination, but he noted that Peter Curtain's back pain had not improved despite ceasing work 12 months earlier.
Doctor Halliday concluded:
“Mr Curtain's symptoms relate to his natural history of his underlying degenerative disease of the lumbar spine. This is a long-term pre-existing condition. Similarly with regard to his left knee recent x-rays show that he has degenerative disease of his knee. He can recall no specific work injury or traumatic event related to his left knee apart from a simple fall that may have occurred during his time with this employer.
Both his symptoms related to his left knee and his lumbar spine relate to pre-existing degenerative disease and the associated natural history. There is no evidence of any work-related event. There may have been a work-related aggravation related to the heavy physical labouring he was required to do. The work-related aggravation would have ceased three months following the cessation of the activity. His ongoing symptoms relate to the natural history of the degenerative disease in both the back and left leg.” (my underlining)
Doctor Halliday stated Peter Curtain’s back was prone to discomfort because it is quite degenerate. He noted Peter Curtain had spondylolisthesis in his back which was a condition known to lead to degenerative disease and also to manifestations of pain. Doctor Halliday opined there was no evidence of a work-related event. He said there may have been a work-related aggravation related to heavy physical labouring he was required to do but that the aggravation would have ceased three months after the cessation of activity.
On the other hand, Doctor Halliday noted Peter Curtain reported to him that since he had stopped work that there had been no difference in his symptoms despite no longer performing the heavy physical work. Doctor Halliday concluded his back pain relates to the natural history of his underlying degenerative disease of the lumbar spine.
Doctor Halliday also concluded that he could find no ongoing work-related conditions and that, at best, Peter Curtain had suffered “a temporary aggravation of his pre-existing degenerative disease of the lower back and left knee. The work-related aggravation has ceased”. Doctor Halliday did acknowledge that Peter Curtain “will continue to suffer exacerbations of lower back pain with heavy physical activities.”
Doctor Halliday concluded his affidavit at paragraph [13] with an observation that what he meant by a work-related aggravation was that, given the extent of degeneration in Peter Curtain's lower back, he would experience episodic back pain following physical activity which would usually resolve within one to two days before returning to normal. This would cause no underlying change to the structure of his spine, nor would it involve any damage or injury to anything inside his back or his disc. Doctor Halliday concludes that Peter Curtain was prone to feeling pain and discomfort in his back because of its degenerative condition.
In cross-examination Doctor Halliday was questioned about Peter Curtain’s spondylolisthesis: (at pp 87-88):
Mr Curtain has a condition called spondylolisthesis which is a developmental condition which results in incorrect formation of the last lumbar vertebrae and its relationship with the sacrum to the base of the spine. And this occurs around about the age - teenage years and often goes undetected for many years. One of the things that this condition can result in is degenerative changes in the lower back because it’s an abnormal vertebrae and these usually present somewhere around the third decade of life, often in people who’ve been very fit and healthy until that time, with lower back pain. And then over time the degenerative changes progress. At the lowest level, an L5 S1 where the spondylolisthesis is - there is evidence of some degenerative change and above that at the next level above it’s quite more marked degenerative change. Now, on the X-rays taken from 27th of October 2010 the defects - I was able to view some X rays from 1996 - and the defects were there at the time with degenerative narrowing of the L4-5 discs but not as bad as it was in 2010 on the newer X-rays.
Okay. How common is this type of defect? In general it can occur in up to one per cent of the population but often goes undetected because people who have - it is unmasked by heavy - heavy workers usually. So people who worked in a labouring or a trade activity will develop back pain and people who sit in a desk in an office, a lot of them don’t 'cause they don’t stress their not quite formed correctly back. Some people can go asymptomatically throughout life, but that’s not very common.
Okay. Now, somebody - Peter Curtain is somebody that has some back pain? Mmm hmm.
Would this constitutional defect make him more at risk of developing back pain? Yes.
Would this defect make him more at risk of accelerating the degeneration in his back? The back pain comes from either the defect or the degenerative changes that occur in the back. And the degenerative changes are changes that occur either as a result of the defect or as a general change throughout life. So in part that’s true, but it can - you can also get degenerative changes through life and work.
Okay. What sort of activities then would, from an environmental perspective cause more degenerative change in somebody like Peter Curtain? There’s a very large study from many years ago out of Iowa - sorry, Idaho, where the potato farmers in America live, and they found that potato farmers who would lug sacks of potatoes on their shoulders and throw them onto the backs of the truck as the truck went past and pick up the next one, and they would work from dawn till dusk lugging potato sacks, they had no greater instance of back pain than the general population; i.e. hard work generally doesn’t cause back pain. It’s associated with constitutional reasons for developing the degenerative disease spondylolisthesis or spondylolysis which is what the defect is called before the slip occurs is one of those causes. So it’s not necessarily the work causing the pain, it’s the fact that the problem is there to start with.
