Jennings v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 201
•3 December 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Jennings v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 201 |
PARTIES: | Jennings, Luke v Simon Blackwood (Worker's Compensation Regulator) |
CASE NO: | WC/2013/328 |
PROCEEDING: | Appeal against the Review Unit of the Worker's Compensation Regulator |
DELIVERED ON: | 3 December 2014 |
HEARING DATES: | 23 and 24 June 2014 |
MEMBER: | Industrial Commissioner Black |
ORDERS : | 1. The Appeal is allowed. 2. The decision of the regulator dated 11 September 2013 is set aside and substituted with a decision that the appellant's claim is one for acceptance. 3. The matter of costs is reserved. |
| CATCHWORDS: | Whether employment a significant contributing factor to the injury; where employee did not seek medical treatment on a contemporaneous basis; where an intervening event occurred between the date of the work related injury and the date of first attendance on a medical practitioner; where credit was an issue. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 s32 (1), s550 Carman v Q-Comp (2007) 186 QGIG 512 |
| APPEARANCES: | Mr A. Arnold, Counsel, instructed by Bressington & Partners Solicitors, the Appellant Mr N. Jarro, Counsel, directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. |
Decision
Introduction
Luke Jennings appeals a decision of the Review Unit of the Workers' Compensation Regulator ("the regulator") to reject his application for workers' compensation. Jennings originally lodged his application for compensation with WorkCover Queensland on 23 April 2013. On his claim form he referred to the injury as a lower back injury sustained whilst lifting turf onto a pallet at work. At the time, Jennings was employed as a labourer with Turfgrass (Central Queensland) Pty Ltd (Turfgrass). As far as can be determined from the medical records, it appeared that Dr Michael Donohue issued Jennings with a workers compensation medical certificate on 30 April 2013.
WorkCover rejected Jennings's application for workers' compensation on 28 May 2013. Subsequently Jennings asked the regulator to review the decision, however on 11 September 2013 the regulator confirmed WorkCover's decision to reject the claim for compensation. Jennings now appeals this decision to the Commission pursuant to s 550 of the Worker's Compensation and Rehabilitation Act 2003 ("the Act").
Issue for Determination
Pursuant to section 32(1) of the Act, the issue for determination in this appeal is whether Jennings suffered an injury arising out of, or in the course of, his employment if his employment is a significant contributing factor.
Nature of the Appeal
The appeal to the Commission is by way of a hearing de novo. To succeed with his appeal, Jennings must establish on the balance of probabilities that he sustained an injury to his lower back while lifting pieces of turf at work some time in the week ending 5 September 2012.
Exhibit 1
The following documents were tendered by the regulator and admitted into the evidence as Exhibit 1:
· WorkCover Queensland Application for Compensation dated 23 April 2013;
· WorkCover Queensland Reasons for Decision dated 28 May 2013;
· Q-COMP Review Unit Decision dated 11 September 2013.
Amendment to Claim
In his WorkCover claim lodged on 23 March 2013, Jennings had nominated 8 August 2012 as the date on which he sustained his injury at work. However at the start of the proceedings Jennings was granted leave to amend his claim to reflect that he had injured himself at work sometime in his employer's pay week ending 5 September 2012. A review of the pay records in the evidence as Exhibit 5 discloses that between 29 August 2012 and 4 September 2012 Jennings worked a total of 14 hours for Turfgrass. The pay records did not disclose however how many hours Jennings had worked on any particular day. Leave to amend does not remove from consideration in the decision making process the fact that Jennings has not been consistent in nominating the date of injury or has been unable to nominate a specific day of injury.
Evidence
During the course of the proceedings evidence was given by five witnesses. The witnesses for the appellant were as follows:
· Luke Jennings (appellant)
· Glen Rohl (appellant's father)
· Dr Allan Cook
The witnesses for the Regulator were as follows:
· Mitch Porter (Area Manager)
· Aaron Rose (co-worker)
Background
Jennings had been employed by Turfgrass on a casual basis for approximately two years. While he worked on a regular basis, the number of hours per week that he worked varied. On some weeks he was required to work for up to 50 or 60 hours. Jennings worked in the harvesting section of the business. His job involved some general laboring functions but also work on a harvesting machine which harvested sections of turf and fed them onto a conveyor which moved the turf upward to a platform where Jennings and a co-worker, Aaron Rose, lifted, folded and stacked the pieces of turf on pallets. Each piece of turf weighed about 5kg and on average about 30 pallets a day were filled. The harvesting machine was towed by a tractor driven by Danny Warcon. Both Rose and Warcon were full time employees of Turfgrass.
