Edwards v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 175
•3 November 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Edwards | v | Simon | Blackwood | (Workers' |
Compensation Regulator) [2014] QIRC 175
| PARTIES: | Edwards, Iain | ||||||
| (appellant) | |||||||
| v | |||||||
| Simon Blackwood (Workers' Compensation Regulator) | |||||||
| (respondent) | |||||||
| CASE NO: | WC/2013/368 | ||||||
| PROCEEDING: | Appeal against decision of Regulator | ||||||
| DELIVERED ON: | 3 November 2014 | ||||||
| HEARING DATES: | 19, 20 February 2014 | ||||||
| MEMBER: | Deputy President O'Connor | ||||||
ORDERS: |
| ||||||
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF REGULATOR - MEANING OF "INJURY" - Whether the appellant's back injury constituted an "injury" within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003 - Whether arose out of, or in the course of, his employment as a food and beverage attendant at the Pullman Palm Cove Sea Temple Resort & Spa | ||||||
| Workers' Compensation and Rehabilitation Act | |||||||
| 2003, s 32 | |||||||
| CASES: | Agius v Amaca [2007] NSWDDT 13 Chattin v WorkCover Queensland (1999) 161 QGIG 531 | ||||||
| Croning v Workers' Compensation Board of | |||||||
| Queensland (1997) 156 QGIG 100 | |||||||
| Griffith v Cockatoo Dockyard Pty Ltd [2004] NSWDDT 24 Muller v Queensland Electricity Commission [2000] QCA 212 Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519 Q-COMP v Green (2008) 189 QGIG 747 | |||||||
| WorkCover Queensland v BHP (Qld) Workers' | |||||||
| Compensation Unit (2002) 170 QGIG 142 | |||||||
| APPEARANCES: | Mr C. J. Ryall, instructed by Maurice Blackburn Lawyers, for the appellant. Ms D. Callaghan for the respondent, directly | ||||||
| instructed. |
(d) It is therefore likely that it is this lifting activity or the repetition of the 1
lifting activity that caused the injury."
[5] The appellant does not rely on any particular, identified accident or incident, other than a strange sensation he says he experienced in his back after lifting tables on 11 April 2013. The appellant's case is that he suffered a disc protrusion at L5/S1 as a result of lifting during the course of his employment. His case is argued on three alternative bases:
(a)
that the injury was the result of a series of lifting events that occurred during the period from February 2013 to 11 April 2013;
(b)
that the injury was the result of a single unidentified lifting event within the period from February 2013 to 11 April 2013; and/or
(c) that the injury was the result of a particular lift on 11 April 2013.
The Act
[6] At the relevant time, s 32 of the Act provided:
"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."
The Evidence
[7] The appellant was employed by Accor Australia and New Zealand Hospitality Pty
Ltd ("Accor") which operated the Pullman Palm Cove Sea Temple Resort & Spa,
2
north of Cairns.
[8] The appellant commenced employment at the Pullman Palm Cove in November 2011 as a Food and Beverage Attendant. His duties relevantly included set-up of the breakfast buffet, clearing tables, arranging and rearranging tables and function set- up.
[9] Prior to commencing employment at the Pullman Palm Cove, the appellant served in the Royal Australian Navy for eight-and-a-half years as an aircraft technician and hydrographic survey sailor. During a period of leave from the Navy, the appellant helped to create a business called Laser Tag Cairns. He also worked for Cadbury Schweppes and Bransfords Tackle, setting up commercial displays.
[10] The appellant gave evidence that he normally undertook the open breakfast shift which would ordinarily commence at 5.30am each day.
[11] The appellant suffered an injury to his back whilst serving in the Navy which lasted a week or two. He also admitted in cross-examination to some mechanical back pain in 2006/2007. In cross-examination he accepted that he experienced a number of episodes of back pain in 2006, 2007 and 2008, for which he attended at Cairns Medical Centre.
[12] The appellant hurt his shoulder in early February 2013 as a result of "spooning" his wife. He was placed on light duties between 8 February and 10 March 2013 after suffering a shoulder injury as a consequence of playing indoor cricket. He was on leave between 20 and 28 February 2013.
