Tyson v Simon Blackwood (Workers' Compensation Regulator) - [2014] QIRC 191

No judgment structure available for this case.

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Tyson v Simon Blackwood (Workers' Compensation

Regulator) [2014] QIRC 191

PARTIES:

Tyson, Brett Russell

(Appellant)

v

Simon Blackwood (Workers' Compensation
Regulator)

(Respondent)

CASE NO:

WC/2014/225

PROCEEDING:

Appeal

against

decision

of

the

Workers'

Compensation Regulator

DELIVERED ON:

21 November 2014

HEARING DATES:

3 and 4 November 2014

MEMBER:

Industrial Commissioner Neate

ORDERS :

1.	The Appeal is allowed.
2.	The decision of the Workers' Compensation Regulator dated 10 July 2014 is set aside.

3.

The

Appellant's

application

for

compensation under the Workers' Compensation and Rehabilitation Act 2003 is one for acceptance.
4. The Respondent is to pay the Appellant's costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.

CATCHWORDS:	WORKERS' COMPENSATION - work-related aggravation of injury to cervical spine - benefits paid - Workers' Compensation Regulator decided to terminate Appellant's entitlement to compensation - whether aggravation of pre-existing asymptomatic cervical spine condition had ceased - whether Appellant entitled to payments for medical treatment - Appellant bears onus of proof - how to decide between competing medical opinions about whether aggravation of injury had ceased
CASES:	Workers' Compensation and Rehabilitation Act 2003
ss 32, 108, 144A, 144B Adelaide Stevedoring Company Ltd v Forst (1940) 64 CLR 538 Chattin v WorkCover Queensland (1999) 161 QGIG 531 Commissioner of Police v David Rea [2008] NSWCA 199 Commonwealth v Beattie (1981) 35 ALR 369, 53 FLR 191 EMI (Australia) Limited v Bes (1970) 44 WCR 114 Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 Holtman v Sampson [1985] 2 Qd R 472 Joyce v Yeomans [1981] 1 WLR 549, [1981] 2 All ER 21 Monroe Australia v Campbell (1995) 65 SASR 16 Obstoj v Van de Loos (Unreported, Supreme Court of Queensland, 16 April 1987)
Plening v Workers' Compensation Board of
Queensland (1996) 152 QGIG 1181 Qantas Airways Limited v QComp (2006) 181 QGIG 301 Ramsay v Watson (1961) 108 CLR 642
Rossmuller v Q-COMP (C/2009/36) - decision
Sotiroulis v Kosac (1978) 80 LSJS 112
State of Queensland (Queensland Health) v QComp
and Beverley Coyne (2003) 172 QGIG 1447
APPEARANCES:	Mr Michal Horvath, counsel instructed by Turner Freeman Lawyers Mr Andrew McLean Williams, counsel instructed
directly by the Workers’ Compensation Regulator.
Decision

