Yarrabee Coal Company Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) - [2014] QIRC 156

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Yarrabee Coal Company Pty Ltd v Simon

Blackwood (Workers' Compensation Regulator)

[2014] QIRC 156

PARTIES:

Yarrabee Coal Company Pty Ltd

(Appellant)

Simon Blackwood (Workers' Compensation
Regulator)

(Respondent)

CASE NO:

WC/2013/257

PROCEEDING:

Appeal against a decision of the Regulator

DELIVERED ON:

2 October 2014

HEARING DATE:

14 March 2014

17 April 2014 (Written Submissions - Respondent)
24 April 2014 (Written Submissions -Appellant)
19 August 2014 (Further Hearing)

MEMBER:

Deputy President Kaufman

ORDERS :

1.	Appeal allowed.
2.	The decision of the respondent dated

15 July 2013 is set aside.
3. Ms Cashman's application for compensation under the Workers' Compensation and Rehabilitation Act 2003 is rejected.
4. The respondents are 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 - APPEAL AGAINST DECISION - whether the injury arose out of or in the course of employment - whether employment was a significant contributing factor - onus - medical evidence
CASES:	Workers' Compensation and Rehabilitation Act 2003
s 11, s 32
State of Queensland (Queensland Health) v Q-Comp
and Beverly Coyne [2003] QIC 118
JBS Australia Pty Ltd v Q Comp (C/2012/35 –
Pleming v Workers Compensation Board of
Queensland (1996) 152 QGIG 1181
APPEARANCES:	Mr J. Dwyer, Counsel instructed by CBP Lawyers, for the Appellant Mr A. McLean Williams, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator)

Reasons for Decision

[1] This is an appeal by Yarrabee Coal Company Pty Ltd ("the Appellant") against a decision of the Review Unit, Q-COMP to confirm an earlier decision of WorkCover Queensland to accept an application for worker's compensation under the Workers' Compensation and Rehabilitation Act 2003 ("the Act") by an (now former) employee of the company, Ms Veronica Cashman.
[2] Since the making of the claim for compensation, the Act has been amended with the result that Q-COMP has been abolished and replaced by the Respondent, the Workers' Compensation Regulator, Simon Blackwood (the Regulator).
The Appeal
[3] Ms Cashman was employed by the Appellant as a "dump truck driver" at a mine
located near Blackwater. She commenced employment in approximately 2010, and
1

resigned in April 2013.
[4]     On or about 6 February 2013, an Application for Compensation was lodged by Ms Cashman with WorkCover Queensland for an injury claimed to have occurred during the course of her normal duties.
[5]     On or about 11 March 2013, WorkCover Queensland accepted her claim in respect of an injury, plantar fasciitis.
[6]     On or about 15 July 2013, the Regulator (having received an application for review on 11 June 2013) wrote to the Appellant to inform it that the Regulator had confirmed the decision of WorkCover Queensland to accept Ms Cashman's application.
[7]     On 6 August 2013, the Appellant filed a notice of appeal against the decision of the Regulator. I heard the matter on 14 March 2014. Mr J. Dwyer, of Counsel appeared for the Appellant and Mr A. McLean Williams, of Counsel appeared for the Regulator. Final submissions were filed on 17 and 24 April 2014, following which I directed that the matter be relisted for the purpose of hearing submissions in relation to the nature of an appeal against a decision of the Regulator. That hearing took place on 19 August 2014. Both parties accepted that the position is as described by

Hall, P in State of Queensland (Queensland Health) v Q-Comp and Beverly Coyne.
I am bound by these decisions.
Issues for Determination in the Appeal
[8] Section 32 of the Act, as it was at the relevant time, relevantly provides:
"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;
…."

