Qantas Airways Ltd v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 82
•12 May 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Qantas Airways Ltd v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 082 |
PARTIES: | Qantas Airways Ltd v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2011/457 |
PROCEEDING: | Appeal against decision of Regulator |
DELIVERED ON: | 12 May 2014 |
HEARING DATES: | 23–4 September 2013 |
MEMBER: | Deputy President O'Connor |
ORDERS: | 1. That the review decision of the respondent dated 27 October 2011 be set aside; 2. That a new decision rejecting the application for compensation be substituted in lieu of the respondent's original decision; and 3. That the respondent pay the appellant's costs of and incidental to this appeal, to be agreed, or failing agreement, to be the subject of a further application to the Commission. |
| CATCHWORDS: | WORKERS' COMPENSATION - MEANING OF "INJURY" - AGGRAVATION OF PRE-EXISTING CONDITION - Appeal by employer aggrieved by decision of the Regulator - Where the workers' compensation claimant alleged that he sustained a "lumbar back injury with disc degeneration" - Whether that injury was an "injury" within the meaning of that term in the Workers' Compensation and Rehabilitation Act 2003 - Whether employment was a significant contributing factor |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 (Qld), s 32 Carman v Q-COMP (2007) 186 QGIG 512 Qd R 519 |
| APPEARANCES: | Mr M. T. O'Sullivan, instructed by HWL Ebsworth Lawyers, for the appellant. Mr P. B. Rashleigh for the respondent, directly instructed. |
Decision
This is an appeal by Qantas Airways Limited, an employer and self-insurer ("the appellant"), pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act") against a decision of the Workers' Compensation Regulator's Review Unit ("the respondent") dated 27 October 2013 in which the respondent accepted
Mr Andrew Petrovic's claim for workers' compensation.
The appeal
On 31 March 1993 Petrovic commenced work for the appellant, firstly as a baggage handler, and then sometime in 1994 he transferred into the customer service area.
On 3 December 2010, Petrovic lodged an application for compensation for an injury described as "Lumbar back injury with disc degeneration" sustained by him on 24 November 2010.
On 17 January 2011, the appellant wrote to Petrovic to inform him that his application had been rejected. Petrovic sought review of that decision on 25 March 2011. The respondent set aside the appellant's decision with directions to undertake further investigations before making a fresh decision.
On 3 August 2011, the appellant advised Petrovic that it had again decided to reject his application, and on 16 September 2011, Petrovic again applied for review.
On 27 October 2011 the respondent again set aside the decision of the appellant.
This proceeding is by way of a hearing de novo and the appellant bears the onus of establishing its case on the balance of probabilities.
Issues for determination
At the relevant time, s 32 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.
…
(3) Injury includes the following–
…
(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; …"
It was not in issue between the parties that Petrovic was a "worker" within the definition of that word in the Act.
The issues for determination in this appeal are:
(a) whether Petrovic sustained an injury arising out of, or in the course of, employment; and
(b) whether employment was a significant contributing factor to the injury.
It was not in dispute between the parties that this was not an "over time" claim.
Background
In his evidence before the Commission, Petrovic stated that he was employed as a Customer Service Agent with Qantas at Cairns domestic terminal. Petrovic's duties as a Customer Service Manager are set out in the Customer Service Agent (CSA) – Cairns Airport position description.[1] Relevantly, his duties included group check-in, checking-in soft and awkward items between 5-15kg, and processing bags through a feeder belt. In particular, when undertaking the duties associated with being a Baggage Service Officer (Duty 24), he would be required to frequently lift bags weighing up to 32kg for up to 9.5 hours.
[1] Exhibit 10.
Within the baggage service area Petrovic would take missing or uncollected baggage off the baggage carousel and tag them for delivery. He said that he would deal with, on average, between 20 to 40 bags weighing up to 32 kilos.
On 25 November 2011 he woke in the morning in severe pain which he described in his evidence as "intense lower back pain and it was pulling down into my left leg."
Two days prior to 25 November, Petrovic said that he experienced some mild back pain. In his evidence-in-chief he said:
"All right. Now, just tell his Honour what happened up to the 25th of November two thousand and – that was the morning. And tell his Honour when and how you suffered – had any pain?---All right. On the 23rd, I just had – just a back strain as far as – it was just a mild pain that I had on the Tuesday. Then on the Wednesday, I still had the mild pain and then on the Thursday, it literally left me bedridden. I couldn't get out of bed."
On Tuesday 23 November, Petrovic experienced dull pain in his back. On that day he worked the night shift. He said that the pain did not intensify during the day but remained the same describing it as a "dull ache" The following day Petrovic again worked the night shift. He told the Commission that nothing out of the ordinary happened during the shift and that it was basically much the same. He finished his shift around 11:30pm, returned home and went to bed. The pain remained constant.