[13] In evidence-in-chief and in cross-examination the appellant gave evidence that on 9
March 2013 he assisted a co-worker in the set-up for a wedding to accommodate 46
people, which included clearing and arranging furniture. When Counsel for the
respondent pointed out that the appellant was on sick leave on 9 March 2013, he
responded, "I may be mistaken, but not intentional. Sorry, I don't have a good
3
memory for dates."
[14] The appellant said that he worked continuously from the 29 March to 7 April without a break. He was asked about that period in examination-in-chief:
"And – was there any change in the condition of your back during that period?
--- It definitely worsened. That was the period where, because of the repetitive
nature of the job, having to get up early every morning after – well, I don’t know if you’ve done nightshift; when you’re working nights, you know,
you’re not always as well rested overnight before you get, you know, get up
earlier in the morning, worried about not waking up in time. So I was stressed and sore on the drive to work. The drive to work caused a lot more pain during that period. It would take me probably 15, 20 minutes, even up to half an hour for my back to warm up at all before the pain would start to dissipate.
So, you know, by the time I’d walk from my car upstairs to the back office, I
was limping and looking like a crippled old man as my [indistinct] manager suggested. And because that happened day after day for 10 days, yes, by the end of that period I was feeling very, very sore. It was continuous pain. The
pain that was in my leg was more intense. It started going from the left side –
left, lower side of my back then started across my bottom cheek and into my
thigh and, by the end of that period, it was solidly in my knee and I felt
stabbing pains in my knee during that period as well. So it made it very hard
4
to work."
[15] In cross-examination, the appellant gave evidence that the undertaking of a variety of domestic activities caused back pain of varying degrees:
"Okay. Pardon me. You told Ms Buchanan, at that stage, that you had had prior back pain and your back had actually been hurting since the beginning of
2013? --- Since – so around the start of 2013, yes.
Yes. And you had low back pain in the left side and a bit of a twinge in the
left butt cheek? ---Yes.
And this was from the beginning of the year? ---The butt cheek? Not the
beginning of the year, no.
Okay. And things that made the pain worse were sudden turning? ---Yes.
Driving your car? ---Yes.
Moving chairs and tables for functions at work? ---Yes.
Bending over to get something from the cupboard? ---Yep.
Walking up and down the stairs in your three storey house? ---Yes, big one.
And chores at home? ---Yes.
So all of these things were causing you to experience pain in your back? ---
Yes.
You also said that you were mowing the lawns, cleaning bathrooms and
toilets–
presumably, that is at home. That wasn't your job at work, was it - - -? ---No,
it wasn't my job at work.
- - - cleaning the program and the toilet? ---No, it wasn't.
So you were getting pain at home - - -? ---Yep.
- - - when you were mowing lawns - - -? ---Yes.
Cleaning the bathroom and the toilet, twisting to do dishes? ---Yep.
Putting dishes on the other side. Was that at home as well? ---Yes, it was.
Making the bed, was that at home? ---Yes, I don't make beds at work.
You didn't do making beds at – so these activities from the beginning of the
year were causing you back pain at home? ---Yes, but nothing extreme.
You also told Ray Buchanan that the pain in the back then began radiating into
the butt cheek and the leg started slowly and got more intense? ---Yep.
That it came on its own? ---Sorry, that it came - - -
That it came on on it's own?---Okay.
Did you tell her that? ---I don't remember the exact events but I can't refutethem, no.
Do you accept that that's true, that - - -? ---I can accept that.
- - - this back pain came on of its own accord? ---It came on slowly, yes.
That - - -? ---I don't – I don't know exactly what caused my back pain. I'm
5
sorry. I'm not a doctor."
[16] The appellant gave evidence that on the morning of 12 April 2013 he awoke with severe pain to such an extent that he was unable to go to work. He recalled in his evidence to the Commission that he had been involved in the set-up for the "People Ology" event which involved lifting and moving tables on the Terrace and placing excess tables into storage. He recalled that when lifting one of the tables he experienced a "popping" in his back.