Yes. If somebody has already that problem and does, for example, repetitive bending and repetitive reaching for weeks at a time? Mmm hmm.
Could you see that that would be a contributor to degeneration or acceleration? No, they would develop pain as a result of their existing degeneration, but that wouldn’t accelerate the degeneration from work activities such as repeated bending and repeated lifting. They would suffer symptoms, but it wouldn’t make the degeneration worse.
There was some disagreement between Doctor Pentis and Doctor Halliday on whether episodic back pain following physical activity would usually resolve within one or two days and cause no underlying change.
Doctor Pentis was asked: (pp1-40-41)
Can I put this proposition to you that those periods of some back pain that Mr Curtain may have experienced have caused no underlying change to the structural condition of this spine? I think it’s probably aggravated it to some extent. It’s difficult to say with a hundred per cent certainty as to how much or at all really, guess-timating. Some people believe if you got injured or a degenerative spine that you can assault it and then have no problems long term, but that’s not the case. (my underlining)
All right. Well, see I put to you that Dr Halliday in fact has indicated in his affidavit that “He would experience episodic back pain following physical activity which would usually resolve within one to two days before returning to normal. This would cause no underlying change to the structure of his spine nor would it involve any damage or injury to anything inside his back or the disc.” Would you agree or disagree with that proposition? No, I disagree with that, 'cause I’ve got a back that’s got about four or five fractures of which one was stress, associated [indistinct]. Like, [indistinct] I end up [indistinct]. And the last time I’ve done this was about two or three months ago, and it was just moving ports and moving some slight bits of furniture and I’ve still got a sore back.
The greatest point of difference between Doctor Halliday and Doctor Pentis was about whether work factors caused further damage or acceleration to degeneration of Peter Curtain's lumbar spine.
Peter Curtain’s case is that given the last refit was at Meadowbrook, where Peter Curtain worked with Steven Porter in October 2009, and that it lasted for at least three weeks, the complaint to Doctor Windley of 22 December 2009 is still within the 3 month period of cessation of those activities.
Doctor Halliday conceded that with his constitutional defect, Peter Curtain would be more at risk of back pain.
Doctor Halliday also said in cross-examination in relation to work involving repetitive bending and reaching for weeks at a time:
"they would develop pain as a result of their existing degeneration, but that wouldn’t accelerate the degeneration from work activities such as repeated bending and repeated lifting. They would suffer symptoms, but it wouldn’t make the degeneration worse." [18]
[18]Transcript p1-88, line 20.
The respondent submitted that Doctor Halliday’s opinion as to the nature and extent of Peter Curtain's condition is consistent with the evidence that during the relevant working period Peter Curtain did not seek any medical treatment and that he took no time off (from work) because of any work-related injury. It was submitted it was also consistent with the evidence of episodic back pain experienced from driving home in the afternoons and, as reported to Doctor Tariq on 3 July 2008, of experiencing symptoms when he was sitting at home at night watching television.
Appellant’s submission about the medical evidence
It is submitted by the appellant that Doctor Pentis’ opinion should be preferred over that of Doctor Halliday “primarily because he was able to explain his reasoning to the court” because he “provided an example, namely in himself in which he felt proved Halliday's theory was wrong.”
Respondent’s submission about the medical evidence
The Respondent submits that when an “analysis of the evidence is undertaken, not even the evidence of Doctor Pentis supports the employment at Two Pines as being a significant contributing factor to the 'injury'.”
Discussion and findings
I agree with the submission by the respondent that on Doctor Pentis’ own findings, 80% of Peter Curtain's back injury was caused by a degenerative process and of the remaining 20% his other work, and other activities, during his 62 years were the next most significant contributing factors.
Peter Curtain gave a work history of some 20 years of involvement in supermarkets. Of late, two years and four months was spent with Two Pine Pty Ltd, in the course of which on three occasions for two to three weeks at a time he (together with others) worked at laying out and setting up new shelving and relaying stock.
On Peter Curtain’s own evidence he did not seek medical treatment for a work-related back injury during the period of his employment with Two Pine Pty Ltd. Nor did he take any sick leave because of any such injury. Nor did he report such injury to his Employer although he knew precisely what the reporting requirements were. I do not accept his reason that he would have been reporting “myself to myself”.[19] He was the store manager and knew it would have to be reported to the employer. He had, as the respondent submits “ultimate responsibility for the enforcement of Workplace Health and Safety policies at the employer and having been provided with a copy of the relevant policy[20] and reading it;[21]” He had also instructed Karen Pryor to keep a record of injuries[22] and had directed and reinforced with staff the need to report injuries.[23] Not once, by these or by any other means including opportunities such as weekly management meetings, did Peter Curtain complain that his back injury was causing any incapacity for work.