On Thursday 25 November he woke with intense lower back pain.
On 2 December 2010, Petrovic contacted Mr Hill, the then Rehabilitation Co-Ordinator with Qantas, to ascertain whether he could access the services of the staff physiotherapist. During the telephone conversation with Hill, Petrovic agreed that he had told Hill that he could not remember anything that would have caused his back pain. In his evidence-in-chief Petrovic said:
"So you told him exactly that, that you didn't remember anything that could have caused this, and you added that you hadn't felt anything in the workplace. Words to that effect. That's what you said to Mr Hill?---Yeah. I said to him that I couldn't remember how I did – how I hurt my back.
Okay?---There was no specific incident that - - -
Sure?---Like, I would put it to.
You went on to say to him that all you knew is that you woke up in severe pain and you've been unable to do anything since?---That's right."
Hill came to Petrovic's house at around 10 am on 3 December 2010 to assist with the completion of the application for workers' compensation. The application for compensation was completed by Petrovic, with the assistance of his wife. Under "Accident Detail" the completed application recorded: "1st noticed symptoms on 24th November, 2010 tingling sensation in lower back." In answer to the question, "How did the injury occur and what were you doing at the time?" Petrovic wrote, "nature of injury undetermined, no specific incident refer to statement of events and F2000."[2]
[2] Exhibit 1.
The Statement of Events records the following:
"On the morning of the 24/11/10 approx 6am, I woke up with mild lower back pain, I went to work as normal. My pain stayed consistent throughout my shift, as I don't recall any specific incident I did not feel I required to report it. On the morning of 25/11/10 I woke up at 0600 with severe lower back pain, when I stood up I felt shooting pain down my right leg to my knee, and was unable to stand up for any length of time."[3]
[3] Exhibit 1.
The Form 2000 records: "IW woke up on 24-11-10 with mild pain and 'tingling' in lower back. Came to work and completed shift without incident."[4]
[4] Exhibit 9.
I accept the unchallenged evidence of Mr Hill contained in his statement of 13 April 2011 wherein he states:
"We all worked to the kitchen where we stood at the dividing bench, Patricia on the kitchen side, Andrew at the end and myself standing on the lounge dining side of the bench. We discussed the events leading up to his waking with lower back pain several days before as had been discussed the previous day. Andrew reiterated that he had not had any incident at work that he could identify as cause of his back pain. He said that he had woken up on the morning of the 24th November and had noticed a "tingling" sensation with mild pain in his lower back. He confirmed that there had been no leg pain noticed at the time. I am particular in asking this question when it comes to back pain reports as I have had personal involvement with Lumbar Disc Injury having had L4-5S1 permanently fused myself many years ago."[5]
[5] Exhibit 2.
He goes on to note:
"Andrew then said that he had gone to work on the 24th November and was able to do all of his normal duties without incident or aggravation to his back."
Dr Hogben, in his report of 10 December 2010, records, "While there is no specific injury event recorded, his pain occurred on waking on 24/11/201[sic]".[6]
[6] Exhibit 12.
I do not accept the evidence of Petrovic that he experienced mild lower back pain on 23 November 2010. The preponderance of evidence suggests that Petrovic first experienced pain when he woke on the morning of 24 November 2010. In coming to that conclusion, I take particular note of the application for workers' compensation signed by Petrovic on 3 December 2010, the Statement of Events also signed on 3 December, the Form 2000 and the evidence of Hill.
Petrovic could not recall any specific work event which precipitated his pain. His evidence on what he did in the days leading up to the development of the intense pain on 25 November was vague and lacking in specificity. At the highest, he was able to say what tasks he would ordinarily undertake as a Customer Service Agent and not what he actually did do on the days leading up to 25 November.
Dr Emery accepted that he would need more detail of what happened in the days prior to the 25th if he was to give an opinion. Dr Emery indicated in his evidence that:
"And in the next paragraph 5: do you believe that Petrovic's injury arose out of or in the course of employment with Qantas? You've indicated there you believed that Petrovic had sustained an aggravation of a pre-existing condition being exposed to repetitive physical stress. That's what you've said?---Yes.
Doctor, you're not referring to any particular time period over which that physical stress of a repetitive nature occurred?---No.
So it could have been - well, are you referring to over the years or months prior to him waking in bed on the 24th of November 2010?---Yes.
In - if one was to focus specifically on what occurred on the 23rd of November 2010, that is the day prior to him waking in bed with a sore back?---Yes.
You would need a lot more information, is that correct, before you could form any conclusion that something on that particular day caused any aggravation of his condition?---Yes.
Would you agree with that?---Correct.