[1]      The Appellant, Brett Russell Tyson, suffered an injury to his neck as a result of work-related activity in about November 2013. He applied for compensation for the injury. WorkCover Queensland ("WorkCover") accepted the claim for an aggravation of a pre-existing but asymptomatic cervical spine degeneration, and benefits were paid.
[2] However, WorkCover subsequently advised the Appellant that it was terminating his benefits in accordance with ss 144A and 144B of the Workers' Compensation and Rehabilitation Act 2003 ("the Act"), on the basis that the ongoing symptoms were attributable to his pre-existing condition rather than the accepted work-related aggravation.
[3]      The Appellant sought a review of the WorkCover decision. In a decision dated 3 July 2014, sent to the Appellant's solicitors in a letter dated 10 July 2014, the Review Unit of the Workers' Compensation Regulator ("the Respondent") confirmed the decision of WorkCover to terminate the Appellant's entitlement to compensation from 1 April 2014. He appeals against that decision.
The issue: has the work-related aggravation of the Appellant's condition ceased?
[4]      The only issue in this case is whether the work-related aggravation to the Appellant's neck ceased on or about 1 April 2014 or whether that aggravation continues. Expressed differently, the issue is whether the symptoms of which the Appellant still complains are referable to the work-related aggravation of a pre-existing condition, or whether those ongoing symptoms are referable only to that condition.
The circumstances in which the aggravation occurred
[5]      The factual background to this case is not in dispute. In summary, the Appellant is 48 years of age. At 15 years of age, after completing year 10 at school, he commenced an apprenticeship. After four years, he obtained qualifications as a carpenter and joiner, and he worked as a carpenter until 28 November 2013 (apart from seven years as a salesperson). As a carpenter he performed a range of tasks, some of them involving significant physical exertion.
[6]      Between July and November 2013, the Appellant worked as a carpenter/labourer for Kev Morris Builder. The employer did mainly renovations, alterations and extension work to houses in Toowoomba. Between July and mid-October 2013, the Appellant's work involved about 60 per cent carpentry and 40 per cent labouring. In a six weeks period from late October until late November 2013, almost all of his work was labouring. That involved heavy physical activity including demolition work, clearing debris, bricks, concrete and rubble, levelling dirt, landscaping and moving furniture. The Appellant used various tools including shovels, crowbars, wheelbarrows, and jackhammers of different sizes. He described being very tired at the end of each day's work, and said that the final six weeks of work were the most intense he had done.
[7]      The Appellant had no neck pain, injuries or medical treatment for his neck before his employment by Kev Morris Builder. In short, he was symptom free.
[8]      In early November, while working at Christy Court in Toowoomba, the Appellant experienced pain in his right shoulder at shoulder blade height. The pain slowly became worse, travelling down his arm to his elbow and hand and fingers. He experienced a numb hand and fingers, and started getting "pins and needles" in his fingers.
[9]      The Appellant complained about the pain to a fellow labourer at Christy Court and, on Thursday 28 November 2013, to his supervisor. Because of the pain, on Friday 29 November 2013 the Appellant arranged for a consultation with his general practitioner, Dr Kenneth McNicol, for 3 December 2013.
[10]   There was no work on 29 November 2013 because the employer was waiting for materials to arrive at the next job site. Although he was to attend a work Christmas party that weekend, the Appellant contacted the employer's wife to say that he would not attend because of his pain.
Medical consultations in relation to the aggravation
[11]   Dr McNicol's consultation note for 3 December 2013 (Exhibit 1) records that the Appellant had right shoulder pain, and that the pain was worse with neck flexion. The Appellant had experienced two weeks of increasing lateral pain in his upper right arm radiating down to his hand with C7/T1 paraesthesia. In addition to issuing prescriptions for medication, Dr McNicol requested CT imaging of the cervical spine, an X-ray and an ultrasound scan of right shoulder.
[12]   On 9 December 2013, the Appellant consulted Dr McNicol who diagnosed neuropathic pain, prescribed medication and wrote a letter of referral to Dr Jefferson Webster, a neurosurgeon.
[13]   On 7 January 2014, the Appellant again consulted Dr McNicol about neuropathic pain. Dr McNicol issued a Workers' Compensation medical certificate that stated that the Appellant was not capable of doing any type of work from 3 December 2013 until 3 February 2014, the Appellant would need treatment in that period, and Dr McNicol had referred the Appellant to Dr Webster (Exhibit 3).
[14]   The Appellant saw Dr Webster on 23 January 2013 and again on 21 February 2014. At the request of Dr Webster, the Appellant had an MRI on 31 January 2014 (part of Exhibit 2). Dr Webster produced three reports, two addressed to WorkCover (dated 24 January 2014 and 21 February 2014) requesting funding for a neck operation for the Appellant (Exhibit 2).
[15]   The Appellant obtained various medical certificates for WorkCover from Dr McNicol and Dr Webster, for periods between 3 December 2013 and 30 May 2014 (Exhibit 3). Those certificates stated that the Appellant was not capable for any type of work.
[16]   The Appellant was seen by Dr Leo Zeller, an orthopaedic surgeon, on 6 March 2014 at the request of WorkCover (Exhibit 5). Dr Zeller considered that the Appellant had an aggravation of his asymptomatic neck injury caused by the heavy work period, but that the aggravation had ceased by 6 March 2014.
[17]    The Appellant saw Dr Scott Campbell, a neurosurgeon, on 28 July 2014 (Exhibit 4). He considered that the Appellant's ongoing injury and symptoms were predominantly caused by the heavy work in October and November 2013, with 30 per cent of the injury being treated as pre-existing.
Ongoing symptoms and options for treatment
[18]   The Appellant experienced pain from November 2013 until the time of the hearing of his appeal. The pain levels in November 2013 were about 4 and increased to 9.5 out of 10. By the time of the hearing, the pain was at 2 out of 10 level without activity, and after activity (particularly lifting his head or turning his head), went to between 8 and 8.5 out of 10. It could take an hour or more for that pain to come back down to a lower level.
[19]    In Dr Webster's opinion, the options available to the Appellant were:

(a) a cortisone injection to the appropriate nerve root; or
(b) surgery, being an anterior cervical discectomy and fusion at C6/7.