[19]Transcript page 1-30, line 38: “I was an extremely busy manager and I was busy at the time and I was overriding - overseeing other people and because I was in control of everyone else I didn’t seem to have the time or to do it for myself. In other words, I didn’t at the time take into consideration that I would report myself to myself.”
[20]Exhibit CM-6 to the affidavit of Mr Craig Meyer.
[21]Transcript p 1-27.
[22]Transcript p 1-28
[23]Transcript p 1-28
Also, I find that Peter Curtain gave several inconsistent versions of the date of injury, he did not inform the employer about his pre-existing condition, and he lied about his age before commencing employment.
I did not find Peter Curtain to be, as some witnesses are found to be, a difficult but truthful witness. I find his evidence to be lacking in credibility.
Expert evidence is admissible to provide specialised information likely to be outside the experience and knowledge of a judge or jury.[24]
[24]For a discussion of the use and limits of expert evidence in Australia see Farrell v R (1998) 194 CLR 286; (1998) 155 ALR 652; (1998) 72 ALJR 1292; [1998] HCA 50 at [29] and [91] – [95]:
However, before a court can assess the value of an opinion it must know the facts upon which it is based.[25]
[25]See R v Turner [1975] QB 834 at 840 – 841; [1975] 1 All ER 70; [1975] 2 WLR 56; (1974) 60 Cr App Rep 80 [1975] 1 All ER 70; [1975] QB 834 per Lawton LJ. See also Pollock v Wellington (1996) 15 WAR 1,
Further, in relation to assessing the medical expert opinion evidence, the respondent referred me to Pollock v Wellington (1996) 15 WAR 1 at 3 where Anderson J. stated:
“Before an expert medical opinion can be of any value, the facts upon which it is founded must be proved by admissible evidence and the opinion must actually be founded upon those facts. As with any other evidence, expert opinion must be comprehensible and the conclusion reached must be rationally based. A Court ought not to act on an opinion the basis for which is not explained by the witness expressing it.”
However, in the Dispute Resolution Directorate of Western Australia, in View Resources Pty Ltd v Keith Douglas Gourley; Insurer GIO General Ltd (C9-2009; 9 April 2009, unreported)[26] Commissioner McCann held:
“For the purposes of the rule in Pollock v Wellington there need not be an exact correlation between the facts as proven and the assumed facts relied upon by the expert: (see Paric v John Holland Constructions Pty Ltd (1985) 62 ALR 85 per Mason ACJ, Wilson, Brennan , Deane and Dawson JJ at 87-8, Beer v Duracraft Pty Ltd [2004] WASCA 192 per McClure J at [80] and Leeder v The State of Western Australia [2008] WASCA 192 per Newnes AJA at [153]). The decision-maker must “examine any variation between the two in order to assess whether any unproven fact relied on by the medical practitioner or any omission from the material given to him or her renders the opinion inadmissible or of no weight” (per McClure J at [80]). It is a question of fact whether the assumed facts and the facts as proven sufficiently correspond to each other so as to justify the admission of the opinion (Paric at 88). The opinions of Mr Wong and Dr Williams were both admissible and entitled to weight provided that it was found that the worker’s foot slipped 70-80mm and he jarred his back as predicated by the slip scenario, irrespective of what caused his foot to slip in the first place.”[27] (my underlining)
[26] contra dicta by Walker CCJ in the Compensation Court of NSW see Brown v Iontask Pty Ltd (2002) 24 NSWCCR 231 at [62]. His honour was concerned with the devastating effect such rules of evidence would have if applied inflexibly in a jurisdiction which operates nearly exclusively on the tender of untested written reports. See also Hevi Lift (PNG) Ltd v Etherington (2005) 2 DDCR 271 at [30] and [84] where the NSW Court of Appeal did not accept Walker CCJ’s views.
Under section 32 of the Act I must be satisfied an aggravation arose out of, or in the course of, employment and the employment was a significant contributing factor to the aggravation.
Was there an aggravation?
In this case I need to consider not only the fact that Peter Curtain has a pre-existing condition namely, a degenerative spine, that may make him prone to injury, but whether the disease or pathological condition of a degenerative spine has been made worse by his work. In legal terms it has been said the test is whether the disease is aggravated because the effects upon Mr Curtain are made more serious “through the occurrence of symptoms which would not occur but for the employment activity.” (see Pleming v Workers’ Compensation Board of Queensland )[28].
[28]Pleming v Workers’ Compensation Board of Queensland [1996] 152 QGIG 1181 per President de Jersey.