Prior to his employment with Turfgrass, Jennings had typically been employed in unskilled or semi-skilled manual work. His employment history is set out in Exhibit 2. It included work as a deck hand on a fishing boat, roof tiling, painting, and work associated with moving or fitting truck tyres.
Medical Evidence
Evidence in the proceedings was given by Dr Alan Cook, a specialist orthopaedic consultant. A report prepared by Dr Cook is in the evidence as Exhibit 7. The relevant medical records of the Yeppoon and Zilzie Family Practice were admitted into the evidence as Exhibit 8, while the relevant records of the Imbina Medical Centre were marked Exhibit 9. The records were tendered by consent in circumstances where none of the general practitioners who treated Jennings were called to give evidence in the proceedings.
Jennings described his condition following the workplace event in the following terms at (T1-21):
"Right. Okay. Now, just if you can plainly explain to the Commissioner, please, in that time that you had off, what the pain was like in your back?---Pretty full-on. I – I couldn't really lay down in me bed properly, I - I couldn't walk; I had to use a walking stick to get around. I was having spasms - attacks in me back where it'd make me basically collapse onto the ground and sob like a - like a little boy. I was that bad I - I just couldn't stand. I couldn't do nothing."
Despite injuring himself and suffering the condition described in the preceding paragraph, Jennings did not seek medical treatment until 25 October 2012 when he attended on Dr Moore at the Imbina Medical Centre. Rohl explained how the appointment with Dr Moore came about at T1-52:
" … we made the appointment because he had been off work
for a while and his back wasn't getting any better, and he had - had been doing a little bit of work in the yard, but then he couldn't even do that properly, and it was getting worse, so I decided to take him to see Sandy and see if she - she could get something for the pain for it."
Jennings said that he did not seek medical treatment immediately after his injury was sustained because he thought it may have only been a muscle strain. He said that he took a month off work after which he attempted to resume work but found that he could not perform the work. He said that he was experiencing back spasms and his legs were giving way.
A review of the clinical records of Dr Moore (Exhibit 9) discloses that the following entry was made in respect to the 25 October 2012 consultation:
"Long term history of back pain and has been digging in the garden and lifted a few bricks and has pain +++ at about T10."
Dr Moore's clinical notes included a copy of the radiology report arising from a CT scan taken on the same day. The CT report included a history of “sudden severe pain with swelling around T10". Presumably this refers to the pain experienced by Jennings when gardening.
Given that Dr Moore did not give evidence in the proceedings, the interpretation or meaning to be attributed to the entry remains speculative in part. Both Jennings and his father (Glen Rohl) attended the consultation and both provided a version of the history given to Dr Moore.
It was Rohl's evidence at T1-52 that Dr Moore was told that Jennings "… recently had an accident at work and it hasn't gotten any better over the last few weeks…". Rohl also said at T1-55 that he recalled telling Dr Moore that Jennings had been helping his mother in the garden and had been lifting some rocks. Jennings said that he told Dr Moore that he first injured himself at work and then did "exactly the same thing as when I was helping mum in the garden" (T1-35). Jennings's evidence about the incident in the garden was recorded at T1-22:
"Okay. Can you tell the Commission, please, how you come to see Dr Moore?---I was in the garden helping me mum. She's - we were cutting the grass around a couple of them little house bricks, real tiny ones. And I was lifting them up out of the way to get them out of the way while she was cutting the grass and I heard me back again do them three big pops and that was the end of me, so I went straight up to Sandy Moore."
Dr Cook did not examine Jennings until 13 February 2014, some 18 months after the workplace incident. Based on the history given to him by Jennings, Dr Cook concluded that the mechanism of injury described by Jennings was consistent with his diagnosis of:
"1. A generalised musculoligamentous injury and /or soft tissue injury to the lower thoracic and whole of lumbar spine including the small right side L5-S1 disc prominence.