Dr Webster advised the Appellant to have an operation, and he is prepared to have it. The Appellant considers that an operation is inevitable because he is not recovering from his injury and in some ways the injury is getting worse.
[20]   The Appellant had no subsequent incidents or injuries that could be said to aggravate his neck since he stopped working with the employer on 28 November 2013. He had an unrelated fall on his right shoulder when he missed a step on a footpath and fell over. The fall occurred in March 2014 after he saw Dr Zeller. The Appellant had an operation for that injury on 1 July 2014. He can differentiate the pain due to the shoulder injury (front of the shoulder) and the pain radiating because of the neck injury (at the back on the shoulder blade). He also said his shoulder injury was largely resolved.
Relevant legislative provisions
[21] The resolution of the issue in this case will determine whether the Appellant is entitled to payment of compensation under the Act, the relevant provisions of which are ss 32, 108, 144A and 144B.
[22]    Section 32 provides, in part:
"(1) An injury is personal injury arising out of, or in the course of,
employment if -

(a)

for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury;
…

(2) 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 other than a psychiatric or
psychological disorder; …

(3)

For subsection (3)(b) and (ba), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation."

[23] Section 108 provides:

"(1) Compensation is payable under this Act for an injury sustained by a
worker.

(2) However, if a worker's injury is an aggravation mentioned in section 32(3)(b) or (ba), the worker is entitled to compensation for the injury only to the extent of the effects of the aggravation."

[24] Section 144A prescribes the circumstances when payments of compensation stop. Relevantly for present purposes it states:

"(1) The entitlement of a worker to weekly payments of compensation under
part 9 stops when the first of the following happens -

(a) the incapacity because of the work related injury stops;
…"

[25] Section 144B prescribes that a worker's entitlement to the payment of medical treatment, hospitalisation and expenses for an injury stops when:

"(a) the entitlement of the worker to weekly payments of compensation
under part 9 stops; and

(b)

medical treatment by a registered person is no longer required for the management of the injury because the injury is not likely to improve with further medical treatment or hospitalisation."

Resolving the issue: the appropriate approach
[26] The resolution of the issue involves deciding between conflicting views as to the cause of the Appellant's symptoms at and after 1 April 2014. As Mr Horvath submitted, it is not a matter of simply choosing between two competing medical opinions. All the evidence must be considered, including that of the Appellant.
[27] Mr Horvath referred to various judgments on the proper approach to be taken by a trier of fact (whether a jury, tribunal or court) in cases where there is a conflict of expert medical opinion evidence. It is not necessary to deal with those authorities comprehensively or in detail. It is sufficient to note that there is judicial authority for the following propositions:

(a) the tribunal of fact can be assisted by expert medical opinion evidence,
but must weigh and determine the probabilities as to the cause of an

1

ailment or injury having regard to the whole of the evidence;

(b) the tribunal's duty is to find ultimate facts and, so far as it is reasonably
possible to do so, to look not merely at the expertise of the expert
witness, but to examine the substance of the opinion expressed and
(where experts differ) to apply logic and common sense to the best of its
ability in deciding which view is to be preferred or which parts of the

2

evidence are to be accepted;

(c) only when medical science denies that there is a connection between, for
example, certain events and a person's death can a judge not act as if
there were a connection; but if medical science is prepared to say that it
is a possible view, then the judge after examining the lay evidence can
3

decide that it is probable;

(d) the issue will not be resolved by counting witnesses;[4]
(e) the finding could be described as one based on the credibility of expert
[4]
witnesses, having regard to such things as whether the witnesses display
signs of partisanship in the witness box or lack of objectivity, and
whether they make proper concessions to the viewpoint of the other
5

side;

(f) distinctions may be drawn on the basis of demeanour (a limited ground
where experts are under consideration); qualifications, impressiveness
and cogency of reasoning and exposition of reasoning; preparation for,
and application to, the problem in hand; and the extent to which the
witness had a correct grasp of basic, objective facts relevant to the
6

problem; and

(g) if it is open to the tribunal to prefer one body of evidence to the other on
grounds fairly discerned, the tribunal should express its reasoned
7

preference.

[28] In applying those propositions in the present case, it is also necessary to remember
that these proceedings are conducted as a hearing de novo and the Appellant bears
8

the onus of proof on the balance of probabilities.
[29] Important as the Appellant's evidence is as to his work history, and the nature, timing, extent and duration of his symptoms, it is the medical experts who provide a clinical diagnosis of his condition.
The medical evidence
[30] Oral and written evidence was given by three doctors:

(a) Dr Campbell, a neurosurgeon;
(b) Dr Webster, a neurosurgeon; and
(c) Dr Zeller, an orthopaedic surgeon.

Each doctor examined the Appellant and referred to various scans or imaging when making their diagnosis.
[31] The CT scan of the Appellant's cervical spine showed a right C6/7 disc osteophyte complex and disc protrusion with right C7 nerve root compression.
[32] The MRI, requested by Dr Webster and dated 31 January 2014, showed among other things, loss of the normal cervical lordosis secondary to multilevel low grade cervical spondylosis from C3/4 to C6/7 and, at the C6/7, a prominent asymmetrical annular disc bulging contributing to severe right sided neuroforaminal stenosis with possible impingement on the exiting right C7 nerve root. The summary referred to "chronic multilevel degenerative disc change with mild cervical spondylosis from C3/4 to C6/7," and disc bulges at C4/5 and C5/6.