In Craig Anthony Gibbons & Q-Comp (C/2010/24) President Hall, citing Carman v Q-Comp (2007) 186 QGIG 512 and Sutherland v Q-Comp (2009) 190 QGIG 106:, held
“Pleming v Workers’ Compensation Board of Queensland … does not decide that a worker afflicted by a degenerative back suffers an injury if the back becomes painful at work. Neither does Pleming … establish that a worker with a degenerative back suffers an ‘injury’ if the work is a cause of the onset or intensification of pain. Pleming … establishes that a worker with a degenerative back will suffer an injury where the back becomes painful or more painful and the employment is a significant cause of the onset or intensification of pain”.
Clearly, Peter Curtain did experience pain and stiffness at work and on the drive home when doing the shelving and refit work.
Was the injury one arising out of, or in the course of, employment?
As noted above at [17], in Chattin v WorkCover Queensland[29] the President of the Industrial Court of Queensland, G Williams J, followed Connolly J in Obstoj v Van de Loos[30] :
“The function of a court of law in a situation such as this is to determine whether, for whatever reason, it is more probable than not that there is a causal relationship between the accident and the plaintiff’s post-accident condition.”
[29]Chattin v WorkCover Queensland [1999] QIC 44.
[30]Obstoj v Van de Loos (W203 of 1985, 13 April 1987, unreported) cited with approval by Lee J in Pacific Coal Pty Ltd v Gaudry (CA No 268 of 1995, 20 December 1996, unreported).
The phrase “arising out of” is considered (albeit under a different section) by the President of the Industrial Court of Queensland to be:
“wider than that posited by the words ‘caused by’ and that the phrase ‘arising out of’ whilst involving some causal or consequential relationship between the employment and the injury, does not require that direct or proximate relationship would be necessary if the phrase used were ‘caused by’…”[31]:
[31] Avis v WorkCover Queensland (2000) 165 QGIG 788. See also, Lackey v WorkCover Queensland (2000) 165 QGIG 22.
In Newberry v. Suncorp Metway Insurance Limited[32], Keane JA (de Jersey CJ and Muir J agreeing) held at [27]:
“It cannot be disputed that, when s 32 of the (WCAR ACT) speaks of ‘employment’ contributing to the worker's injury, it is referring to employment as a set of circumstances, that is to the exigencies of the employment of the worker by the employer. The legislation is referring to ‘what the worker in fact does during the course of employment’. The requirement of section 32… that the employment significantly contribute to the injury is apt to require that the exigencies of the employment contribute in some significant way to the occurrence of the injury… .”
[32] Newberry v. Suncorp Metway Insurance Limited [2006] 1 Qd.R. 519 at page 529. cf Theiss Pty Ltd v Q-COMP (C/2010/11).
Again, it is clear that Peter Curtain did experience pain and stiffness at work and on the drive home when doing the shelving and refit work.
Was Mr Curtain's employment a "significant contributing factor" to the injury?
In Newberry v. Suncorp Metway Insurance Limited[33], Keane JA (de Jersey CJ and Muir J agreeing) further held at [41], [42] 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”… (which is) intended to be a requirement of connection between employment and injury additional to each of the requirements that the injury occur in the course of employment or arising out of the employment.”
[33] Newberry v. Suncorp Metway Insurance Limited [2006] 1 Qd.R. 519 at page 529. cf Theiss Pty Ltd v Q-COMP (C/2010/11).
Whilst the question of whether or not employment is a significant contributing factor to an injury is a question of fact to be determined by the Court, in reaching that determination, there is ordinarily emphasis placed on the opinions of medical specialists.
Here, put simply, given the limited scope of the history provided by Peter Curtain to Doctor Pentis and given Peter Curtain’s lack of credibility, for reasons I have already stated, I find myself unable to give the evidence by Doctor Pentis the weight it may have otherwise deserved. In the circumstances I find the opinion evidence of Dr Halliday to be more reliable and convincing than that by Dr Pentis.
It was established that certain work activities related to the refit could possibly cause Mr Curtain pain, and some no doubt did.
However, the fact that pain has been suffered arising out of employment, or in the course of employment, is not itself sufficient to establish that the employment has more probably than not been a significant contributing factor to an injury.
I have not been persuaded by the appellant that, on the balance of probabilities, any contribution made by work for Two Pine Pty Ltd to aggravation of the pre-existing back condition was anything more than negligible.
ORDER
Therefore, the appeal is dismissed and the decision by Q-Comp, made on 11 February 2010, which affirmed the insurer’s rejection of the application for compensation, is confirmed.
The appellant is to pay the costs of the hearing.
If the parties do not agree today on the items or quantum of costs they are at liberty to apply – by the respondent filing the application in this court and serving notice to the appellant of the application and a submission in writing at least 7 clear days before the matter is set for hearing the application. The appellant shall file and serve a written submission in response at least 3 clear days before the date set for hearing the application. Each submission will refer to any relevant regulation or scale which provides for the extent of costs which may be ordered in my discretion.
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