2. Possible injury to one or other of both sacroiliac joints.
3. Aggravation to pre-existing degenerative changes in the lower thoracic or lumbar spine if any." (Page 7 of Exhibit 7)
Dr Cook's diagnosis was given in a context where Jennings said that while he had hurt his back in 2001 the problem had settled and that he came good. He was advised by Jennings that he injured his back at work on 8 August 2012. While Dr Cook did not include any mention in his report about Jennings failure to contemporaneously report his injury to a medical practitioner, he did have access to the record of Jennings's consultation with Dr Moore on 25 October 2012 and presumably was aware that Jennings did not seek treatment for his back condition until 25 October 2012.
The other matter of relevance not canvassed in Dr Cook's report was the matter arising from the entry in Dr Moore's notes to the effect that Jennings had injured his back while gardening. At T1-44 Dr Cook said that he was not informed about the incident by Jennings when he examined him on 13 February 2014. While there is no reference to the incident in his report, Dr Cook accepted in re-examination however that at the time of writing of his report he had available to him a copy of the medical records of the Imbina Medical Centre from 25 October 2012 to 21 August 2013.
Dr Cooke accepted that his report was based on the history provided to him by Jennings. He agreed that he would have expected Jennings to seek medical treatment earlier than 25 October 2013. His evidence about the matter was recorded at T1-46:
"Would you expect someone with a significant condition to present prior to the 25th of October 2012 for the injury that you've diagnosed?---I certainly would have expected him to attend sooner, but when I was seeing him, he advised that he thought that he had simply pulled some muscles in his back and thought that if he rested for a time they would heal up and settle down and they wouldn't be a problem.
Okay. Look, his evidence was before that the pain was full-on, he couldn't walk, he had back spasms and he cried like a little boy?---Well, most of those things that you describe vary enormously from person to person. It's a person's ability to be able to deal with pain, cope with it, and it varies enormously how they react to it."
A matter in contention in the evidence related to whether Jennings had suffered from long term back pain. While two 2001 entries in the notes of the Yeppoon and Zilzie Family Practice (Exhibit 8) referred to back conditions, the matter was not raised again in the medical records until 25 October 2012 when, according to the entry in Dr Moore's notes (Exhibit 9), Jennings said that he had a "long term history of back pain".
Despite this entry it was Jennings's evidence that he did not have a history of back pain other than that related to the roof fall in 2001. This is reflected in the history he provided to Dr Cook which is recorded at page 4 of Exhibit 7 in the following terms:
"….Jennings advised that he fell off a roof in November 2001 and that he had X-rays done at that time and that although he had some back pain this settled and came good and that he had on further problems with his mid or lower back after this and prior to 08.08.2012."
A review of the records of the Yeppoon and Zilzie Family Practice discloses that Jennings first reported back pain in 2001. The records included an entry dated 23 July 2001 recording a request for diagnostic imaging including an X-ray of the lumbo-sacral spine and the thoracic spine. However no reason is set out and no patient history recorded. The following consultation on 22 November 2001 was more explicit in that it included a record of a fall from a roof, diagnosed back pain, and requested an X-ray of the lumbar spine. Any further reference to back pain after this entry does not appear until 11 February 2013. The entry for this consultation and the numerous following consultation deal with Jennings continuing back pain and follow Jennings prior consultations with Dr Moore in the last three months of 2012.
There was also some inconclusive discussion in the evidence about Jennings being diagnosed with spina bifida as a child. In giving evidence in respect to the 23 July 2001 consultation, Jennings said at T1-28 that he was not sure why an X-ray of his spine was taken but agreed that he had previous X-rays taken as a child in circumstances where his doctor thought that he may have had a minor case of spina bifida. He said however that there was no confirmation of such a condition. None of the medical evidence produced in the proceedings supported a conclusion that, in any relevant sense, Jennings had suffered, or was suffering from, spina bifida.
Workplace Injury
Jennings had been employed by Turfgrass for approximately two years. Sometime around 5 September 2012 Jennings's employment with Turfgrass ended. The reason for his cessation of work is significant. Jennings said that he stopped work because he had injured his back while lifting pieces of turf. Witness evidence relevant to the matter was given by Jennings, his co-worker Aaron Rose and his supervisor, Mitch Porter.