[33] As Dr Campbell explained:

(a)

the C6/7 disc osteophyte is a bone or calcification deposit that has built up over a disc bulge; it is associated with aging and develops over time (usually at least two to five years);

(b)

the annular disc bulge associated with the osteophyte may have been the same size before the work-related activity that resulted in the Appellant's symptoms;
(c) the CT scan report did not show any signs of obvious trauma;

(d)

without a pre-injury scan it is not possible to say whether the size of the disc bulge could be related to the longstanding degenerative change or more recent trauma and, in particular, whether it increased in size as a result of the work-related activity.

[34] There was no dispute that, although the Appellant had the degenerative condition before October-November 2013, he was unaware of it and had experienced no pain as a consequence of it before that period.
[35] In their written reports, the doctors recorded the following diagnoses and causes of the Appellant's injury (summarised in chronological order by date of each report):

(a) right sided C6/7 aggravation of cervical spondylosis with his background disc osteophyte complex; the pre-existing condition was asymptomatic until the repetitive heavy manual tasks over six to seven weeks (Dr Webster, 21 February 2014, Exhibit 2);
(b) aggravation of the cervical spine degeneration and possible entrapment of the right C7 nerve root, with work duties having aggravated a pre- existing but asymptomatic cervical spine degeneration (Dr Zeller, 23 March 2014, Exhibit 5);
(c) musculo-skeletal injury of the cervical spine with aggravation of pre- existing asymptomatic right C6/7 disc osteophyte complex, sustained as a result of performing repetitive and intensive manual handling tasks at work from early October 2013 (Dr Campbell, 28 July 2014, Exhibit 4). (emphasis added)

[36] In essence, each doctor diagnosed an aggravation of a pre-existing asymptomatic condition. That leaves the question whether the Appellant's injury continues to comprise an aggravation of that condition or whether the aggravation has ceased and the symptoms relate only to the pre-existing condition. The answer to that question will determine whether WorkCover pays for the surgery.
Dr Campbell's evidence
[37] The Appellant relies on the evidence of Dr Campbell. In his report dated 28 July 2014, after examining the Appellant on that date, Dr Campbell wrote:
"Mr Brett Tyson sustained an injury to the cervical spine as a result of performing intensive manual handling tasks at work from early October 2013 including jack hammering and digging holes."

Dr Campbell expressed the opinion that the Appellant's ongoing symptoms represented "an aggravation of the work injury as opposed to long standing degenerative changes, although the long standing degenerative changes have contributed 30% to the overall pathology" (Exhibit 4).
[38] In the same report, Dr Campbell stated that the pre-existing right C6/7 disc osteophyte complex "would not have become symptomatic in the foreseeable future" if the Appellant had not been exposed to intensive work duties over a six week period. He volunteered, however, that it would be expected that the disc osteophyte complex would have become symptomatic at some stage later in the Appellant's career and may have reduced his work expectancy as a carpenter by five to seven years.

[39] In his oral evidence, Dr Campbell stated that:

(a) for genetic or constitutional reasons some people are more pre-disposed to wear and tear damage, such as osteoarthritic changes to their cervical spine;
(b) in his opinion there was a strong link between the heavy labouring activities performed by the Appellant in October-November 2013 and his neck injury, so that the Appellant "sustained a neck injury as a result of performing those work tasks" most probably as the result of an aggravation of an existing disc osteophyte;
(c) when he saw Dr Zeller in March 2014, the Appellant had ongoing symptoms, the most likely cause of which was the neck injury that occurred at work;
(d) the aggravation of the Appellant's injury has not ceased;
(e) about 80 per cent of people who had an acute event at work (like that experienced by the Appellant) will have their symptoms resolved over three to four months, another 10 per cent would take one to two years and the remaining 10 per cent would enter a chronic phase of neck pain and symptoms;
(f) the work injury represents 70 per cent of the Appellant's current symptomology and the pre-existing right C6/7 disc osteophyte represents 30 per cent of his injury;
(g) because the symptoms could not be attributed to a single event (but rather occurred after about six weeks of heavy labouring work), he had regard to external factors when allocating those proportions and considered that the pre-existing asymptomatic disc osteophyte played a minor role in the overall injury;
(h) although an asymptomatic disc osteophyte can become symptomatic as part of a person's natural history, that is unlikely and it is more likely that it will become symptomatic if there is an associated event.