[9] It is conceded by the Appellant that Ms Cashman was a "worker" within the
definition of that word in s 11 of the Act, and that she sustained a personal injury in

her right foot; namely plantar fasciitis.
[10] Those matters having been conceded, the issues for determination in this appeal are whether the requirements of s 32(1) and (3) have been established.
[11] Mr McLean Williams conveniently summarized how the courts and this commission have developed the law relating to the matters in issue in this appeal:
"'…Arising out of'
10. Lackey v WorkCover Queensland; WorkCover Queensland v Curragh Mining Pty Ltd; and Avis v WorkCover Queensland are the standard authorities usually cited in reference to the meaning of the expression "arising out of" as used in s 32(1) of the WCRA.
11. In Lackey, President Hall said, in part:
'the test posited by the words 'arising out of" is wider than that posited
by the words 'caused by'… the former phrase, although it involves some
causal or consequential relationship between the employment and the injury, does not require the direct or proximate relationship which would be necessary if the phrase were 'caused by'.'

'…Or in the course of'
12. Use of the alternate expression in s 32(1) 'or in the course of employment' connotes a temporal relationship, between the injury and the employment. Yet, the authorities tell us that it connotes more than this. It is not enough to establish some temporal relationship between the injury and employment, or that the workplace is simply the context or setting in which the injury occurs. In this sense, employment must be 'more than the backdrop' for the occurrence of, or aggravation of an injury.
13. In WorkCover Queensland v BHP (QLD) Workers' Compensation Unit,

President Hall explained the requirement in these terms:
'In Charles R. Davidson v McRobb [1918] AC 304 at 321 Lord Dunedin put the matter in this way: 'In my view, 'in the course of employment' is a different thing from 'during the period of employment'. It connotes, to my mind, the idea that the workman or servant is doing something, which is part of his service to his employer or master. No doubt it need not be actual work, but it must, I think, be work or the natural incidents
connected with the class of work…'"

Significant Contributing Factor
14. As well as [Ms Cashman's] injury having arisen 'out of, or in the course of [her] employment', employment must also have been 'a significant contributing factor' to the fact of that injury. That this is so is because of the qualifying conjunction, 'if', as used in s 32(1) of the WCRA.
15. The term 'significant' should in this context be attributed the meaning explained by President Hall in QANTAS Airways Limited v Q-Comp and Blanch ([2009] QIC 20). 'Significant' qualifies the expression 'contributing factor' and, although not to be taken as meaning 'large', 'great' 'weighty' or 'substantial', is still a concept that may be understood to mean: 'of importance'; and/or 'of consequence' to the occurrence of the injury.
16. In relation to the issue of whether employment was 'a contributing

factor', the matter was put by Windeyer J in Federal Broom Co Pty Ltd v
Semlitch (at 641) in these terms:

'When the Act speaks of 'the employment' as a contributing factor it refers not to the fact of being employed, but to what the employee in fact does in his employment. The contributing factor must, in my opinion, be either some event or occurrence in the course of employment or some characteristic of the work performed or the condition in which it was performed.

17. In Croning v Workers' Compensation Board of Queensland de Jersey P

(as he then was) held that employment needed to be 'a real, effective cause' of
the injury, not merely the setting or background in which the injury occurred.

18. In Newberry v Suncorp Metway Insurance Ltd (2006) QCA 48 Keane JA (as he then was), and with whom each of de Jersey CJ and Muir J agreed, said:
'… 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 the employment. It cannot, in my respectful opinion, sensibly be read as lessening the stringency of the latter or increasing the stringency of the former'
19. In Carman v Q-Comp (2007) 186 QGIG 512 at 513, President Hall said:
'It must be remembered that Pleming v Workers Compensation Board of
Queensland (1996) 152 QGIG 1181 … does not decide that a worker
afflicted by a degenerative back suffers an injury if the back becomes painful at work. Neither does Pleming 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 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.'"