Jennings said that on the day that he was injured he commenced work around 7.30am and had worked for about two to three hours before he experienced the pain that forced him to stop work. Jennings described how he injured himself to a WorkCover representative shortly after he lodged his claim for compensation (T1-30):
"Okay. And you gave - can I suggest to you that you gave the following information: that is, on 8 August 2012 you were lifting turf and putting it on the pallet when you felt your back go pop like a muscle popping out of place. When you went to grab the next piece of turf, you couldn't hold it and basically dropped the turf. Do you recall saying that?---Yes. I - I do recall saying that."
Porter said that he did not recall Jennings's last day at work and said that he did not know why Jennings had ceased work with Turfgrass. He was unable to confirm Jennings's evidence that suggested that Porter was called over to the harvesting machine when Jennings injured himself. While Porter did not recall this particular event he said that on a few other occasions he had gone over to the harvesting machine and relieved Jennings because Jennings had a sore back.
At the time that Jennings ended his employment, Rose was living with Jennings in Jennings's parents' house. Rose said that he lived with Jennings "up to Father's Day" (Sunday 2 September 2012). Rose said that Jennings complained of a back injury "nearly everyday". Rose said that Jennings first complained of a back injury "towards the end" of his period of employment with Turfgrass. Jennings complained every day before or after work.
Rose said that he was working with Jennings on the back of the harvester on the day that he stopped work. He said that Jennings stopped work because his back was sore. He agreed that Jennings said words to the effect that he could not work any longer. When this occurred Rose agreed that he informed Porter of the situation and that Porter came across to the harvesting machine. Rose said that he thought Jennings indicated that he wanted to be re-allocated to light duties. Rose's evidence at T2-20 is set out below:
"It’s long ago. And so can you remember it was a – I mean, the situation – just do your best with your memory, but you just stop – you had to pull up the tractor, didn’t you? You had to stop the tractor. He complained. He said, "Oh, that's it. I can’t go any further"; that's right?---Yeah, that would have happened."
Rose said that he did not recall any later occasion when Jennings may have returned to work. He accepted that after the date of the injury he would have seen Jennings with a sore back. He also agreed that he informed Jennings on behalf of Porter that he would not be offered any further work. He gave the following evidence at T2-21:
"….your evidence is that my client went home after – after
stopping work on the harvester; that's right, and he talked to you about the events of the day that afternoon when you got back from work?---He may have.
May have. And he – you told him that Mitch told you that his job was at an end. Not to come back?---I could have done that too."
It was Rohl's evidence at T1-51 that after the workplace event Jennings had a few weeks off work. He said that Jennings’s back "was just buggered" and that he could not do any lifting. He said that Jennings was very short-tempered because "he was in pain – extreme pain all the time" and that he was "hobbling around like an old man".
Jennings said that roughly a month after he finished work, he attempted to go back to work. He said that he was starting to walk without the assistance of a walking stick and he thought that he might "give it a go and see how I go". He said that he discussed the matter with Rose who was still living with him at the time. Jennings said that Rose drove him to work where he started driving the tractor, however he only lasted for about two hours and could not continue working.
The evidence does not support Jennings’s claim that he tried to return to work. In the first instance Rose said that he left the Jennings family home on Father's Day in which case he would not have been living with Jennings at the time that Jennings said that he tried to return to work. Further, neither Rose nor Porter accepted in their evidence that Jennings had attempted to resume work. Finally no pay record was tendered supporting the claim that Jennings had worked for two hours on a day subsequent to 5 September 2012.