"But the tables were stacked and put away, I'm lifting one of the tables, yeah,
there was a bit of a popping in my back. I don't know if that was – I'm not a
medical doctor but I can't tell you exactly what that is but, on waking the next
6
morning after lifting the tables that day, I could not get out of bed at all."
[17] The evidence of Ms Bernadette Reynolds, human resource manager with Accor, was that February was the quietest month and that March and April were quiet as well. The roster for that three month period showed relatively low room occupancy.
[18] The appellant attended on Dr Pham, general practitioner, at the Cairns Central Medical Centre on 22 April 2013. He recalled that Dr Pham told him that he would require surgery and that this was likely to cost between $7,000 and $10,000. It was at this point that Dr Pham suggested that it might be possible to make a workers' compensation claim.
[19] On 29 April 2013 the appellant contacted Ms Reynolds and left the following message:
"Hi Bernadette. It's Ian Edwards speaking from the restaurant. I was just
hoping you could give me a call back some time this morning at some stage on
0458964981. Yeah. It's in regards to possible WorkCover helping me out
7
with my injury. Okay. Thank you mate."
[20] Ms Reynolds' evidence was that the appellant told her that he had been to his doctor and had been advised to contact WorkCover about the possibly of lodging a claim for his sore back. She recalled being told that the appellant's doctor had indicated that surgery was likely to cost $10,000, which was money that the appellant didn't have, and that he didn't have private health care. Ms Reynolds recounted that the appellant had said that his doctor's concern was the length of time that it would take for the appellant to go through the public system, during which time his back would progressively get worse to a point where he wouldn't be able to work again. Her recollection of the conversation was that the appellant sounded "quite panicky and
flustered and obviously upset because of what was going on in – with this back."[8]
[8]
[21] Ms Reynolds said in her evidence to the Commission that the appellant couldn't tell her how and when the injury occurred.
[22] Ms Kaori Fujita, the appellant's immediate supervisor, gave evidence that she recalled the appellant complaining about back pain when he woke up and after driving to work for a half-hour or more.
[23] The evidence of Ms Rae Buchanan, a WorkCover claims representative, was that the
appellant had told her in a conversation on or about 6 May 2013 that he felt
"popping" and a "clunking feeling" in his back when moving furniture for a wedding
9
on the Terrace on 17 April 2013.
[24] Ms Buchanan spoke to the appellant again on 10 May 2013. In examination-in- chief, Ms Buchanan was asked:
"And did he say anything on the 10th of May about what caused that pain to
commence?---There was no specific event, but he said – he did describe
certain things at home and at work that caused the pain to increase over a
10
period of time."
[25] The appellant told Rae Buchanan that his back pain commenced in early 2013 but he could not identify a trigger.
[26] Sometime in early May 2013, the appellant prepared written notes. In his evidence he said:
"Do you remember making some handwritten notes? ---Yes, I do.
When did you start doing that? ---It would've been about May, I think. It was when I was starting to be asked for information more frequently. And because I'm not great with my memory, that's when I started writing everything down.
Do you remember drafting a timeline of injury in handwriting? ---I probably
would've done it in handwriting before putting it in print. Yes.
Okay. Do you remember when you drafted the – drafted that handwritten
note, that you wrote that, 'Back felt like it was getting better, so helped move furniture from terrace to storage for a wedding for 70 people on 17th of April. While lifting furniture, felt popping lower back.' Do you remember writing that? ---I do remember writing that and I remember writing it thinking about
the big weddings that – 30th and the 6th that – I've since found out that I –
yeah, that my memory on that event was wrong, which is why I write things
down.
And then you crossed it out, because you realised that you weren't even at
11
work on the 17th of April, didn't you? ---Correct."
[27] The evidence of Bernadette Reynolds was that the first time she became aware of a claim that the appellant had injured his back as a result of moving furniture was an email from WorkCover attaching the timeline prepared by the appellant.