[12] Mr Dwyer accepted that the authorities cited by Mr McLean Williams are not
controversial, but added that it is in their application to this matter that the dispute

between the parties arises. He referred to JBS Australia Pty Ltd v Q Comp where
Hall, P again summarized the established principles:
"I should say to begin with that, I accept that the employment must significantly contribute to the occurrence of the injury. It is insufficient to establish that the employment was the setting in which the aggravation occurred or the background to its occurrence, compare Croning v Workers' Compensation Board of Queensland, at 101 per de Jersey P. It must be shown to be more probable than not that there is a significant causal relationship
between the accident and the worker's post-accident condition…".
[13]  In my view, Mr McLean Williams has accurately summarized the relevant legal principles.
Hearing de novo/Onus of Proof
[14]  It seems to be generally accepted that Pleming [5] established that appeals of this kind are treated as hearings de novo, but that where an employer is the appellant, it bears the onus to establish that the claim is one for rejection.
[5]
[15]  There is a tension between these two propositions. Generally a hearing de novo proceeds as a retrial and the applicant at first instance would be required to make good his or her claim. But Ms Cashman is not a party to the appeal. Nor was the employer a party in the first instance deliberation by WorkCover Queensland, albeit it was the applicant for review by Q-Comp and appeals against Q-Comp's decision. In the usual manner of conducting a hearing de novo, I would need to be satisfied, on the balance of probabilities, that Ms Cashman's personal injury arose out of, or in the course of, her employment and that the employment was a significant contributing factor to the injury. However, applying Pleming, it seems to me that, this being an appeal brought by the employer, unless I am satisfied on the balance of probabilities that Ms Cashman's personal injury did not arise out of, or in the course of, her employment or that the employment was not a significant contributor to the injury, I must be satisfied that Ms Cashman's injury falls with s 32(1). Indeed, Mr Dwyer, for the appellant, accepted that his client bore the onus of so establishing.
Background and Injury
[16]  Ms Cashman commenced employment with the Appellant in approximately 2010
and was employed as a "dump-truck" driver, working a seven day "on" and seven
6

day "off" cycle roster. During the "on" cycle periods, Ms Cashman would work

12 hour shifts, with two 30 minute breaks. As her usual place of residence was in
Rockhampton, Ms Cashman lived, at a house/campsite at Blackwater during the
8

"on" cycle.

[17] During her "off" cycle periods in Rockhampton, Ms Cashman would spend time

9

"recouping", doing housework, and seeing friends. Ms Cashman would also
engage in what can best be described as light exercise, walking with a friend
10

throughout the town. She also briefly participated in a work-based exercise

program/challenge, however had to stop after only a few attempts to participate.
[18] Ms Cashman operated a very large vehicle of 180-200 tonnes from a cabin that is
elevated from the ground, requiring her to use a ladder (and later stairs) to access the
12

cabin. As a requirement of her employment, she wore ankle-high steel capped
13

boots.
[19] During the course of each shift, Ms Cashman would be required to keep the
accelerator fairly constantly depressed. The nature of the operation of the vehicle
meant that the brake pedal was not often utilized, and an alternate hand control was
14

preferred to control the speed of the vehicle.
[20] In May 2012, Ms Cashman started to notice soreness in her heel and foot; first only
after removing her work boot at the completion of her day, and then subsequently
15

during work hours. The nature of the pain was such that she needed to stretch and
rotate her foot, and even stand outside the cabin in order to stretch her legs and calf

muscle in an attempt to ease the discomfort to both her foot, and calf muscle.