Regulator's Case
The regulator advanced the following reasons in support of its position that Jennings did not sustain an injury pursuant to section 32(1) of the act:
(i) There was no contemporaneous reporting of the injury by Jennings to a GP. Despite the pain described by Jennings he did not visit a doctor until seven weeks after the event;
(ii) The application for compensation was lodged 10 months after the alleged workplace event;
(iii) Despite completing an incident report form in respect to a previous incident, Jennings did not complete a form in respect to the claimed injury in September 2012 and his employer did not become aware of the claimed injury until April 2013 when Jennings lodged his claim for compensation;
(iv) The notes of the consultation on 25 October 2012 disclose that Jennings suffered a back injury as a result of digging in the garden and lifting some bricks – not as a result of an injury at work;
(v) The appellant cannot demonstrate the necessary causal relationship between the claimed incident and the post-accident condition. In circumstances where there was a seven week interval between the last day of work and the attendance on Dr Moore, employment cannot be viewed as a significant cause of the onset or intensification of pain. The injury treated by Dr Moore could have been a different injury than that claimed to occur in early September because of the intervening event (gardening). Work was not nominated as a cause of injury in any of the medical notes of Jennings's consultations between 25 October 2012 and 23 April 2013 when he filed his application for compensation. It followed that Jennings's personal injury did not occur in the course of employment;
(vi) Employment did not significantly contribute to the claimed injury. Jennings had a long-standing, chronic back condition tracing back to 2001 when X-rays of his back were required and when he fell from a roof. The true nature of Jennings's spinal condition is due to a long standing, chronic back condition. None of the medical records included reference to a work related event;
(vii) Findings of credit adverse to Jennings can be sustained. He was an unreliable historian who had a material interest in the outcome of the appeal;
(viii) An adverse inference should be drawn arising from the failure of the appellant to call Mrs Jennings. While Jennings's father was called to give evidence, his mother was not called despite her closer connection with relevant events. Further, despite the fact that Jennings was working with two other employees on the day in question, these employees (Warcon and Rose) were not called by the appellant to give evidence. Jennings did not call any independent witness to support his contention that he injured himself at work in the manner claimed;
(ix) The report provided by Dr Cooke is heavily reliant on the history given to him by Jennings and his evidence should be construed accordingly.
The regulator relied on the decision in Carman v Q-COMP[1] which it said establishes that Pleming v Workers Compensation Board of Queensland[2] is authority for the following propositions:
(i) A conclusion that a work-related injury has been suffered is not necessarily open simply because a worker afflicted by a degenerative back experiences back pain at work;
(ii) A conclusion that a work-related injury has been suffered is not necessarily open in circumstances where work is a cause of the onset or intensification of pain;
(iii) A worker with a degenerative back does suffer a work related injury when the back becomes painful or more painful and the employment is a significant cause of the onset or intensification of pain.
[1] Carman v Q-Comp (2007) 186 QGIG 512
[2] Pleming v Workers Compensation Board of Queensland (1996) 152 QGIG 1181.
Appellant's Case
The appellant argued that the following factors sustain the appeal:
(i) Jennings worked on a regular and systematic basis for his employer for two years on what could be termed strenuous or arduous duties;
(ii) Jennings's employment came to end when he injured himself at work. No reason other than injury was put forward explaining the cessation of employment;
(iii) Jennings's co-worker Rose who was working with Jennings on the day that he was injured agreed that Jennings stopped work because of a sore back or back pain;
(iv) The medical records of the Imbil Medical Centre and the Yeppoon and Zilzie medical practice establish that subsequent to Jennings's work injury he has experienced serious and ongoing back pain which has required extensive treatment;
(v) Jennings has not worked again after the workplace injury;
(vi) The medical evidence of Dr Cooke established that the mechanism of injury was consistent with his diagnosis. Dr Cooke was the only medical practitioner called to give evidence.
Findings of Fact
The determination of the appeal is to be made in the context of the following factual findings:
(i) Despite a childhood consideration of spina bifida and a fall in 2001, the evidence did not support a finding that Jennings suffered from chronic or long standing back pain. There was no evidence of any medical treatment for a back condition subsequent to the roof fall in 2001 and before the work injury in September 2012. Further, during this period Jennings typically worked in physically demanding activities;
(ii) Jennings’s back condition had manifested itself towards the end of his period of employment with Turfgrass and prior to the date of injury. It appeared that his back condition deteriorated to a point where Jennings could no longer continue working;
(iii) Jennings injured himself at work around the time that he claimed and in the manner that he claimed. The injury was sustained while he was working for Turfgrass in the week ending 5 September 2012;
(iv) Jennings experienced pain and discomfort after the injury and was limited in terms of physical activity;
(v) The injury precluded Jennings from continuing to work for Turfgrass;
(vi) Jennings did not seek any medical treatment until 25 October 2012;
(vii) Jennings was sufficiently disabled by the work related injury that he was unable to work after the injury;
(viii) Jennings injured his back while gardening on or about 25 October 2012 arising from which he immediately sought medical attention. Jennings said that the symptoms experienced were the same as what he experience when he injured his back at work;
(ix) The medical record of the consultation with Dr Moore did not make any connection between the injury and Jennings’s employment, but it was the evidence of Rohl and Jennings that they told Dr Moore about the injury at work in September;
(x) Jennings has received extensive treatment for his back condition since 25 October 2012.