[40] Dr Campbell confirmed his written opinion that:

(a)

had the Appellant not performed the heavy labouring work in October- November 2013, his neck "would not have become symptomatic in the foreseeable future";

(b)

the pre-existing disc osteophyte makes the Appellant more susceptible to an injury to the neck than someone who does not have a disc osteophyte at the same age, and there is a more than 50 per cent likelihood that the Appellant's work expectancy would be reduced by about five to seven years.

Dr Webster's evidence
[41]   Dr Webster examined the Appellant on 23 January and 21 February 2014. Having also considered the MRI report and CT scan, Dr Webster diagnosed a right sided C6/7 aggravation of cervical spondylosis (i.e., degeneration of the cervical spine) with his background disc osteophyte complex, which was caused by a series of events involving repetitive heavy manual tasks over six to seven weeks in the course of the Appellant's standard workplace duties. Dr Webster described the Appellant's severe pain as "consistent with his clinical diagnosis where he has a right C7 radiculopathy, secondary to the aggravation of cervical spondylosis" (Exhibit 2).
[42]    In cross-examination, Dr Webster described the findings on the MRI as "reasonable" for a man of the Appellant's age who is in a heavy labour occupation, but agreed that there was no evidence on film of any acute injury and that, in the absence of any recent acute injury, it is more likely that the Appellant's condition relates to the degenerative changes in his neck. Dr Webster agreed that an exacerbation of a pre- existing condition should abate after some time. However, he did not think that, in the absence of an episode of heavy work, the Appellant's condition would have resulted in, or become the cause of, the symptoms.
[43]   In his report to WorkCover on 21 February 2014, Dr Webster provided answers to the following questions:

"Q8 (a) Is the injury an aggravation of a pre-existing condition?
By definition, he has a pre-existing condition because he has cervical spondylosis. Cervical spondylosis does include disc osteophyte complex. He has been asymptomatic until the point of his injury, and this represents clearly an aggravation of cervical spondylosis.
(b) If so, indicate what treatment is for the work-related component and what point ongoing treatment will be to treat the pre-existing condition?
His treatment will require an anterior cervical discectomy and fusion at C6 and C7. The premise of the third part of the question seems rather esoteric."

Mr McLean Williams was particularly critical of the answer to Question 8(b), submitting that Dr Webster side stepped the question rather than answering it. Mr McLean Williams noted that Dr Webster proposed surgery on 24 January 2014, before he was asked to consider whether the Appellant's condition is one that would entitle him to payment from WorkCover.
[44]   In cross-examination, Dr Webster explained that the second sentence in his answer to Question 8(b) was predicated on the Appellant having pre-existing changes in his neck which were asymptomatic before the aggravation caused by work activities that caused his pain and his inability to return to work. I note also, that Dr Webster issued medical certificates on 23 January 2014, 21 February 2014 and 8 May 2014 certifying that the Appellant was not capable of performing any type of work for periods from 23 January 2014 until 22 March 2014 and 7 to 30 May 2014. Each certificate referred to cervical spondylosis as a pre-existing condition, as well as the diagnosis in relation to the right C6/7 disc osteophyte complex.
Dr Zeller's evidence
[45]    The respondent relied on the evidence of Dr Zeller, which comprised written reports dated 23 March and 23 September 2014 (Exhibit 5) and his oral evidence. Dr Zeller's oral evidence both supplemented and, in one respect, was at variance with his written reports.
[46]    Dr Zeller noted the symptoms and pain levels described to him by the Appellant in March 2014, and confirmed that the CT scan and MRI revealed widespread degenerative changes within the Appellant's cervical spine that are usually a product of aging, although they vary from person to person. Dr Zeller described the Appellant's cervical spine as "probably consistent with his age and maybe a little worse". The findings on the scans were consistent with his clinical findings.
[47]    In his report to WorkCover of 23 March 2014 (Exhibit 5), Dr Zeller wrote:
"It is most likely that he has aggravated the foraminal stenosis on the right at C6/7. The history of his work duties leading up to the commencement of his pain is in keeping with an aggravation."

[48] In response to specific questions, he answered:

"6. It is my belief that the work duties as described have aggravated the
cervical degeneration.
7. The work-related condition is an aggravation of a pre-existing but asymptomatic cervical spine degeneration."