And I take it the lighter his work activity on that day the less likely that anything that occurred on that particular day has been a significant contributing factor to his injury.
Is that correct?---Correct.
And the converse of that of course is that if you were advised that he was lifting 30 kilo bags all day to midnight more likely that that may have aggravated his condition.
Is that correct?---Correct.
All right. Now, sir, can I put it to you formally that if a fellow just wakes up in bed on the 24th of November 2010 and hadn't felt any pain in his back during say the previous day at work, that would not be a sufficient basis to form a conclusion that anything on the day prior was a significant contributor to his condition?---I think you can consider that, yes.
And I put it to you that in fact a very obvious explanation for his pain in his back on the morning of the 24th when he woke in bed was that he had a degenerative back condition that can produce the symptomatology. You agree with that?---Mmhmm. Yes."
Dr Hogben also accepted that it was not possible to say if the work activity had aggravated the underlying condition. In cross-examination he said:
"What I'm saying is though that perhaps there were other things that happened preceding the 23rd that may have contributed to that.
All right?---But I can't say that it was just the 23rd that was the, you know, that occasion. There was no injury that he could tell us about on that particular day.
Yes?---That stuff could have happened before that."
Dr Emery was of the opinion that it was possible that the pre-existing degenerative back condition was aggravated by work.
In re-examination, Counsel for the respondent took Dr Emery to the letter from Qantas dated 27 June 2011 and, in particular, to the following paragraph:
"In a statement also dated 3 December 2010, Mr Petrovic noted that on 24 November 2010 he woke with mild lower back pain due to unknown causes. He said he went to work as normal however the pain in his back "stayed consistant (sic) throughout my shift". He further said "I don't recall any specific incident". On waking the next morning (25 November 2010), Mr Petrovic had "severe lower back pain" such that "when I stood up I felt shooting pain down my right leg to my knee, (sic) and was unable to stand up for any length of time".[7]
[7] Exhibit 16.
In relation to that paragraph, Dr Emery was asked:
"What do you say about the contribution, if any, the work related activity had to the development of the pain on the morning of the 25th of November 2010?---I mean, asked to comment on a specific event, I think, for Mr Petrovic to develop the particular symptoms, but in a general matter it's possible that an accumulation of events such as any stress on the lower sacral spine junction with lifting, bending, twisting, could generate at one stage such symptoms which is severe low back pain.
Doctor, I'm asking you to concentrate on that paragraph, what's set out there, and bear in mind that on both the mornings Mr Petrovic woke up with back pain he had worked a shift till about 11 or 12 o'clock at night and then went to bed?---Well then you cannot - you cannot deny that there must be some correlation between any physical injury on the day before and the symptoms the day after.
Some what? I missed that?---Some relation. You cannot deny there is not - there is no relation. There must be some relation between any physical injury and the day - the night after - the day after you wake up with severe low back pain. This is - this is not - this is not uncommon."
I accept the report of Dr Jean Haddad dated 15 December 2010 which concluded "Degenerative changes in the discs with narrowed foramina L5/S1 (left side in particular) are noted. No definite evidence of disc herniation at any level."[8]
[8] Exhibit 6.
I also accept the opinion of Dr Haddad contained in the file note put into evidence pursuant to s 92 of the Evidence Act 1977 (Qld): "Dr Haddad stated the degenerative changes in the discs, as noted in his MRI report, were essentially just a stress type injury which had developed over time. He could not find any evidence of an acute/fresh injury."[9]
[9] Exhibit 7.
In the report of Dr Phillip Vecchio dated 18 December 2010, Petrovic was diagnosed as having an age related degenerative lower lumbar disease and evidence of significant degeneration at L5/S1 with a likely disc prolapse. Dr Vecchio opined:
"Whilst Mr Petrovic has performed some intermittent manual duties over the years, it is likely that the changes in the lower lumbar spine are age related and irrelevant to his employment. Therefore, the condition probably is of spontaneous onset and related more to his age than his work history. Lumbar degeneration occurs in the population at large without reference to significant reason. Whilst there are definably incidents which may result in a disc prolapse, the history is lacking in this particular case. Therefore, one must state, in fairness and probability, that the condition would have occurred anyway, independent of employment and independent of what was occupationally required the day or year previously."[10]
[10] Exhibit 8.
Dr Vecchio attributed Petrovic's pain on 25 November 2010 to his underlying condition. In cross-examination, Dr Vecchio was asked:
Would you agree with me that what he did at work would've caused the pain that he was suffering?--- It's a possibility. I'm unable to tell you whether it's the cause or not. I'm able to tell you that it's a common experience and you may experience pain without any [indistinct] traumatic influence - - -
I understand that?--- - - - but – yes, on most accounts I would have to say yes, it's possible without any influence and it's possible with loading of the spine of whatever nature.