Failure to nominate specific date for injury
Jennings was criticised by the regulator for failing to nominate a specific day of injury. The regulator submitted that the proposition that the injury occurred sometime in a period of a week was too vague, and that the inconsistency in nominating dates of injury mitigated against Jennings's prospects.
Jennings said in his WorkCover application that his injury occurred on 8 August 2012. However when the proceedings commenced on 23 June 2014, Jennings said that the injury occurred late August or early September 2012. Jennings explained that he had corrected the date of injury because he knew that the injury was sustained on his last day at work. However he was not able to confirm this date until he received a copy of the time and wages records from his former employer. It was asserted that had the employer been able, or prepared, to provide complete pay and attendance records it would have been relatively simple to specify the actual date of injury as the last day upon which any work was performed. However the pay records provided only displayed weekly totals and did not disclose the number hours worked each day.
I accept the explanations provided in this regard. First the WorkCover claim was not completed until April 23 2013, some nine months after the event and as such I acknowledge that the identification of the last day at work may have involved some guess work. Secondly, the change of date was proposed only after the employer's time and wages records were discovered and showed that Jennings last worked for Turfgrass in the pay week ending 5 September 2012. In these circumstances it was reasonable that Jennings should make the correction. Further I accept that had the employer provided complete time and wages records it would have been possible for Jennings to nominate the specific date of injury.
Notification of Injury
Porter claimed that he did know that Jennings had injured himself not did he know why Jennings's employment had ended. While it can be accepted that the employer did not become aware that Jennings intended to lodge a workers compensation claim until late April 2013 when Jennings lodged his claim for compensation, the evidence does not support Porter’s view.
While Porter was extremely vague in his recollections of how Jennings's employment came to an end, Rose essentially confirmed Jennings's account that he had stopped work because of an injured back or a back condition. Porter's vagueness or lack of recall cannot be relied on to substantiate a finding that there was no evidence that Jennings had injured himself at work. Rose was a full time employee for a small employer. It is reasonable to assume that if Rose knew that Jennings had stopped work because of a back condition, that information would have been shared with Porter who had responsibility for the allocation of labour.
The regulator drew attention to the fact that despite completing an incident report form in respect to a previous injury at work, Jennings did not complete a form in respect to the claimed injury in September 2012. In my view however this failure may be explained by the fact that Jennings was told on the day of his claimed injury that his services were no longer required. It is not surprising in these circumstances that Jennings might have overlooked or ignored the procedure.
Credit
From the regulator's perspective considerations of credit arose from inconsistencies in Jennings's account of when the injury occurred; inconsistencies in Jennings's description of his condition after his injury at work; the "self-serving" nature of his evidence about what he told Dr Moore on 25 October 2012 and the inconsistency in this account and the medical record; the conflict in the evidence around Jennings's claim that he attempted to return to work; and the vagueness in Jennings's explanations when giving his evidence.
In consideration of these matters I note firstly that I have accepted Jennings's explanation about the change in date of injury and no issue of credit arises here. I am unable to reconcile the difference in the evidence about whether Jennings attempted to return to work. While Rose and Porter denied any recollection of this development, very little turns on the matter and it does not warrant further consideration. I accept that Jennings's evidence appeared unnecessarily vague in parts, however the sections of the evidence in question were not determinative. Further it was possible that in some instances the vagueness may have been explained by Jennings's unsophisticated nature and the fact that his memory may have been diluted by the medications he had been taking for back pain.
There did appear to be inconsistency in Jennings's evidence about his condition between 5 September 2012 and 25 October 2012. In one instance he said that his pain was full-on, that he had to use a walking stick to get around, that he was having spasm attacks which would cause him to collapse to the ground and sob like a little boy. On the other hand he agreed that he told WorkCover that he thought the injury was only a muscle strain. I am reluctant to impose an intuitive view on this evidence. While Jennings's evidence appeared to suggest contradictory levels of pain and discomfort, any determination in the area would desirably be made with the benefit of medical evidence. Further, given that the injury relates to a back condition, it may be that there was significant variation in Jennings's level of pain or discomfort and that severe pain may have been intermittent. Further, given that Jennings had been experiencing problems with his back for some time he may have presumed that, despite the disablement, the condition may get better over time. In the absence of medical evidence I am not prepared to make a finding of credit adverse to Jennings in this area.