[49] Dr Zeller took issue with:

(a) Dr Campbell's conclusion that the Appellant's pathology at the C6/7 condition would not have become symptomatic if he had not undertaken the heavy manual work; and
(b) Dr Campbell's attribution of 70 per cent of the Appellant's clinical condition to the work related injury,

because Dr Zeller did not believe that Dr Campbell provided any evidence, apart from what the Appellant told him, to support those opinions. The type of evidence that Dr Zeller had in mind could include a new disc protrusion or a subtle fracture that would be evident on the MRI scan. Consequently, although he thought surgery was a reasonable treatment, Dr Zeller did not consider that the majority reason for the surgery was based on the injury. Rather, the majority reason for surgery and ongoing treatment was related to the underlying pathology.
[50] In summary, Dr Zeller gave oral evidence that:

(a) although the Appellant had a period of increased symptoms, there was no "objective evidence" (i.e. something recorded on an x-ray, CT scan or MRI) of any structural new pathology or structural change to the pathology of the Appellant's cervical spine which would be attributable to work-related activity, in other words, there is "no objective evidence in his imaging" that there has been a "recent traumatic injury to his neck";
(b) although work of the type engaged in by the Appellant in October and November 2013 could exacerbate a previously asymptomatic condition, it is "generally accepted" that the exacerbation to the Appellant's injured neck would abate or stop within three months of the activity that gave rise to the symptoms;
(c) the Appellant's ongoing symptoms (as described to Dr Zeller in March 2014) are related to his underlying pathology; and
(d) because there has been no structural change in the Appellant's underlying pathology, there has been no aggravation, although there was an exacerbation of his condition.

[51] Dr Zeller also gave oral evidence that:

(a) if a soft tissue injury is not shown on a scan he would have no evidence of an injury, even though a patient reports the injury (because, Dr Zeller said, the clinical features have to match the radiological features for treatment by surgery);
(b) without the work-related activity, the Appellant would have developed the same symptoms, including the pain running down his right arm, by March 2014; and
(c) the MRI report refers to the Appellant having asymmetrical annular bulging (a degenerative change that occurs to some extent in people by the age of 40) and, although it is possible that the bulge could have been aggravated by the work done by the Appellant in October- November 2013, the bulge appeared to be old and there was no evidence of any new pathology at that level.

[52] Consistently with his conclusions about the exacerbation (rather than aggravation) of the Appellant's underlying pathology, Dr Zeller revised (indeed appeared to depart from) his written opinion about the contribution of work-related activity to the Appellant's symptoms.
[53] In his report to the Respondent dated 23 September 2014, Dr Zeller took issue with the extent of the work-related aggravation ascribed by Dr Campbell (which Dr Zeller described as "excessive"), but he wrote:
"It would be my opinion that the work related component would be less than
50% contribution to the current symptomology"

and that

"the vast majority of this general and ongoing symptoms are related to the
long-standing pathology at C6/7" (Exhibit 5).

[54] When cross-examined in relation to that statement, he acknowledged that was what he had written but stated:
"I have no evidence that there is a work-related organic or structural change.
… I've said less than 50 per cent. If you like, I can say that I have no
evidence and … I would say zero per cent is related to the work accepted
injury."

When pressed about how that statement compared with his report of 23 September 2014, Dr Zeller said, "No, I said less than 50 per cent but zero per cent is less than 50 per cent." He was asked whether, in the course of cross-examination, his evidence that less than 50 per cent had become zero per cent. Dr Zeller said,
"Well, I have said less than 50 and I have no evidence to base any of it … on the
work-related injury so I would have to say zero, yes."
Conclusion
[55] Having considered the evidence as a whole in light of the legal propositions set out earlier, I am satisfied that the opinion of Dr Campbell (supported by the opinion of Dr Webster to the same effect) is to be preferred to the opinion of Dr Zeller. The medical opinions on which the Appellant relies are more consistent with the sequence of events which resulted in a man with a previously asymptomatic degenerative condition experiencing the ongoing and severe symptoms described in this case from November 2013. Dr Zeller's opinion seemed too rigid, both as to the time it must take for any exacerbation to abate or stop, and to the assertion that the Appellant's symptoms would have developed by March 2014 without the mechanism of heavy manual labour in October-November 2013. Dr Zeller offered no explanation as to why he thought the Appellant's asymptomatic condition would have become spontaneously symptomatic in that form by March 2014. Dr Campbell, while acknowledging that such an aggravation would ordinarily resolve within three to four months, allowed that some individuals take much longer to recover. He also was willing to apportion the amount to which the aggravation contributed and give an explanation of how he arrived at that estimate. Dr Zeller, while initially differing as a matter of degree from Dr Campbell's estimate, altered his opinion so that no symptoms were attributable work-related injury as at March 2014. His explanation was simply that, in the absence of imaging evidence of work related injury, such injury could not have occurred. That opinion seemed at odds with the possibility that the ongoing aggravation might not show on such imaging, and with the evidence that there seems to have been no significant change to the symptoms experienced by the Appellant throughout the period from November

[56] My conclusion is consistent with some judicial pronouncements about aggravation

9

of pre-existing injury. In Plening v Workers' Compensation Board of Queensland,
a former President of the Queensland Industrial Court, de Jersey J (as his Honour
then was), quoted with apparent approval a statement by Evatt and Sheppard JJ in
10

Commonwealth v Beattie that "pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place."
[57] The effect of that conclusion is that the Appellant has discharged the onus of proof and in entitled to a finding in his favour.
[58] The appeal is allowed. The decision of the Respondent dated 10 July 2014 is set aside. The Appellant's application for compensation under the Workers' Compensation and Rehabilitation Act 2003 is one for acceptance. The Respondent is to pay the Appellant's costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.