[21] Ms Cashman said that the pain she experienced worsened substantially around

17

September and October 2012, expanding from the heel of the foot to the entire
18

bottom surface of the foot and that this continued to approximately September
2012, after which time she saw a chiropractor and then a podiatrist to seek relief.
19

She was unsuccessful in obtaining any significant relief.
[22] Ms Cashman travelled overseas for a period of approximately three weeks in
mid-to-late October 2012. She travelled to South-East Asia, in particular Cambodia
and Vietnam, where she participated in a tour which involved staying in the homes
20

of locals and visiting temples and other areas of interest. She said that she
experienced severe (and at times, excruciating) pain and substantial swelling of her

foot, which largely restricted her to small periods of walking before having to rest.
As a result of this pain, she was not able to participate in a significant, if not a

majority, of the activities of the tour.
[23] In early December 2012, Ms Cashman spoke to a doctor, on two occasions[23]
[23]
regarding the condition of her foot. Ms Cashman was told to have time off work to
24

rest her foot. She subsequently took two to three weeks off. Upon her return to
work, the pain continued, to such a degree that she needed another day off during
25

her "on" cycle.
[24] On 7 January 2013 Ms Cashman notified Ms Amanda Campbell, an occupational
health and safety advisor for the Appellant, by email as to the nature of her
26

condition.

[25] The email of 7 January was first time that the nature of her injury was disclosed in

27

detail to the Employer. Ms Cashman had previously discussed experiencing
problems with her foot with her managers in December 2012, following her return
28

from her holiday.

[26] From early January 2013 onwards, Ms Cashman was largely confined to "light

29

duties", interspersed with short periods of truck driving duties. She said that the

"light" duties on which she was placed did little to assist or abate the foot pain.
[27]  On 6 February 2013, Ms Cashman lodged an application with WorkCover Queensland. She resigned from her employment on 16 April 2013.
The Medical Evidence
[28]  It is common ground that this appeal falls to be decided according to whether I favour the medical evidence called by the Appellant or that called by the Regulator.
[29]  Ms Cashman's general practitioner referred her to an orthopaedic surgeon,
Dr Glenn Gomez, who saw her on 12 February 2013 and confirmed the diagnosis of
plantar fasciitis. He provided a report on 20 March 2013 in which he opined that his
diagnosis was "that her plantar fasciitis has been aggravated by work and this
remains the only work related condition." However, somewhat puzzlingly, he went
on: "From Veronica's history she had no symptoms that could be attributed to
plantar fasciitis prior to commencing her work driving trucks. Based on this history
I do not feel that this is an aggravation of a pre existing condition but a condition
31

which has been caused by her current employment." [My emphasis]
[30] On 21 February 2013, Ms Cashman's GP, in answer to written questions from WorkCover Queensland noted that Ms Cashman has been diagnosed with
"plantar fasciitis with fibromas, which is most commonly associated with repetitive stretching movement of the foot. Veronica is persistently using her truck accelerator with her right foot".

When replying to the question whether extensive walking and/or clinical obesity
could be a likely cause of Ms Cashman's injury, the doctor was unable to comment
but considered that using the accelerator repetitively would certainly aggravate the
32

condition.
[31] The Appellant relies in particular on the evidence of Dr Terence Saxby, an
orthopaedic surgeon of some 20 years' experience, to establish a lack of causal link
between the work performed by Ms Cashman and her injury. In his report, dated
33

20 February 2014 Dr Saxby, who did not see Ms Cashman, opines that the most likely diagnosis of Ms Cashman's condition (based on the medical reports forwarded to him) is "plantar fasciitis". However, Dr Saxby goes on to say that he "finds it difficult to understand how repetitive use of control pedals in a vehicle could exacerbate plantar fasciitis, or aggravate this condition." It was his opinion that the
repetitive action performed by Ms Cashman may actually be beneficial. "… I would
have thought that pushing your foot up and down on a pedal may have actually even
34

helped her rather than making things worse."
[32] The Regulator relies heavily on the evidence of Dr Gomez, to whose report I have referred in paragraph 29.
[33] When asked about his apparently inconsistent conclusions – aggravation versus
causation - Dr Gomez said:
"Do you appreciate that there's a complete contrast in those two conclusions?-- Well, I appreciate the semantics in that certainly plantar fasciitis is aggravated by her work. Now, when you want to then make that as complete distinction of it's an aggravation of a pre-existing condition or it's a condition caused entirely by her employment. So - - -
Can you make that distinction, Doctor?---Sorry?
Can you make that distinction?---Well, the distinction – the – the – what is
meant by the comments is that certainly her work aggravates the plantar fasciitis, but she did not have this as a pre-existing condition prior to her employment based on her symptomatology. Therefore, her work has caused
35

the condition and continues to aggravate it."

