State of Queensland (Department of Transport and Main Roads) v Simon Blackwood (Workers' Compensation Regulator) - [2016] QIRC 21

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	State of Queensland (Department of Transport and Main Roads) v Simon Blackwood (Workers' Compensation Regulator) [2016] QIRC 021
PARTIES:	State of Queensland (Department of Transport and Main Roads) (Appellant) v Simon Blackwood (Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2015/219
PROCEEDING:	Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator)
DELIVERED ON:	19 February 2016
HEARING DATES:	26 October 2015
HEARD AT:	Brisbane
MEMBER:	Industrial Commissioner Black
ORDERS:	1. Appeal allowed 2. The decision of the regulator dated 8 July 2015 is set aside and substituted with a decision that the claim is not one for acceptance 3. The matter of costs is reserved
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION - aggravation or exacerbation of degenerative back condition - short term and temporary increases in symptoms - whether employment a significant contributing factor.
CASES:	Workers' Compensation and Rehabilitation Act 2003, s 32, s 550 Carmen v Q-COMP (C/2007/29) Commonwealth v Beattie (1981) 53 FLR 191 Commonwealth Banking Co v Percival (1988) 20 FCR 176 Darling Island Stevedoring and Lighterage Co Ltd v Hankinson (1967) 117 CLR 19 Federal BroomCo Pty Ltd v Semlitch (1964) 110 CLR 626 Fielder v WorkCover Queensland (2004) 175 QGIG 871 JBS Australia Pty Ltd v Q-COMP (C/2015/35) Karipa v Q-COMP (WC/2011/453) Myer Holdings Ltd v Q-COMP (WC/2013/118) Omanski v Q-COMP (C/2012/34) Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181
APPEARANCES:	Mr M. Spry, Counsel instructed by the Crown Law for the Appellant. Mr A. Johnson, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent.

Decision

Introduction

The Department of Transport and Main Roads ("the appellant") appeals a decision of the Review Unit of the Workers' Compensation Regulator ("the regulator") dated 8 July 2015 to confirm the decision of WorkCover Queensland to accept an application for compensation lodged by Ms Melissa Buchanan.
Ms Buchanan lodged her application for compensation with WorkCover for a lower back injury on 15 January 2015. Ms Buchanan said that she sustained the injury on 9 September 2014 as a result of prolonged, stressful periods of working in a sitting position. Ms Buchanan was at the relevant time employed by the appellant as a senior program adviser. Her work involved typing, making and receiving phone calls, monitoring emails, and providing temporary relief for other staff members. Most of her work duties were performed while she was sitting at her work station.
The appellant conceded that Ms Buchanan was a "worker" for the purposes of the Worker's Compensation and Rehabilitation Act 2003 ("the Act") and accepted that Ms Buchanan suffered from lower back pain. The appellant however did not accept that Ms Buchanan's injury arose out of or in the course of her employment nor that her employment was a significant contributing factor to the injury.
Whether the employment significantly contributed to the back condition or significantly contributed to an aggravation of a pre-existing degenerative back condition were the ultimate matters for determination. The appellant relied on the evidence of Dr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: State of Queensland (Department of Transport and Main Roads) v Simon Blackwood (Workers' Compensation Regulator) [2016] QIRC 21
Case: [2016] QIRC 21
Decision Date: 19 February 2016

CaseChat Overview and Summary

The case involved a claim for workers' compensation by Simon Blackwood, represented by the Department of Transport and Main Roads, against the Workers' Compensation Regulator. Blackwood was a police officer who sought compensation for an aggravation or exacerbation of his degenerative back condition, claiming that his employment was a significant contributing factor. The crux of the dispute lay in whether Blackwood's employment conditions, particularly the long hours and the nature of his work, significantly contributed to the exacerbation of his pre-existing degenerative back condition.

The legal issues that the court had to address included determining whether the claimant's employment conditions were a significant contributing factor to the exacerbation of his degenerative back condition and whether the short-term and temporary increases in symptoms were a result of the employment. This required the court to assess the medical evidence presented, particularly the opinions of the various medical experts regarding the causation and contribution of the claimant's work conditions to his back injury.