All right. But do you agree with me that the closeness in time to the onset of the pain would more likely than not lead to the conclusion that the pain was brought about by what he did at work?--- It's possible.
The authorities
In Croning v Workers' Compensation Board of Queensland,[11] de Jersey P (as his Honour then was) held that the employment needs to be a "real effective cause" of the injury and not merely the setting or background in which the injury occurs.
[11] (1997) 156 QGIG 100.
In Newberry v Suncorp Metway Insurance Ltd,[12] 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 employer) against whom the claim is made."[13]
[12] [2006] 1 Qd R 519.
[13] Ibid, 529.
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 former."[14]
[14] Ibid, 532–3.
In Carman v Q-COMP,[15] Hall P said:
"It must be remembered that Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181 is an often cited but ageing authority. The worker who was successful on the point of law about the content of 'aggravation' was unsuccessful on the facts. Pleming v Workers' Compensation Board of Queensland, ibid, does not decide that a worker afflicted by a degenerative back suffers an injury if the back becomes painful at work. Neither does Pleming, op. cit., 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, op. cit. 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."[16]
[15] (2007) 186 QGIG 512.
[16] Ibid, 513.
In Q-Comp v Green,[17] 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 the phrase would also arise out of the employment."[18]
[17] (2008) 189 QGIG 747.
[18] Ibid, 750.
In Qantas Airways Ltd v Q-COMP,[19] Hall P said:
"It is important to bear in mind also that the adjective 'significant' qualifies the expression 'contributing factor'. The notion of 'contribution' in itself requires some linkage between the employment and the injury: compare Favelle Mort Limited v Murray (1975-1976) 133 CLR 580. In those circumstances, it seems to me that it would be wrong to place the meaning of 'significant contributing factor' so far towards the lower end of the spectrum that it carried the meaning of 'more than ephemeral or nominal'. Without treating s. 14B of the Acts Interpretation Act 1954 as a directive to construe a Minister's Second Reading Speech rather than of the statute, I take the liberty of observing that 'strong' is not an appropriate word to use to indicate the positioning of the phrase 'significant contributing factor' within the spectrum of meaning. With hindsight, the words adopted in Q-Comp v Green (2008) 189 QGIG 747, viz., 'important' and 'of consequence', seem to me to be equally apposite. I should say also that I also doubt that if 'significant' carries the meaning of 'large', 'great', 'weighty' or 'substantial', the amendment would have achieved the objective referred to by the Minister of ameliorating the difficulties which the expression "the major significant contributing factor" had caused in cases about the aggravation of pre-existing conditions.
On balance, I am not prepared to accept the submission that "significant" bears the meaning of "large", "great" "weighty" or "substantial". I regret that I am unable to be more precise than fixing the meaning of "significant" as towards the lower end but not at the base of the spectrum, and (to the extent that adjectives may be used without supplanting the statutory language) using words such as "strong", "important" or "of consequence". However the task is to apply a statutory test. The task is not to conceptualise an idea."[20]
[19] (2009) 191 QGIG 115.
[20] Ibid, 118–9.
Conclusion and findings
I accept that Petrovic had a degenerative back condition, namely, degenerative lower lumbar disease and significant degeneration at L5/S1 with a likely disc prolapse.
I find that the appellant has discharged the positive onus of establishing, on the balance of probabilities, that Petrovic did not have an injury within the meaning of
s 32 of the Act.
Whilst s 32(3)(b) of the Act requires that an aggravation be treated as an injury, it does not remove the necessity of demonstrating that the injury (by way of aggravation) arose out of or in the course of the worker's employment and that the employment was a significantcontributing factor to that injury.[21]
[21] See Luxton v Q-Comp (2008) 190 QGIG 4; Q-Comp v Green (2008) 189 QGIG 747; Poulsen v Q-COMP (C/2011/29) - Decision < type="1">
The phrase "a significant contributing factor" in s 32 of the Act requires more than a mere satisfaction that some element of contribution occurred. The appellant has, in my view, demonstrated that the contribution of the employment was not a significant contributing factor when compared to the dominant contributing factor, namely Petrovic's underlying degenerative condition.
The evidence, in particular, the medical evidence is sufficient to establish that Petrovic's employment with Qantas was possibly a contributing factor, but it was not, in my view, on the balance of probabilities, sufficient to establish that it was a significant contributing factor.[22]
[22] See JBS Australia Pty Ltd v Q-Comp (C/2012/35) - Decision < type="1">
The appeal is allowed. I make the following orders:
1. That the review decision of the respondent dated 27 October 2011 be set aside;
2. That a new decision rejecting the application for compensation be substituted in lieu of the respondent's original decision; and
3. That the respondent pay the appellant'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.
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