[59] Order accordingly.
1

Ramsay v Watson (1961) 108 CLR 642, 645 (Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ); see also

Adelaide Stevedoring Company Ltd v Forst (1940) 64 CLR 538, 563-4 (Rich ACJ); Chattin v WorkCover

Queensland (1999) 161 QGIG 531, 532-3 (Williams P), quoting Obstoj v Van de Loos (Unreported, Supreme

Court of Queensland, Connolly J, 16 April 1987).
2
Holtman v Sampson [1985] 2 Qd R 472, 474 (DM Campbell, Macrossan and Thomas JJ).
3

Commissioner of Police v David Rea [2008] NSWCA 199, [8] (Handley AJA, with whom Allsop P and

Johnson J agreed), quoting EMI (Australia) Limited v Bes (1970) 44 WCR 114, 119 (Herron CJ); see also

Chattin v WorkCover Queensland (1999) 161 QGIG 531, 532 (Williams P), quoting Fernandez v Tubemakers

of Australia Ltd [1975] 2 NSWLR 190, 199-200 (Mahoney JA).

Monroe Australia v Campbell (1995) 65 SASR 16, 27 (Bollen J), quoting Sotiroulis v Kosac (1978) 80 LSJS

112 (Wells J).
5

Holtman v Sampson [1985] 2 Qd R 472, 474 (DM Campbell, Macrossan and Thomas JJ), quoting Joyce v

Yeomans [1981] 1 WLR 549, [1981] 2 All ER 21, 27, (Brandon LJ).
6

Monroe Australia v Campbell (1995) 65 SASR 16, 27 (Bollen J), quoting Sotiroulis v Kosac (1978) 80 LSJS

112 (Wells J).
7
Monroe Australia v Campbell (1995) 65 SASR 16, 27 (Bollen J), quoting Sotiroulis v Kosac (1978) 80 LSJS
112 (Wells J).
8
Rossmuller v Q-COMP (C/2009/36) - decision [2]; State of Queensland
(Queensland Health) v QComp and Beverley Coyne (2003) 172 QGIG 1447; Qantas Airways Limited v QComp
(2006) 181 QGIG 301.
9
Plening v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181, 1182.
10

Commonwealth v Beattie [1981] 35 ALR 369, (1981) 53 FLR 191, 201.

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Tyson v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 191

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Gardner v Workers' Compensation Regulator [2021] QIRC 198

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Gardner v Workers' Compensation Regulator [2021] QIRC 198

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Commissioner for Government Transport v Adamcik [1961] HCA 43

Ramsay v Watson [1961] HCA 65

Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45

(a)	a cortisone injection to the appropriate nerve root; or
(b)	surgery, being an anterior cervical discectomy and fusion at C6/7.

(a)	for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury;
…
(2)	Injury includes the following -

"(a)	the entitlement of the worker to weekly payments of compensation under part 9 stops; and
(b)	medical treatment by a registered person is no longer required for the management of the injury because the injury is not likely to improve with further medical treatment or hospitalisation."

(d)	the issue will not be resolved by counting witnesses;[4]
(e)	the finding could be described as one based on the credibility of expert

problem;	and
(g)	if it is open to the tribunal to prefer one body of evidence to the other on

(a)	Dr Campbell, a neurosurgeon;
(b)	Dr Webster, a neurosurgeon; and
(c)	Dr Zeller, an orthopaedic surgeon.

(a)	the C6/7 disc osteophyte is a bone or calcification deposit that has built up over a disc bulge; it is associated with aging and develops over time (usually at least two to five years);
(b)	the annular disc bulge associated with the osteophyte may have been the same size before the work-related activity that resulted in the Appellant's symptoms;
(c)	the CT scan report did not show any signs of obvious trauma;
(d)	without a pre-injury scan it is not possible to say whether the size of the disc bulge could be related to the longstanding degenerative change or more recent trauma and, in particular, whether it increased in size as a result of the work-related activity.