[34] Whilst accepting that plantar fasciitis is common in people aged between 40 and 60 (Ms Cashman was 59), especially people who are on their feet a lot, Dr Gomez, in examination-in-chief said:

"And a truck driver working at one of the coal mines in Queensland driving a
very large dump truck on a seven on, seven off shift, and, during the seven
days on, would spent 12 hours a day working, 11 of those driving a truck. Is
this presentation somewhat unusual, given what you've just told us?---It is
slightly unusual. However, what is postulated with regard to the evolution of
plantar fasciitis is that – that the repetitive plantar flexion mechanism
producing a tensile force within the plantar fascia, which leads to micro
tearing of this structure - - -
Yes?--- - - - and then the inflammation. So, whilst driving a truck would be
not a particularly common cause for this, driving a truck is – does require
repetitive plantar flexion mechanism, the same as if you were running,
dancing, walking, etcetera.
All right. Now, plantar flexion, in laymen's terms: that's pointing the toe, isn't it?---Pointing the toes downwards.
All right. So pushing the foot away from the shin ?--- - - -Correct.
- - - is plantar flexion?---Correct. And dorsiflexion is covered in the other
direction?---It's the opposite. So bringing the toes back towards the shinbone.
So is it the case that the mechanism of injury is related to that particular
mechanical movement, being plantar flexion?---It's – that's one of the

postulations in the evolution of plantar fasciitis: repetitive plantar flexion."

[35] When asked to comment on Dr Saxby's report Dr Gomez said:
"All right. Have you seen the opinion expressed by Dr Saxby?---I have.
What do you have to say in relation to that?---Look, I think some of Dr Saxby's
points are valid, but I - I - the one thing that …, I didn't agree with, was that -
it's - regarding the plantar fascia stretching exercise as a treatment for plantar fasciitis; I agree with that. But the mechanism for a plantar fascia stretch is the reverse of plantar flexion; it's dorsiflexion in order to stretch the plantar fascia. So that, I thought, was sort of in distinction to the plantar flexion, which is the causative mechanism.
So plantar flexion: that is pointing the toe away from the shin?---Correct.
Is the mechanism that causes this condition?---Correct.
And the rehabilitative motion to correct the condition is the other way?--
Correct.
In a sense that the person stretches - - -?---Yeah. - - - in a dorsi direction?---
They're – they're pushing their toes back towards their shin and holding that
stretch in order to stretch out the plantar fascia, which runs, essentially, from
the bottom – the sole of the foot from the heel bone to the ball of the foot.
In the matter of driving a large truck, might a person engage in both those movements?---They would, but the predominant movement, I would expect, would be plantar flexion. Even if they were dorsiflexing, their dorsiflexion would bring the foot back to a relatively neutral position, but not significantly beyond, and there's a predominant pushing on the accelerator and brake and changing that over would be predominant to plantar flexion versus dorsiflexion.
In layman's terms, is that the same as applying force and then relaxing?---
37

Correct"
[36] In cross examination, the doctor goes on to say:
"I understood you to say that you regarded that some of his points were valid,
and I understood you to say that the only one that you, essentially, took any
real issue with is Dr Saxby's comment about the operation of the pedals being
beneficial to the condition?---Mmm.
All right?---I also think it's difficult to say that the – that her work has had no
influence in the evolution of the symptoms. I do, however, agree with Dr
Saxby's sentiment that it's a common condition, that it's generally self-limiting and that, over a period of 12 to 18 months, it often settles, and we did see that over a period of less than that Veronica's symptoms settled with little more
than a corticosteroid injection to the area, a plantar specific stretching program
and some gel cushion heel pads, which are the common and well known
38

conservative management modalities."