I accept that the regulator was entitled to be cynical about the evidence of Jennings and Rohl in respect to the visit to Dr Moore on 25 October 2012. Their evidence conveniently linking the visit with the work related injury differed from the medical record and may have been inconsistent with Jennings's failure to visit a doctor immediately after his injury at work or immediately after his failed attempt to resume work. However no evidence was led contradicting Jennings's version of events and mere cynicism does not found a rational conclusion that the evidence given was not true. Dr Moore was not called to give evidence about the content of the medical record of Jennings's consultation with her. In the circumstances it could be speculated that she only recorded the immediate cause of Jennings's visit and not any observation by Jennings to the effect that he had experienced the same problem at a prior time.
Having regard to all the evidence I am not prepared to enter a finding of credit adverse to Jennings.
Dr Cook's Report
I accept that the weight to be attached to Dr Cook's evidence is limited by a number of factors. He did not examine Jennings until 18 months after his workplace injury; he accepted that his report findings relied on the history provided to him by Jennings; and his report did not address in any significant way Jennings's failure to seek medical attention for seven weeks after the date of injury and did not discuss the significance of the injury sustained by Jennings while gardening on or about 25 October 2012. However while these matters were not canvassed in the written report, Dr Cook was asked to deal with them when he gave evidence in the proceedings.
Notwithstanding these considerations, Dr Cook was able to provide testimony in respect to the medical imaging which resulted from a CT scan commissioned by Dr Moore in October 2012. Dr Cook reviewed the scan prior to arriving at a diagnosis about the nature and extent of Jennings's back injury. While Dr Cook did not distinguish between the work related event and the gardening event, and while his evidence did not provide any forensic level of support for Jennings's appeal, he did not introduce any medical barrier to Jennings’s version of his circumstances between the date of the work related injury and 25 October 2012.
Adverse Inferences
While Jennings's father was called to give evidence, his mother was not called despite her closer connection with relevant events. The closer connection related to the day of injury when Jennings's mother was called to give Jennings a lift home; Jennings's condition while he was resting at home after the injury; and Jennings's injury while gardening. In circumstances where Rose gave supporting evidence about the injury at work and both Jennings and Jennings's father gave evidence about his post-injury condition, and about the gardening incident, I am not sure that evidence from Jennings's mother would have assisted in any significant way and I am not disposed to find that any adverse inference should be drawn arising from the failure to call Mrs Jennings.
The regulator also claimed that Jennings should have called Warcon and Rose to give evidence. This proposition carries some weight. Absent Rose, Jennings's case would have been lacking any independent witness to support his contention that he injured himself at work in the manner claimed. Indeed had Rose not given evidence for the regulator, Jennings prospects of success in the appeal would have been significantly diminished. In the end result, Rose's evidence tended to obviate the need for Warcon to be called, although it was also open to the regulator to call Warcon. In all the circumstances of the case I am not inclined to make inferences adverse to Jennings arising from the failure to call either Warcon or Rose to give evidence.
Whether Employment a Significant Contributing Factor
The determination in this regard arises from a consideration of whether the following factors can sustain a conclusion that Jennings was suffering from a long term, chronic back condition that was the cause of Jennings's failure to continue at work and was the cause of his injury while gardening:
(i) Did Jennings suffer from spina bifida?
(ii) What was the long term effects of the roof fall in 2001?
(iii) Neither the consultation notes of Dr Moore nor the related CT report connected Jennings's injury with his employment at Turfgrass;
The regulator made the following submission on the subject at paragraph 37 of their final submissions:
"Employment cannot be viewed as a significant cause of the onset or intensification of pain and the Commission ought not be satisfied that employment was a significant contributing factor because the Appellant is unable to demonstrate that what he did in the course of his duties contributed in some significant way to the occurrence of the injury. At most, Turfgrass Pty Ltd may have been the mere setting for an injury to occur, but nothing more. At most, the work performed might have been a contributing factor but it cannot be determined to be a significant contributing factor."
While the regulator drew attention to a possibility that Jennings may have been treated for spina bifida as a child and had suffered a back injury in 2001 following a fall from a roof, there is no other evidence available to contradict Jennings's evidence that the 2001 injury settled and resolved and that he had not suffered any significant back condition prior to the workplace event in September 2012. There is insufficient evidence to support a finding that Jennings had suffered from long standing or chronic back pain preceding the September 2012 event. There is no evidence indicating that Jennings either sought or was given medical treatment for a back condition between 2001 and the date of his injury at work in September 2012. As such it is not open for me to find that the injury Jennings sustained in September 2012 may have been caused by a degenerative back condition or by reference to past incidents.