The court found that the evidence did not sufficiently support the claim that the claimant's employment was a significant contributing factor to the exacerbation of his degenerative back condition. The court noted that while the claimant's work involved prolonged sitting, there was no clear evidence that this alone, without a precipitating event, could be considered a significant contributing factor. The court also highlighted that the claimant's work conditions, including the use of an ergonomically designed chair, did not sufficiently substantiate the claim of significant contribution. The appeal was thus allowed, and the decision of the regulator was set aside, ruling that the claim was not one for acceptance. The matter of costs was reserved for further determination.

Orders

Orders of the court

1. Appeal allowed

2. The decision of the regulator dated 8 July 2015 is set aside and substituted with a decision that the claim is not one for acceptance

3. The matter of costs is reserved

Background

Background to the litigation

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Evidence

Evidence Before The Court

She returned to work in the first week of January 2015. Her return to work was subject to a graduated return to work program which extended through until May 2015. During this period she was taking strong medications and was only able to work a few hours each day.Dr Heyne's Evidence Ms Buchanan had been a patient of Dr Heyne between 28 November 2007 and 24 August 2010 and also from October 2014 onwards. Dr Heyne took the view that Ms Buchanan's injury was caused by sitting at work for prolonged periods. Ms Buchanan first attended on Dr Heyne in respect to her back condition on 20 October 2014. Dr Heyne subsequently issued a workers' compensation medical certificate on 29 December of 2014 in which she entered a diagnosis of "lumbar strain with disc damage and left-sided sciatica in L4/L5 and L5/S1 distribution". The workers stated cause of injury was expressed to be "prolonged, stressful periods of working in sitting position without breaks". Dr Heyne said that she was given the following history by Ms Buchanan (T1-39): Dr Heyne said that it was her understanding that Ms Buchanan consistently worked 12 hour days and 80 hour weeks (T1-45): Dr Heyne said that Ms Buchanan got her ergonomically designed work chair in February 2014 and therefore had access to ergonomically designed chair at work throughout 2014. Dr Heyne also said that it was her understanding that Ms Buchanan commenced working longer hours around February 2014. Dr Heyne said that the injury was sustained in the absence of any precipitating event (T1-39): The effect of Dr Heyne's evidence was that Ms Buchanan's attendance at work for up to 80 hours a week and 12 hours per day, in conjunction with a sub-optimal ergonomic environment, caused her back injury. There was no particular physical activity at work that caused or contributed to the injury. Rather it was the sedentary nature of the occupation and long working hours that caused the problem. In this regard Dr Heyne opined (T1-42) that it was well-known that prolonged sitting with poor ergonomics is one of the contributing factors that will strain backs. Whether Dr Heyne was entitled to draw a conclusion of "poor ergonomics" is unclear on the evidence, but in the end result not much turned on it because it was accepted that throughout her time at work in 2014, Ms Buchannan enjoyed the use of an ergonomically designed chair. Additionally during cross-examination Dr Heyne recanted on her initial evidence that ergonomic conditions were a contributing factor to the back condition. In this regard it was her evidence that it did not really matter if the seating was optimal or sub-optimal for a person who was sitting and working for 80 hours a week. Her evidence (T1-47) was that in these circumstances there is a "strain on the back, whether it's good or bad ergonomics". Dr Heyne said that Ms Buchanan had a bulging disc and that meant degeneration of her spine. It was her evidence (T1-43) that it was a "well-known medical fact that prolonged sitting with sub-optimal ergonomics does place incorrect strain through discs and exacerbate degenerative changes." However Dr Heyne denied that Ms Buchanan's symptoms should be considered a natural progression of her degenerative condition (T1-44) opining that "sitting 80 hours a week" is not natural. She acknowledged however (T1-45) that in particular circumstances such as prolonged sitting, the underlying degenerative disc pathology could be aggravated.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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