[37] And later:

"You'd have to agree, though, wouldn't you, that that militates quite strongly against the mechanism of injury being credible and reliable in this particular case?---No, I don't, because, if you think about it from a biomechanical point of view, it's very well known and well regarded that repetitive plantar flexion is a causative mechanism for plantar fasciitis. Now, if you think about
repetitive use of an accelerator pedal, it's difficult to refute the fact that that's
repetitive plantar flexion. Now, whilst I understand that, yes, it may be
uncommon, if you want to put it into semantics of repetitive use of an
accelerator pedal, but certainly, if you think of it from a biomechanical point
of view, rather than a functional point of view, repetitive plantar flexion is
required in the role that Veronica partakes in every day at work, and it is very
well known that repetitive plantar flexion is a causative mechanism for plantar
fasciitis.
Plantar flexion, in – specifically in the context of operating an accelerator, is
something that most people do every day, isn't it?---Not for 12 hours a day,

constantly, for seven days on – on – on the trot." [39]
[39]
[38] Doctor Saxby maintained his view when presented with that of Dr Gomez. He said:
"I don't agree that it was caused by current employment. I don't know what basis he's [Dr Gomez] made that opinion on. I'm not aware of any articles or science to support the mechanism injury would cause plantar fasciitis, so that opinion is formed but I can't follow the basis on which it's made. So I don't share that opinion. I think that's not correct.

As regards aggravated by work. Plantar fasciitis is a - most people it's a pre-
existing or a constitutional problem and if you're on your feet at work it can
make the symptoms worse. So, you know, I would accept that - I mean, I'd
make that diagnosis sometimes, not infrequently that they have an underlying
problem and work has aggravated it, but in this situation in which this person's
seated and just - seated and driving a vehicle, I don't believe I don't believe that

work would even aggravate it. So I don't share that opinion either."
[39] In the course of cross examination however, the doctor said that the condition is not
fully understood and that ascribing a certain mechanism "to causing it is very
41