Medical evidence
[28] Dr Shepherd, in his evidence before the Commission he expressed the view that the lower back pain was due to the disc fragment beginning to move into the annulus fibrosis. This persisted for a period a couple of weeks. The fragment then moved out into his epidural space. The lower back and buttock pain reduced, but was replaced by severe pain down his left leg. He went on the note: "The disc fragment sitting in the annulus would cause lower back and buttock pain. When the disc fragment moves outside the annulus and starts pressing on the nerve, you get leg pain, and that leg pain seemed to occur in mid-March."
[29] Dr Shepherd in his report of 31 May 2013 opined: "This chap has sustained a left
sided L5/S1 disc prolapse. I asked him to identify any incidents at work which may
have caused this, but he was unable to identify a particular or single incident which
caused it. I cannot identify a succinct link between his work activities and his disc
12
prolapse."
[30] In examination-in-chief, Dr Shepherd was asked:
"Based on the history that you were given at the time and the history that I've
provided today, in your opinion was this prolapsed disc caused or
contributed to by Mr Edwards' work?---I think on balance probably not.
There didn't seem to be any specific event identified in mid-March when his
leg pain began. So, you know, I think probably the back pain that he was
getting, the back pain as separate from leg pain that he was getting in
February represented probably his disc fragment starting to come out. And
then once it was sort of fully out he had leg pain and that seemed to occur in
February or March. There didn't seem to be a specific event linked to that. I
think probably it would've just come out anyway and I don't think I can link
it, I haven't got a specific event to link it to, let me put it that way. And I
13
think even if he was not working it would've probably come out anyway."
[31] Dr Campbell in his report dated 10 August 2013 made a diagnosis of a work-related left L5/S1 disc protrusion.
[32] Dr Campbell said in cross-examination:
"So I think it comes – I think it comes down, once again, to the history, and
when the symptoms exactly came on and what he was doing at the time. So I
take your point that some of those – some of those activities you listed such as
pushing a lawn mower, bending to put things in the washing machine, they're more likely to cause a back injury than the other day-to-day activities you listed, and if the pain came on whilst he was doing those symptoms, then that's going to be likely to cause the problem. If it came on whilst he was lifting and
moving tables at work, then that points to that as a cause, and – and the other
day-to-day activities have just aggravated that – those symptoms. So it really
comes down to the history [indistinct] Mr Edwards, and – and – and also, of
course, any – any documentation that comes with – with that to support his
14
statements."
[33] Dr Campbell accepted in cross-examination that he had relied on the history given to
him by the appellant and the instructions contained in the letter of Maurice
15
Blackburn Lawyers dated 9 August 2013. I accept the submission of the respondent that the letter of Maurice Blackburn to Dr Campbell was either not proven or directly contradicted by the evidence before the Commission. In particular, the Commission's attention was drawn to the following:
● In early February the number of staff undertaking breakfast duties was
reduced from five working the morning shift to two;● The appellant had additional duties to perform in the same period; ● Dr Lee prescribed strong painkillers and anti-inflammatories on 9 March
2013;● The appellant's pain was getting worse around 11 April 2013; ● The appellant completed his duties on 11 April 2013 and finished with
clearing furniture from the terrace to place into storage;● Dr Lee completed a workers' compensation medical certificate on 17
April 2013; and● The appellant was asymptomatic in relation to his back since 2007.
[34] As the evidence unfolded before the Commission, none of the matters identified above and set out in the Maurice Blackburn in their letter of 9 August 2013 are accurate.
[35] In response to a question from the bench, Dr Campbell gave the following evidence: "DEPUTY PRESIDENT: Doctor, could I just ask you one quick thing before you go. If the patient presented in February with back pain and in mid-March
with buttock pain and leg pain, would they be indicators – if I can use that word – of a disc prolapse?---Yes. I think that's a – that is a particular issue
which I see on a daily basis of - - -
Is that how it usually manifests itself if you've got an L5 S1 disc prolapse?They're the sorts of things that, I suppose, are the signposts for you to think,
'Well, maybe something's happened'?---Yes. So – so patients can present
either immediately with their sciatica or it can come on after two or three
16
weeks. So that would be a typical presentation."
[36] The evidence of Dr Campbell tends towards a view that the disc prolapse occurred sometime in March 2013. The CT scan and MRI did not assist in identifying the when the disc protrusion was likely to have occurred.
[37] The records of the Cairns Central Medical Centre reveal that the appellant attended
with back pain on 9 March 2013, 13 April 2013, 17 April 2013 and 19 April 2013.
17
Those records do not directly indicate that the consultations were as a result of any work related injury. In relation to the consultation on 13 April 2013, Dr Pham accepted that the appellant did not give a history of any work related incident on 11 April 2013 and, in particular, did not mention a "popping" in his back as a consequence of moving furniture.
[38] The evidence of Dr Stirling Lee, general practitioner, was that he had seen the
appellant on 9 March and 17 April 2013. On 9 March, Dr Lee issued a standard
medical certificate. On 17 April he ordered a CT scan. Dr Lee cannot recall being
told about any work related injury. His evidence was that if had he been told by the
appellant that his injury was work-related, he would have recorded that fact in his
clinical notes or issued a workers' compensation medical certificate. In his notes for
17 April, he recorded "long history [of] chronic back pain", which he said suggested
that the appellant had been suffering from back pain for a period of months or
18
years.
[39] The evidence of Dr Pham is of little value. In cross-examination he confirmed that
he issued a workers' compensation medical certificate on 29 April 2013 in which he
recorded the injury as L5/S1 disc prolapse which occurred on 17 April 2013.
However, in cross-examination, he accepted that the date and nature of the injury
19
recorded by him "might be a mistake". Prior to 29 April 2013 he had not recorded in his clinical notes any work-related symptoms.
[40] The respondent submits that the Commission should disregard the evidence of Dr
Pham on the basis that, rather than giving an independent medical assessment, Dr
Pham had adopted the role of an advocate for the appellant. I accept that there is
some force in the submission of the respondent, and in particular the manner in
20
which Dr Pham gave his evidence, which demonstrated a lack of objectivity.
Conclusion[41] The onus rests on the appellant to establish, in accordance with the requisite standard of proof, that the appellant's back injury arose out of, or in the course of, employment and employment was a significant contributing factor.
[42] In Chattin v WorkCover Queensland, Williams P adopted the reasoning of Connolly J in Obstoj v Van de Loos where his Honour said:
"The function of a court of law in a situation such as this is to determine
whether, for whatever reason, it is more probably than not that there is a causal
21
relationship between the accident and the plaintiff's post-accident condition."
[43] In Newberry v Suncorp Metway Insurance Ltd, Keane JA, with whom de Jersey CJ and Muir J agreed, said:
"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
22
employer) against whom the claim is made."
[44] His Honour later observed:
"[T]he 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'.
Further, there is no warrant in the language of s 32 of the WCRA for reading
the words 'if the employment is a significant contributing factor to the injury'
as lessening the stringency of the requirement that the injury 'arise out of the
employment', as was suggested in the course of argument on the appeal. It is
clear, as a matter of language, that the words 'if the employment is a
significant contributing factor to the injury' are 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 employment. It cannot, in my respectful opinion, sensibly be read as
lessening the stringency of the latter or increasing the stringency of the
23
former."
[45] The difficulty faced by the appellant is establishing a causative link between his work as a food and beverage attendant with Accor and his back injury.
[46] On the evidence before the Commission, the appellant has been unable to identify a specific date or event which caused the disc prolapse.
[47] Counsel for the appellant in his submissions to the Commission conceded that the appellant has attempted to reconstruct events that could be relevant to the course of his injury. However, in doing so, the appellant has presented evidence in relation to the events of 9 March, 11 and 17 April 2013, which have be proven to be factually wrong. In particular:
● In evidence-in-chief and in cross-examination, the appellant said that on 9 March 2013 he assisted a co-worker in the set-up for a wedding for 46 people which included clearing and arranging furniture. When Counsel for the respondent pointed out that the appellant was on sick leave on 9 March 2013 he responded: "I may be mistaken, but not intentional. 24
Sorry, I don't have a good memory for dates."
● The appellant gave evidence that on 11 April 2013 he was involved in the set-up in Temple 1 and Terrace for meeting for 6 to 12 people requiring tables to be moved (some into storage) as part of the set-up for that meeting. The evidence before the Commission contradicted this. There was no event held on the Terrace, no tables were moved by the appellant and the event was held for 3 people in the Boardroom; and ● The appellant gave further evidence that on 17 April 2013 he was involved in the set up for a wedding for 70 people. However, he did not work that day.
[48] However, it is argued by the appellant that his error in relation to what occurred on 11 April 2013 should not, of itself, negative his evidence about what occurred on this day. In reality, absent the evidence about the set-up for the People Ology event, the rest of the day was uneventful. The roster indicates that room occupancy was 33% and no other events were scheduled.
[49] The appellant did not report any injury to his employer, nor did he advise either Dr Pham or Dr Stirling that his symptoms were specifically work-related. The first record of work related symptoms was on 29 April, the same date on which Dr Pham issued a workers' compensation medical certificate.
[50] Prior to 29 April 2013, there was no contemporaneous record of a link between the work undertaken by the appellant and the onset or aggravation of symptoms.
[51] The evidence given by the appellant causes me doubt as to his reliability as a witness.
[52] I accept that Dr Pham told the appellant on 22April 2013 that he required surgery and the likely cost of that surgery. I accept also that Dr Pham told the appellant that it may be possible to make a WorkCover claim. It was following this consultation with Dr Pham that the appellant first contacted Ms Buchanan on 29 April 2013 in the hope that he could make a workers' compensation claim. He became concerned that his back condition would worsen if he could not access the private hospital system as he did not have the financial resources to do this, nor did he have private health care. In my view, it was this advice from Dr Pham which prompted the appellant to consider making a workers' compensation claim.
[53] The appellant contacted Ms Reynolds on 29 April 2013 requesting a copy of his timesheets and his roster for the purpose of seeing when he worked no doubt in an attempt to establish a link between his work and the onset of his symptoms.
[54] In Q-COMP v Green, Hall P observed that, in interpreting s 32 of the Act, "the
critical phrase is 'a significant contributing factor'. The phrase cannot be equated
with 'a significant cause'. If the phrase had that meaning, every injury falling within
25
the phrase would also arise out of the employment."
[55] Both Dr Shepherd and Dr Campbell expressed a relatively similar view that the disc prolapse was likely to have occurred in March 2013 when the buttock and leg pain became pronounced.
[56] I accept that the medical evidence supports the conclusion that the appellant had a left-sided posterior L5/S1 disc herniation with a likely S1 root compression.
[57] I accept that the report of Dr Campbell needs to be read in the context of the letter of instruction from Maurice Blackburn. As noted in paragraph [33] above, I accept the submission of the respondent that the letter of Maurice Blackburn to Dr Campbell was either not proven or directly contradicted by the evidence before the Commission. To that extent, the evidence of Dr Campbell was influenced by the instructions and history that he had received.
[58] On balance, I prefer the evidence of Dr Shepherd that the appellant's disc protrusion occurred over a period of time and was a degenerative process. I also accept his opinion that there was no succinct link between the appellant's work activities and his disc prolapse.
[59] The appellant had a history of back pain commencing first during his period of
employment with the Navy. He had episodes of back pain in 2006, 2007 and 2008.
Dr Lee recorded in his clinical notes the appellant had a long history of chronic back
26
pain.
[60] The evidence of the appellant leads me to a conclusion that he experienced back
pain of varying degrees when undertaking non-work-related activities. His evidence
relating to the period from 29 March to 7 April 2013 suggested that it was the
driving which caused his back to ache, stating that "The drive to work caused a lot
more pain during that period. It would take me probably 15, 20 minutes, even up to
27
half an hour for my back to warm up at all before the pain would start to dissipate." This evidence is inconsistent with a conclusion that work caused or aggravated his back pain. His evidence indicates that his back pain would "dissipate" at work after his back had warmed up.
[61] I accept the submission of the respondent that it is not sufficient to establish a mere
temporal relationship between an injury and being at work to satisfy the requirement
28
under s 32 of the Act of arising out of, or in the course of, employment.
[62] In Croning v Workers' Compensation Board of Queensland, de Jersey P held that the
29
employment needs to be the "real effective cause". Whilst there may be a number
of contributing factors causing the appellant's back pain, for the purposes of s 32(1),
the Act speaks of employment being a significant contributing factor to the injury.
30
Significant is used in the sense of "important" or "of consequence".
[63] Having considered the totality of the evidence before the Commission, I am not satisfied that the appellant has established a causal relationship between his employment with Accor and his back condition.
[64] I am of the view that the appellant has failed to establish that he has suffered an "injury" within the meaning of that term in s 32 of the Act. Accordingly, I would dismiss the appeal and affirm the decision of the respondent.
Orders
[65] I make the following orders:
1. The appeal is dismissed;
2. The decision of the respondent dated 16 October 2013 is affirmed; and
3. The appellant is to 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.
Decision
[1] This is an appeal by Iain Edwards ("the appellant") against a review decision of the Workers' Compensation Regulator ("the respondent") dated 16 October 2013. That decision affirmed WorkCover Queensland's decision to reject the appellant's application for compensation, finding that he had not sustained an "injury" within the meaning of that term in s 32 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act").
The issue for determination
[2] There is no dispute between the parties that, at the material time, the appellant:
(a) was a "worker" within the meaning of s 11 of the Act; and (b) suffered a medical condition of his lumbar spine, namely, a left sided posterior L5/S1 disc herniation with likely S1 root compression.
[3] The issue for determination by the Commission, therefore, is whether the appellant's back injury is an "injury" within the meaning of that term in s 32 of the Act. In particular, that requires consideration of whether his back injury arose out of, or in course of, his employment in the period between February 2013 and 29 April 2013 and, if so, whether his employment was a significant contributing factor.
[4] The appellant submitted that:
"(a) The appellant was lifting tables on the terrace in the relevant period during which he developed first symptoms of mechanical back pain, then pain radiating into his legs and finally severe sciatica consistent as a result of either a progression of or series changes in his injured disc, or a discrete injury to his disc during the relevant chronology that only progressively resulted in increasing symptoms;
(b)
The lifting activity was one that was performed in an unsafe way that was likely to cause injury;
(c)
The respondent, consistent with the weight of the evidence, does not submit the injury was caused by either constitutional changes unrelated to work or an event or activity outside work; and
1
Submissions of the appellant, p 3.
2
Exhibit 1.
3
T1-27.
4
T1-23.
5
T1-47–8.
6
T1-25.
7
Exhibit 16; T1-64.
T1-65.
9
Exhibit 18, p 12; T2-3.
10
T2-4.
11
T1-53–4.
12
Exhibit 19, p 3.
13
T2-14.
14
T2-40.
15
Exhibit 20.
16
T2-43.
17
Exhibit 12.
18
Exhibit 12, p 3.
19
T2-27.
20
See Agius v Amaca [2007] NSWDDT 13 [15];Griffith v Cockatoo Dockyard Pty Ltd [2004] NSWDDT 24
[22]; Muller v Queensland Electricity Commission [2000] QCA 212 [5] (Pincus JA).
21 (1999) 161 QGIG 531, 532, quoting Obstoj v Van de Loos (Unreported, Supreme Court of Queensland,
Connolly J, 13 April 1987).
22
[2006] 1 Qd R 519, 529.
23
Ibid, 532–3.
24
T1-27.
25
(2008) 189 QGIG 747, 750.
26
Exhibit 12, p 3.
27
T1-23.
28
WorkCover Queensland v BHP (Qld) Workers' Compensation Unit (2002) 170 QGIG 142.
29
(1997) 156 QGIG 100, 101.
30
Qantas Airways v Q-Comp (2009) 191 QGIG 115, 119.
0
3
0