(a)	right sided C6/7 aggravation of cervical spondylosis with his background disc osteophyte complex; the pre-existing condition was asymptomatic until the repetitive heavy manual tasks over six to seven weeks (Dr Webster, 21 February 2014, Exhibit 2);
(b)	aggravation of the cervical spine degeneration and possible entrapment of the right C7 nerve root, with work duties having aggravated a pre- existing but asymptomatic cervical spine degeneration (Dr Zeller, 23 March 2014, Exhibit 5);
(c)	musculo-skeletal injury of the cervical spine with aggravation of pre- existing asymptomatic right C6/7 disc osteophyte complex, sustained as a result of performing repetitive and intensive manual handling tasks at work from early October 2013 (Dr Campbell, 28 July 2014, Exhibit 4). (emphasis added)

(a)	for genetic or constitutional reasons some people are more pre-disposed to wear and tear damage, such as osteoarthritic changes to their cervical spine;
(b)	in his opinion there was a strong link between the heavy labouring activities performed by the Appellant in October-November 2013 and his neck injury, so that the Appellant "sustained a neck injury as a result of performing those work tasks" most probably as the result of an aggravation of an existing disc osteophyte;
(c)	when he saw Dr Zeller in March 2014, the Appellant had ongoing symptoms, the most likely cause of which was the neck injury that occurred at work;
(d)	the aggravation of the Appellant's injury has not ceased;
(e)	about 80 per cent of people who had an acute event at work (like that experienced by the Appellant) will have their symptoms resolved over three to four months, another 10 per cent would take one to two years and the remaining 10 per cent would enter a chronic phase of neck pain and symptoms;
(f)	the work injury represents 70 per cent of the Appellant's current symptomology and the pre-existing right C6/7 disc osteophyte represents 30 per cent of his injury;
(g)	because the symptoms could not be attributed to a single event (but rather occurred after about six weeks of heavy labouring work), he had regard to external factors when allocating those proportions and considered that the pre-existing asymptomatic disc osteophyte played a minor role in the overall injury;
(h)	although an asymptomatic disc osteophyte can become symptomatic as part of a person's natural history, that is unlikely and it is more likely that it will become symptomatic if there is an associated event.

(a)	had the Appellant not performed the heavy labouring work in October- November 2013, his neck "would not have become symptomatic in the foreseeable future";
(b)	the pre-existing disc osteophyte makes the Appellant more susceptible to an injury to the neck than someone who does not have a disc osteophyte at the same age, and there is a more than 50 per cent likelihood that the Appellant's work expectancy would be reduced by about five to seven years.

"Q8	(a)	Is the injury an aggravation of a pre-existing condition?
By definition, he has a pre-existing condition because he has cervical spondylosis. Cervical spondylosis does include disc osteophyte complex. He has been asymptomatic until the point of his injury, and this represents clearly an aggravation of cervical spondylosis.
(b)	If so, indicate what treatment is for the work-related component and what point ongoing treatment will be to treat the pre-existing condition?
His treatment will require an anterior cervical discectomy and fusion at C6 and C7. The premise of the third part of the question seems rather esoteric."

"6.	It is my belief that the work duties as described have aggravated the cervical degeneration.
7.	The work-related condition is an aggravation of a pre-existing but asymptomatic cervical spine degeneration."

(a)	Dr Campbell's conclusion that the Appellant's pathology at the C6/7 condition would not have become symptomatic if he had not undertaken the heavy manual work; and
(b)	Dr Campbell's attribution of 70 per cent of the Appellant's clinical condition to the work related injury,

(a)	although the Appellant had a period of increased symptoms, there was no "objective evidence" (i.e. something recorded on an x-ray, CT scan or MRI) of any structural new pathology or structural change to the pathology of the Appellant's cervical spine which would be attributable to work-related activity, in other words, there is "no objective evidence in his imaging" that there has been a "recent traumatic injury to his neck";
(b)	although work of the type engaged in by the Appellant in October and November 2013 could exacerbate a previously asymptomatic condition, it is "generally accepted" that the exacerbation to the Appellant's injured neck would abate or stop within three months of the activity that gave rise to the symptoms;
(c)	the Appellant's ongoing symptoms (as described to Dr Zeller in March 2014) are related to his underlying pathology; and
(d)	because there has been no structural change in the Appellant's underlying pathology, there has been no aggravation, although there was an exacerbation of his condition.

(a)	if a soft tissue injury is not shown on a scan he would have no evidence of an injury, even though a patient reports the injury (because, Dr Zeller said, the clinical features have to match the radiological features for treatment by surgery);
(b)	without the work-related activity, the Appellant would have developed the same symptoms, including the pain running down his right arm, by March 2014; and
(c)	the MRI report refers to the Appellant having asymmetrical annular bulging (a degenerative change that occurs to some extent in people by the age of 40) and, although it is possible that the bulge could have been aggravated by the work done by the Appellant in October- November 2013, the bulge appeared to be old and there was no evidence of any new pathology at that level.