That Jennings was experiencing difficulties with his back during the course of his employment with Turfgrass was confirmed by both Porter and Rose. Rose said that towards the end of his employment Jennings complained every day about his back, while Porter said that on a number of occasions he had to relieve Jennings from his work on the turf harvester because of his back condition. Rose supported Jennings's evidence that his back injury effectively ended his employment with Turfgrass. The evidence supports a finding that employment was a significant contributing factor to the injury sustained by Jennings in late August or early September, 2012.
No contemporaneous reporting of injury
On the facts and circumstances of this case neither Jennings's failure to report his injury to a medical practitioner on a timely basis nor the delay in lodging his workers’ compensation claim preclude a finding that Jennings injured himself at work in the week ending 5 September 2012.
The fact that Jennings did not attend on a medical practitioner until 25 October 2012 however causes some difficulty in that the nature and extent of his work related injury was not medically assessed until seven weeks after the event. Also a complication arises in that Jennings suffered a further injury to his back in the intervening period. This development requires a determination about whether the medical assessment of Jennings's injury on 25 October 2012 constituted an assessment of the injury suffered by Jennings at work or whether it constituted an assessment of a separate and unrelated injury.
It was Jennings's evidence that when he injured himself while gardening, he experienced the same symptoms that he experienced after the work related injury. That is, that the onset of pain was a result of the same condition or injury that he sustained at work. In the absence of any medical evidence around the subject I am not inclined to arrive at conclusions in respect to whether the injuries should be distinguished or to the effect that Jennings’s attendance on Dr Moore was in respect to a different and unrelated injury to that he sustained at work. From a common sense perspective I am disposed to accept the explanation advanced by Dr Cook in relation to Jennings's circumstances.
Dr Cook said that while he would have expected Jennings to seek medical treatment for his back sooner than what he did, that a person’s ability to cope with pain and how they react to pain varies enormously from person to person. He said that Jennings informed him that he thought that he had "simply pulled some muscles in his back and thought that if he rested for a time they would heal up and settle down and they wouldn't be a problem" (T1-46). While Dr Cook's report did not include any reference to the gardening incident, in his oral testimony Dr Cook said that the new information did not necessarily change the opinion given in his report. He opined that it was possible that Jennings may have injured his lower back at work and then, after resting for a few days or a week or two, he found that his condition improved to the point where he attempted to do some gardening work, arising from which he suffered an onset of pain.
It seems to me that, in circumstances where there is no abundance of evidence, a balance of probabilities finding along the lines of the opinion offered by Dr Cook is warranted. In this regard I rely on the fact that Jennings had been experiencing back pain towards the end of his employment with Turfgrass, that he had been managing this pain or discomfort without medical assistance, that while his condition deteriorated to the extent that he could not continue to work he may still have been inclined to treat the condition by resting and avoiding physical activity, and that it was only when he suffered a recurrence of pain while gardening that he came to a realisation that medical treatment was necessary.
Conclusion
The evidence supports a balance of probabilities finding to the following effect. Jennings injured himself at work and as a result of the injury he was unable to continue working with his employer, Turfgrass. Further, following the injury at work, Jennings thought that the injury would resolve itself over time and without treatment by a medical practitioner. It followed that Jennings was only motivated to seek medical treatment when he in effect re-injured himself while assisting his mother in the garden. In the circumstances Jennings's work injury never resolved itself and it was the episode of pain that he experienced while gardening that convinced him that he needed to seek medical attention. This essentially was the scenario that was considered in Dr Cook's evidence, and while he said that it was a scenario that was "possible", there was no contradictory evidence.
While there are inconsistencies in Jennings's version of events, there is very limited evidence, if any at all, contradicting his version in the determinative areas. It follows that unless I find that the inconsistencies and other factors relevant to credit can sustain a finding adverse to Jennings, and to the extent that Jennings's version should not be believed, then his appeal should succeed. Given my earlier conclusion not to enter such a finding I decide that Jennings's appeal should be allowed and that his application for compensation should be one for acceptance.
I order accordingly.
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