difficult and it won't be just one single thing that causes this condition"
[40]   Mr Dwyer called Ms Amanda, an occupational health advisor with the Appellant and Ms Kaitlyn Grace McCallum, an occupational therapist. Their evidence has assisted me in understanding the physical environment in which Ms Cashman worked.
[41]   As I stated earlier, it is common ground that this appeal falls to be decided according to whether I favour the medical evidence called by the Appellant or that called by the Regulator.
[42]   Ms Cashman's evidence, and the case for the Respondent, is that the first instances of pain associated with the injury she suffered occurred after the conclusion of her work shifts. This pain worsened substantially towards the end of 2012. In mid-to late October 2012, Ms Cashman travelled overseas, and continued to suffer severe pain.
[43]  The Appellant submits that such evidence is inconsistent with, if not fatal to, Dr Gomez's conclusions in respect of the mechanism of the operation of the accelerator pedal by Ms Cashman.
[44]  It is the Appellant's submission that the worsening of the condition over these periods, particularly during the overseas travel, is indicative of an error in Dr Gomez's conclusion; being that Ms Cashman's symptoms should have abated in the absence of the alleged aggravating factor of her employment.
[45]  The Appellant further submits that the contradictory evidence Dr Gomez gave about whether the injury was caused by the employment or merely aggravated by it and his unsatisfactory rationalization in relation thereto fatally undermines his conclusions.
[46]   The Appellant submits that I should prefer the evidence of Dr Saxby who, it submits, is the preeminent orthopaedic expert on conditions of the foot and ankle with extensive experience of treating or diagnosing over 3000 patients during a career as an orthopaedic surgeon specializing in diseases of the foot and ankle over 20 years.
[47]  Dr Saxby had never experienced a case of plantar fasciitis arising in circumstances similar to those of Ms Cashman. He did not believe that the fact that he had not examined her detracted from his opinion. He also frankly conceded that he causes of plantar fasciitis are still somewhat of a mystery, but rejected Dr Gomez's view that repetitive plantar flexion whilst depressing an accelerator pedal could cause or aggravate plantar fasciitis. He distinguished plantar flexion in such a situation from that associated with walking or running which are the more common situations where plantar flexion is associated with the onset of plantar fasciitis.
[48]  Dr Saxby was not impressed with Dr Gomez's theorizing that the mechanism of dorsiflexion whilst depressing an accelerator could be causative of Ms Cashman's condition.
[49]  Mr Dwyer noted Dr Gomez's relative inexperience of one year as an orthopaedic specialist as opposed to Dr Saxby's 20 years.
Consideration
[50]  Having regard to the medical evidence, I could not be satisfied on the balance of probabilities that Ms Cashman's personal injury arose out of or in the course of her employment, let alone that the employment was a significant contributing factor to the injury. Whilst Dr Gomez's evidence demonstrates that it is theoretically possible that the injury was thus caused, it does not go beyond showing that it was possible that this was the case. Nor could I be satisfied that Ms Cashman sustained an aggravation of a pre-existing personal injury.
[51]   However, for the Appellant to succeed I must be satisfied that the personal injury did not arise out of or in the course of Ms Cashman's employment and that the employment was not a significant contributing factor to the injury, also that it was not an aggravation of the personal injury that arose out of or in the course of her employment and that the employment was not a significant contributing factor to any aggravation.
[52]   Dr Saxby was strongly of the view that operation of the accelerator pedal was not the cause of Ms Cashman's plantar fasciitis or that it contributed to any pre-existing condition. He gave cogent reasons for disagreeing with Dr Gomez. I prefer his evidence over that of Dr Gomez.
[53]  Although Dr Saxby conceded that the condition - plantar fasciitis is not fully understood, I am satisfied on the balance of probabilities that Ms Cashman's personal injury did not arise out of or in the course of her employment and that the employment was not a significant contributing factor to the injury. I am also satisfied that there was not an aggravation of the personal injury let alone that it arose out of or in the course of the employment or that the employment was a significant contributing factor to any aggravation.
[54]  It follows that the appeal is allowed, the decision of the Respondent dated 15 July 2013 is set aside and Ms Cashman's claim for workers' compensation is rejected.
[55]  The Respondents are 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.

[T1-9, Lines 14-46; T1-10, Lines 1-7].

State of Queensland (Queensland Health) v Q-Comp and Beverly Coyne [2003] QIC 118.

[T1-2, Lines 15-39].

4
JBS Australia Pty Ltd v Q Comp (C/2012/35 - [3].

Pleming v Workers Compensation Board of Queensland (1996) 152 QGIG 1181.
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[T1-11, Lines 5-26].

[T1-14, Lines 20-26].

[T-11, Lines 10-27].

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[T1-14, Lines 34-37].

[T1-32, Lines 1-18].

[T1-32, Lines 15-18].

[Exhibit A1].

[T1-32, Lines 25-30].

[T1-31, Lines 30-40].

[T1-32, Lines 25-45; T1-33, Lines 1-7].

[T1-32, Lines 38-42].

[Exhibit R2].

[Exhibit R4].

[Exhibit A4].

[T1-29, Lines 40 to 43].

[T1-45, Lines 45-47, T1-46, Lines 1-10].

[T1-43, Lines 12-39].

[T1-44, Lines 36-46, T1-45, Lines 1-19].

[T1-46, Lines 15-26].

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[T1-28, Lines 30 to 45].

[T1-30, Lines 35-45].

between the parties arises. He referred to JBS Australia Pty Ltd v Q Comp	where
Hall, P again summarized the established principles: