Zaia v Workers' Compensation Regulator
[2016] QIRC 102
•7 October 2016
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Zaia v Workers' Compensation Regulator [2016] QIRC 102 |
PARTIES: | Zaia, Jackleen v Workers' Compensation Regulator |
CASE NO: | WC/2015/270 |
PROCEEDING: | Appeal against a decision of Workers' Compensation Regulator |
DELIVERED ON: | 7 October 2016 |
HEARING DATES: | 26 May 2016 and 31 May 2016 (Brisbane) |
MEMBER: | Deputy President Swan |
ORDERS: | 1. The Appeal is dismissed. 2. The Appellant is to pay the Regulator's costs of, and incidental to the Appeal. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Workers' Compensation Regulator - Appellant had lower back injury - Accepted that Appellant had back injury but injury not work-related - No mention in medical records over time that back injury was work-related - Work-related claim only made when Suitable Duties Program reduced the hours worked and pay decreased - Appellant has not satisfied the onus of proof - Claim dismissed. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 St George Club v Hines (1961-62) 35 ALIR 106 Tubemakers v Fernandez (1976) 50 ALIR 720 Davie v The Lord Provost, Magistrates and Counsillors of the City of Edinburgh 1953 SC 34 |
| Kavanagh v The Commonwealth 103 CLR 547 Croning v Workers' Compensation Board of Queensland 156 QGIG 100 | |
| APPEARANCES: | Mr K. Boulton, Counsel instructed by Shine Lawyers, Solicitors for the Appellant. |
Decision
This Appeal is made by Ms Jackleen Zaia (the Appellant) against the decision of the Regulator dated 27 August 2015 to reject her claim for compensation.
The issue to be determined is whether the Appellant suffered, in or about January 2015, an injury as defined by s 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act), in the course of her employment and in relation to which her employment was a significant contributing factor.
The type of injury claimed by the Appellant is a lower back injury which occurred at her workplace sometime in or about January 2015 while lifting heavy objects. She states that this event caused an aggravation of a pre-existing condition of her lower back.
WITNESSES
Witnesses for the Appellant were:
· Ms Jackleen Zaia, the Appellant;
· *Dr Christian Schwindack, Neurosurgeon;
· Dr Grenville Thynne, General Surgeon (IME);
· Dr Babak Afshar Ebrahimi (Dr Afshar), General Practitioner;
· Mr Benjamin Ashor, the Appellant's partner; and
· Ms Juliana Shemaon, the Appellant's niece.
*NOTE: Dr Schwindack was called to give evidence but declined to participate in the hearing on the basis that he had not agreed to do so, and does not undertake medico‑legal work. His report was not tendered into evidence.
Witnesses for the Regulator were:
· Ms Renee Raven-Holt, Workplace Health & Safety Administration, Ozcare;
· Mr Peter Carlisle, Customer Advisor, WorkCover Queensland;
· Mr Rohan McKay, Senior Advisor, Health and Safety, Ozcare; and
· Dr Michael Coroneos, Neurosurgeon.
NATURE OF THE APPEAL
The Appeal is by way of hearing de novo and the Appellant bears the onus of proof on the balance of probabilities.
LEGISLATION
Section 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) provides as follows:
"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.
(2) …
(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;… "
THE CLAIM
The Appellant worked at Ozcare Parkwood (Ozcare), an aged care facility at the Gold Coast.
In mid-2011, the Appellant commenced work at Ozcare in a "Support services - kitchen and cleaner" position and was later employed as a permanent part-time employee working 40.5 hours per fortnight. She worked seven 4.5 hour shifts from 2.00 pm to 6.30 pm, three days one week and four days the next week. Saturday and Sunday work was a constant within those shifts.
The Appellant had made an Application for Compensation on 15 April 2015. The Appellant's claim was summarised as follows:
"That she had suffered an injury to her lower back lifting heavy objects at her place of work. The Appellant further stated that her injury happened while she was working at her normal workplace and that she was not certain of the date of the injury. It is recorded that she reported her injury to the director of nursing at her place of employment, named Libby, on the 26th March 2015". [Appellant's submissions, paragraph 9]
Specifically, the Appellant claims to have suffered an aggravation of a pre-existing lower back condition in January 2015, as a result of lifting loaded dishwasher trays out of the dishwasher at work.
MEDICAL EVIDENCE
General Practitioners
The Appellant states that she had complained of back pain to her General Practitioner a few months after commencement of work with Ozcare in 2011. She said she had not suffered any back pain prior to commencing work with Ozcare.
Her General Practitioner at that time was Dr Reda (Scarborough Medical Centre) who referred her for a CT scan of her back. The Appellant said she knew there was "something a little bit wrong" with her back but beyond that she had not understood what might have happened.
In 2013, the Appellant saw Dr Alizera Irannezhad (Biggera Waters Family Practice) and claims to have advised him that she had hurt her back when she had loaded and unloaded the full dish rack from the dishwasher at her workplace. She also claims to have complained of back pain when "trying to bend or push a heavy trolley" whilst at work. She said she had managed her pain through home treatments, Pilates and physiotherapy.
The only Medical Notes of Dr Alireza in 2013 that refer to the Appellant's back pain is that of 20 November 2013. Those notes state the following:
"She also has LBP and she is very stressed about here back pain that is mainly mechanical. There is no red flag on her exam she was reassured. I started pain killer, a few days off and then review again."
During 2013 and part of 2014 the Appellant continued to see Dr Alizera. She stated that her health issues at that time related to her right knee and low back pain from pushing heavy trolleys.
In June 2014 the Appellant saw Dr Babak Afshar Ebrahimi (Dr Afshar) for pain in her left shoulder. The Appellant claimed that while her back pain had continued throughout this period, she thought she may have mentioned this to Dr Afshar that her back pain was work-related.
On 30 July 2014, Dr Afshar's notes state "she suffers from low back pain on and off for a couple of years now".
On 13 January 2015 the Appellant again saw Dr Afshar whose notes record "recently she has had exacerbation of lower back pain and some radiculopathic pain in legs".
A medical certificate was issued by Dr Afshar on 15 April 2015. The Certificate showed that the Appellant had a long-standing condition of lower back pain and her underlying condition was diagnosed as "Multilevel lumbar spine degenerative changes and 3 level disk bulge".
On 15 April 2015, Dr Afshar issued a Workers' Compensation Certificate stating that the Appellant had sustained an injury to her back on 13 November 2013 and this date was referenced on the next three Worker's Compensation Certificates. Beside the reference to 13 November 2013, Dr Afshar had noted "not certain". Dr Afshar's evidence was
"… but she did not necessarily say that, okay, yeah, based on this one incident on this exact date this - this problem or lower back problem has happened on any specific day." [T1-132, 34-36]
Dr Afshar's Medical Notes for that day were:
"w/c she mentions that some time in late 2013 she came to Dr Ali after she had low back pain for a few days that was caused by lifting a heavy full dishwasher tray to put it on a shelf above her shoulder level. Since January 2015 her pain has exacerbated and now has radiculopathy". [Exhibit 2]
Similar comments were made by Dr Afshar on Medical Certificates issued in April, 17 May and 14 June 2015.
Exhibit 11 is a facsimile to WorkCover from Dr Afshar dated 17 April 2015. The Regulator submitted that:
"It is ambiguous in relation to whether his understanding was that the incident with the dishwasher occurred on 20 November 2013 or prior to 13 January 2015. However, in view of his oral evidence, contemporaneous medical records and WorkCover certificate, he had not been told of any work related incident in 2015 causing an increase in back pain as at 29 April 2015."
Upon the completion of her Workers' Compensation Application Form on 15 April 2015 (which the Appellant says she did not recall signing), she had agreed that she was uncertain as to the date of the injury. The application form stated that the cause of her injury was "lifting heavy object".
While the Appellant asserted that she might, on 15 April 2015 or an earlier date, have advised Dr Afshar that her injury was work-related, his notes do not record any mention of a work- related injury. At another point in her evidence, the Appellant stated that she had not advised Dr Afshar of her work-related injury. The Appellant added that she had not told Ozcare of her problems with her back or the cause of such problems for fear that she may not retain her job.
Dr Afshar said his practice was to record in his notes if an injury was described by a patient as a work-related injury.
Had the Appellant told him that her injury was work-related, Dr Afshar said he would have referred her for private medical treatment rather than sending her to the Gold Coast Hospital as he had done.
Medical Specialist Notes
Dr Grenville Thynne, General Surgeon, provided a medical report for the Appellant on 13 January 2016 [Exhibit 10]. The Appellant advised Dr Thynne that:
· On three occasions she had experienced an exacerbation of her underlying spinal pain. On each occasion she said she was lifting a tray full of kitchenware which she considered as being heavy.
· The occasions mentioned were in 2011, 2013 and January 2015.
· She had first injured her back after lifting a full tray of kitchenware in 2011. Dr Reda arranged for her to undergo a CT lumbar spine was on 26 October 2011. The report stated:
"Disc bulges shown mainly at the L3/4 level. Distortion of the laminar at the L4/5 and L5/S1 level. Degenerative change shown in the facet joint of L4/5 and L5/S1 level."
· The Appellant undertook physiotherapy but was able to continue to work.
· Further incidents of injury to her lumbar spine occurred in November 2013 and January 2015. For this she did not require time off work and managed on anti-inflamatory medication.
· In January 2015, the Appellant injured her back and her low lumbar pain extended and radiated to her right lower leg below the knee joint. Dr Afshar referred her for an MRI in February 2015.
· After being treated by a Chiropractor and Physiotherapist she returned to work on light duties and her hours were reduced by 5 hours per week based upon the recommendation and a Medical Certificate from Dr Afshar.
· The Appellant had been seen by a neurosurgeon at the Gold Coast Hospital concerning her lumbar pain and was advised that no operative treatment was indicated and she was recommended to continue with conservative management. As well, she was seen by Dr Price, a Pain Management Specialist at Southport Hospital and was recommended lumbar spine injections for her pain which she refused.
Dr Thynne's opinion was that the Appellant had sustained an aggravation of a pre‑existing condition of her lumbosacral spine "which were both developmental and degenerative disc and lumbar joint vertebral arthritis…".
He stated that the probable cause of her injury was that on three occasions she believed there was an exacerbation of her underlying spinal condition and on each of those occasions she was lifting a tray full of heavy kitchenware.
He noted that the Appellant had not complained of lumbosacral pain prior to commencing her employment with Ozcare in June 2011. Dr Thynne stated that:
"As your client did not complain of lumbosacral pain prior to commencing her employment with Ozcare in June 2011, in my opinion it is therefore probable that Ms Zaia's employment with Ozcare is a significant contributing factor to her aggravation injury". [Exhibit 10]
Dr Michael Coroneos, Consultant Neurosurgeon, provided a medical report on 27 July 2015. [Exhibit 18]
Dr Coroneos was told by the Appellant that her injury had occurred "roughly two years ago" (the date of her consultation with Dr Coroneos was July 2015). In the Medilaw registration form, in response to the question regarding the date of her accident/injury, the Appellant had written "… November/2013. January 2015. Low back getting worse with shooting to legs".
In the course of providing her immediate history (under the heading of "History of Accident/Injury"), the Appellant had advised Dr Coroneos that some two years previously she had experienced sharp pain in the lower back region and any bending or lifting activities would increase that pain. This pain was also experienced when vacuuming under resident's beds.
Dr Coroneos stated that in his Report under the heading "General History":
"She explained to me that at work if she tried to lift the dish rack this would increase her lower back pain and vacuuming under resident's bed also increased back pain and she tried keeling down to vacuum under residents' beds at the nursing home. She told me that over the last two years she began to feel 'pressure' in both legs.
"She told me that in January 2015, whilst lifting a dish rack, she experienced pain of a burning nature in the front of the right shin and she thought that there had been spilt boiling water on her right shin. She told me that she dropped the dish rack as she thought there may have been hot water in the dish rack, but this was not the case. She told me that since that time she has had tingling and pins and needles in the right and left shins increased by standing and sitting still, and reduced by walking." [Exhibit 18]
Dr Coroneos said that the Appellant had undertaken a CT scan in 2011, which he viewed. [T2-25]
Dr Coroneos states that he conducted a thorough examination of the Appellant, identifying in his Report all of the procedures and processes undertaken.
Dr Coroneos was unable to identify any "objective neurological deficit or lumbar nerve tension sign". He stated:
"I cannot determine why Mrs Zaia indicated that she was unable to demonstrate any lumbar flexion. There was no spasm, guarding or deformity. All the changes on CT and MR of the lumbar spine are of minor, non-neurocompressive lumbar spondylosis consistent with the 5th and 6th decades of adult life. There are no changes of trauma. She does have a large left pelvic adnexal mass which requires ultrasound (pelvic) and review by a specialist gynaecologist." [Exhibit 18]
Dr Coroneos said he could not find evidence of an injury in respect of the lifting of the dish rack in January 2015 and he could not find a neurological diagnosis to explain her presentation. He did, however, recommend that the Appellant be reviewed by a specialist gynaecologist as a consequence of her unexplained adnexal mass. Notwithstanding that view, he said those matters did not relate to the reported occupational activities.
The Appellant claimed that Dr Coroneos (together with other medical specialists) was told that Ms Zaia had suffered an exacerbation of her lower back pain and symptoms in the right leg while lifting loaded dishwasher trays at work. The Appellant states that Dr Coroneos had been provided with the following documents:
· Letter of instructions from WorkCover dated 8 July 2015;
· Medilaw patient information sheet dated 21 July 2015;
· Clinical records of BWFP;
· The Appellant's application for compensation dated 15 April 2015;
· Letter from Dr Afshar to Dr Sabat dated 29 June 2015; and
· Dr Afshar's response to WorkCover questions dated 29 April 2015.
The Appellant says that in all of those documents, reference had been made to a claimed injury to the lower back in the nature of an aggravation occurring at work in January 2015. However, it was claimed by the Appellant that Dr Coroneos had made no reference in his Report to such an injury occurring. The Appellant claims that Dr Coroneos has not explained this critical omission.
The Appellant added:
"…[he] repeats several times that he cannot identify any injury, cannot identify any neurological deficit and cannot make any diagnosis or neurological diagnosis of injury. That may be the case, but his inability to identify lower back injury is, it is submitted, to the fact that Dr Coroneos has not given any consideration to a low back aggravation." [Appellant's submissions paragraph 96]
To accept Dr Coroneos' evidence, the Appellant said one would have to accept that the Appellant did not advise him of any lower back pain and he did not enquire about any lower back injury. The Appellant said that it may also suggest that the documentation, previously cited, provided to Dr Coroneos was not considered by him.
When addressing the questions he was required to consider in Exhibit 19 (WorkCover Queensland's Request for Independent Medical Examination and Report), Dr Coroneos' evidence was that when asked what symptoms the Appellant had experienced in 2015, she had referred to an incident described as a burning sensation in the front of her right shin when lifting a dish rack. He noted that the ongoing effects of the incident were "… tingling and pins and needles in the right and left shins increased by standing and sitting still and reduced by walking".
In reviewing the evidence on this point, I find that the criticism of Dr Coroneos' opinion and actions are unwarranted.
Dr Coroneos, under the heading "Review of File and Conclusion" made reference in detail to the information he had taken from the various documents referred to him. That detail shows that he was fully award of the issues complained of by the Appellant. He had clearly referenced the Appellant's claim of lower back pain as a consequence of an incident which occurred in 2015 when lifting dish racks from the dishwasher at her workplace.
Dr Coroneos was asked by Counsel for the Appellant what information he had taken into account from the documents he had before him in forming his view of Ms Zaia. This question was asked because Dr Coroneos did not refer again to the incident as explained to him by the Appellant i.e. that she had experienced lower back pain as well.
Dr Coroneos explained that when he asked the Appellant what symptoms she had suffered in January 2015 "… she reported a burning pain down her right shin as if it was hot water". I have accepted Dr Coroneos' evidence that he accurately referenced the point being made by the Appellant in response to his question.
In my view, Dr Coroneos had considered all of the documentation put before him as well as the Appellant's claim. Dr Coroneos, in his final diagnosis, referred to the alleged injury and determined that in respect of the Appellant lifting the dish rack in January 2015, he was unable to find any evidence of injury in respect to that and was unable to find a neurological diagnosis to explain her presentation.
APPELLANT'S EVIDENCE AND SUBMISSIONS
The Appellant's reporting of a work-related injury to Ozcare
The Appellant's stated claim was that she was apprehensive about reporting her injury to Ozcare, but during her evidence said she had previously reported a work-related incident "way before 2015". [T1-88,89]
On 15 April 2015, the Appellant told Mr Rohan McKay of her work injury and he advised her to make a Workers' Compensation Claim [T2-16]. For the period between 26 March 2015 and 7 April 2015, Mr McKay's evidence was that the Appellant's injury was regarded as a non work-related injury.
The Appellant stated that she was unaware of the Workers' Compensation legislation and only applied for this after being advised to do so by Mr McKay.
Mr McKay said the Appellant had been upset about the change to her roster because of the implementation of the Suitable Duties Program. She had told him that she was unable to see a medical specialist concerning her back and was waiting on the public hospital list.
During that conversation of 15 April 2015, the Appellant said that the wait for a public hospital appointment was unfair as her injury was work-related. Mr McKay said this was the first occasion he had heard of her work-related injury. At the time of this discussion Mr McKay said the Appellant was unable to identify a cause or date of her injury. Mr McKay said that had spent a considerable period of time discussing with the Appellant her work duties but she had not mentioned any complaint about hurting her back while emptying and loading the dishwasher.
Upon hearing her claim of a work-related injury, Mr McKay advised the Appellant that she would need to lodge a WorkCover Medical Certificate and if her claim was successful then she would be able to see a medical specialist at an earlier time.
Mr McKay was advised by WorkCover that the Appellant had nominated March 2013, as the date of her injury. Mr McKay said that during 2014/15 employees had been advised to report any work-related injury on an Incident Report Form. The Appellant had not done this.
Mr McKay said it was only when the Appellant's roster changed to accommodate her Suitable Duties Program that she filed her Workers' Compensation Claim. In cross‑examination concerning an email from Mr McKay to Ms Cheryl Henderson of WorkCover on 19 May 2015, Mr McKay confirmed that he viewed the Appellant's motivation to lodge her claim as suspicions:
"And finally, you drew the conclusion that:
"This lady only decided to lodge a claim when we couldn't provide her with her full, normal hours. The motivation to lodge was financial".
?---That was my opinion at that – that was my opinion.
Yeah. That was your opinion. And you had grounds for being suspicious? --- Yes." [T2-67]
Ms Renee Raven-Holt (Workplace Health and Safety Administration officer) and Mr Peter Carlisle (WorkCover Queensland) gave evidence relating to discussions had with the Appellant. Ms Raven-Holt's contemporaneous notes do not record the Appellant reporting a date or nature of any work-related injury in January 2015.
In the Rehabilitation Case Notes of 30 April 2015 to 4 May 2015, Mr Carlisle's notes record the date of injury having occurred in March 2013. Mr Carlisle's notes also record that the Appellant had not advised Ozcare earlier because of a fear of losing her job [Exhibit 16].
The Appellant denied speaking to both Ms Raven-Holt and Mr Carlisle.
The Regulator queried the dates nominated by the Appellant in her claim stating that in the "Statement of Facts and Circumstances" the Appellant had identified an aggravation of her pre-existing degenerative lumbar spine condition as occurring "in or about late 2014", or alternatively, "in or about January 2015" as detailed in her Notice of Appeal.
Leave from Work and Suitable Duties Program
By January 2015, the Appellant said her back symptoms had become severe and her work was performed with difficulty.
The Appellant said she had taken holidays during February 2015 because of her back pain and she returned to work on 3 March 2015. Around that time she had undertaken an MRI examination. She had claimed that she did not want to create any concern at her workplace concerning her back pain until she received the outcome of her MRI scan.
The Regulator claimed that this evidence did not accord with the facts. The Appellant had not received her MRI scan until 8 February 2015 and she had made arrangements for her leave on 5 December 2014. In cross-examination the Appellant said her pain was getting worse in late 2014.
On 13 April 2015, after the Appellant had taken some time off work, she returned on a Suitable Duties Program which had been compiled by Dr Afshar. He said he had spoken with the Appellant for around 35 minutes discussing which work duties could or could not be performed by her. In that Program, Dr Afshar had identified the tasks that represented an increased risk of injury for the Appellant.
Dr Afshar said that if he had been told by the Appellant what had caused her injury at work, he would have mentioned this in the Program and that specific type of work would have been prohibited. This did not occur.
The Suitable Duties Program, whilst it makes no reference to loading and unloading the dishwasher as such, states, amongst other things, that "Due to her back problem, any activity involving bending, lifting >3 kg, standing still for more than 15 minutes must be avoided. Also pushing and pulling heavy trolleys best be avoided".
While being placed on this program, Ozcare had to revise the Appellant's roster to accommodate the requirements of the Program.
Manual Task Competency Assessment
The Appellant's evidence was that the system of work involved in loading and unloading the dishwasher only changed after her injury was notified to Ozcare while Mr McKay believed that the system of working in the kitchen had remained the same but was different to that now described by the Appellant. What is clear however, is that Ozcare undertook Manual Task Competency Assessment to which the Appellant had attended in 2013 and 2014.
The Regulator referred to the Appellant's completion of a Manual Task Competency Assessment on 16 April 2015. This course included consideration of employees' knowledge of incident reporting and hazard reporting. [T1-62, 63 and Exhibit 4]
This training course took some two hours to complete and dealt with issues such as handling techniques including semi-squat, lift and vacuuming.
The delay of the Appellant's Claim
It was submitted that the fact that the Appellant's Application for Compensation (and Medical Certificate) were not completed until mid-April 2015, was understandable in that the Appellant did not wish to raise the issue with Ozcare, for fear of losing her job.
The Appellant rejected the Regulator's claim that the Appellant had concocted the details of an event at work because Ozcare had decreased her weekend work with the introduction of her Suitable Duties Program.
The Appellant stated that a rational explanation for not informing her employer at the time of the two earlier incidents of pain was because those incidents were managed with appropriate conservative treatment which ensured that she could continue working.
Evidence regarding the nominated date of injury
On 5 April 2015 and following dates, Dr Afshar described the Appellant's condition as an "exacerbation of pain since early this year again now with radiculopathy". His Certificate showed that her injury had resulted from "heavy lifting - taking full dishwasher tray out and lift [sic. lifting] it to a shelf above shoulder level". [Medical Certificates 5 and 29 April 2015, 17 May 2015 and 14 June 2015 - Exhibit 14]
The Regulator questioned the dates nominated by the Appellant in her claim stating that in the "Statement of Facts and Circumstances" she had identified an aggravation of her pre-existing degenerative lumbar spine condition as occurring "in about late 2014", or alternatively, "in or about January 2015", as detailed in in her Notice of Appeal.
Of significance to the Regulator's submissions was that, during the Appellant's various visits to her General Practitioner, Dr Afshar, there had never been a mention by her of back pain being associated with the work she had been performing. Also the Appellant later stated that she had not recalled advising Dr Afshar of her work duties being causative of her back pain. [T1-43]
The Appellant states that the certificate issued by Dr Afshar on 15 April 2015, identifying a recent injury (i.e. exacerbation of pain since early 2015 with radiculopathy) and the noted underlying condition as from November 2013, was sufficient for the Commission to accept the Appellant's claim.
The Appellant submits that Ms Zaia's reasons for not advising her employer of her injury when it occurred are plausible. As well, the Appellant's decision to attempt to control her pain through various conservative treatments should be accepted. In early January 2015, when the Appellant says she exacerbated her injury by lifting heavy loads from the dishwasher, she continued to work with difficulty.
The Appellant submitted that Ms Zaia was an honest and reliable witness - she simply wanted to continue working and resisted advising Ozcare of her condition for fear of jeopardising her employment.
Mr Benjamin Ashor's evidence (the Appellant's partner) was that he recalled the Appellant coming home from work in January or February 2015 saying that she had injured her back lifting a full tray of dishes out of the dishwasher. He said she had also referred to the possibility of hot water spilling on her leg. In cross-examination, Mr Ashor said that the Appellant had been complaining of a bad back since she commenced work with Ozcare. Ms Juliana Shemaon's evidence (the Appellant's niece) was that she had recalled having a discussion with the Appellant in April 2015, about a work incident. She also remembered having discussions with the Appellant about her work and back pain since 2013.
I am unable to draw any significant conclusion from the evidence of Mr Ashor and Ms Shemaon. While neither witness observed the Appellant at work, I have accepted that Mr Ashor and Ms Shemaon had witnessed the Appellant complaining about her bad back for some time.
REGULATOR'S SUBMISSIONS
The Regulator identified inconsistencies in the Appellant's history as follows:
· In 2011, the Appellant saw a General Practioner viz., Dr Reda who ordered a CT scan of her back. The Appellant believed that the scan showed "something a little bit wrong", with her back at that time but did not really understand what that meant. However, in Dr Thynne's evidence the Appellant advised him that she had injured herself in 2011 because of lifting dish racks from the dishwasher.
· In providing her history to Dr Coroneos in July 2015, the Appellant denied that she had any previous injuries relating to her lower back from November 2013 and January 2015. However, Dr Coroneous did see the Appellant's CT scan from 2011.
· The Appellant said that in 2013, she experienced more back pain when she loaded and unloaded the full dish rack. The pain was also experienced when she was trying to push a heavy trolley. This information was given to Dr Alireza. There is no reference to those specific comments in Dr Alireza's medical notes. Dr Alireza saw the Appellant in November 2013 when she had complained of pain in her right knee and restricted range of movement. Dr Alirez's notes state:
"She also has LBP [low back pain] and she is very stressed about her back pain that is mainly mechanical. There is not a red flag. I started painkiller, a few days off and then review again. She was given a sickness certificate."
· There had been no mention in medical reports to a connection between her back pain and her work. While initially asserting that she had told Dr Afshar of the reason for her back pain, the Appellant also stated later in evdience that she did not recall mentioning work in relation to her pain.
· In April to June 2014, Dr Afshar treated the Appellant for left shoulder problems and there was no mention of her back pain occurring at her workplace.
· On 30 July 2014, in Dr Afshar's notes, there had been a medical note referring to lower back pain which occurred on and off for a couple of years.
· The Appellant claimed that her work-related injury occurred around a week before she saw Dr Afshar on 13 January 2015. However, when cross‑examined, she claimed that the incident occasioning her injury occurred between 2 and 9 January 2015. The Appellant had not been able to identify any particular date previously. Dr Afshar's medical notes make no mention of any work-related injury as at 13 January 2015. While the Appellant said she had advised Dr Afshar that her injury related to her work, it was not recorded.
· The Appellant said her reason for not informing Ozcare earlier of her work‑related injury was because she was awaiting the result of her MRI scan. However, the Regulator said the Appellant had not received her MRI scan until 8 February 2015 and she had continued to work her normal duties from 13 January 2015. The Appellant then took her annual leave which she had applied for on 5 December 2014.
· While the Appellant was adamant in that she did not want to advise her employer that her back pain related to the type of work she was performing, she said the reason she took leave from work for a month on 2 February 2015 was to rest her back. The Regulator has dismissed the above claim stating that "the true picture" was quite different as the Appellant had booked her leave in 2014. When cross-examined on this point, the Appellant agreed that she had booked her annual leave in 2014 because her back was getting worse in late 2014.
· The Appellant saw Dr Afshar on 16 and 28 February 2015, but there was still no record in the medical files of any work-related injury.
· Prior to seeing Dr Afshar on 25 March 2015, the Appellant said she had returned to normal duties at the workplace, but was now wearing a back support. The Appellant worked her normal duties from 13 January 2015 until 2 February 2015, when she went on annual leave.
· On 5 April 2015, the Appellant again saw Dr Afshar but did not mention any work-related factor to her injury.
· On 15 April 2015, Dr Afshar noted:
"w/c she mentions that some-time late 2013 she came to Dr Ali after she had low back pain for a few days that was caused by lifting a heavy full dishwasher tray to put it on a shelf above her shoulder level. Since January 2015 her pain has exacerbated and now has radiculopathy."
Dr Afshar wrote a Workers' Compensation Certificate on that day, and on three subsequent occasions. Each one stated that the date of injury was 13 November 2013 ("not certain", as noted by Dr Afshar) and that the injury was sustained from "heavy lifting taking full dishwasher tray out and lift it to a shelf above shoulder level" and that she "has exacerbation of pain since early this year again now with radiculopathy". [Exhibit 14] On 15 April 2015, a Workers' Compensation Application Form was completed. However, the Appellant did not recall signing the document but agrees that she was uncertain about the date of the injury. The cause of the injury was cited as "lifting heavy object".
· On 25 May 2015, the Appellant had told WorkCover that her leg symptoms came on at work with no specific mechanism described. [Exhibit 16] This statement is inconsistent with her ultimate claim concerning her back pain caused by a work-related injury.
· Mr McKay's evidence was that from 26 March 2015 through to 15 April 2015, the Appellant's injury was treated as a non work-related injury. This changed after the receipt of Dr Afshar's Medical Certificate. The Regulator submitted that the Appellant had told Mr McKay of the dishwasher incident prior to 16 April 2015. Mr McKay's evidence was that "we spoke for a reasonable amount of time but she was never able to identify a cause for her injury or a date for her injury". He stated that between 26 March 2015 and 7 April 2015, a work-related incident was never mentioned. His file notes and the lack of any incident reported in January 2015 support that contention. The Regulator said this was another issue on which the Appellant's credibility was undermined.
· Ms Raven-Holt (Workplace Health and Safety Administration officer) said that she had spoken to the Appellant on 20 April 2015 and during the course of a series of telephone conversations with her, there had been no mention by her of a work-related injury. While Ms Raven-Holt did not recall the detail of each conversation, she had relied on her contemporaneous notes of those discussions.
· Ozcare were not aware of the alleged date of the injury until advised by WorkCover. The date given was March 2013. [Exhibit 15]
· Mr Carlisle (Customer Advisor at WorkCover Queensland) advised that his contemporaneous notes of 25 May 2015 show that:
"Worker started Pilates in January 2015 - group class - this is when the pain changed - symptoms changed from Lower back to pain in the legs as well - described it as a burning sensation and tingling in the feet, just came on whilst at work, no specific mechanism described."
· Dr Afshar, in cross-examination, said that he would usually record in his notes if a patient described a work-related injury. There had been no notes in his records of the Appellant relating her injury to a work incident. The only reference to a back injury was made in April 2015 and that related to a work incident identified by the Appellant as having occurred in 2013.
CONCLUSION
The Appellant submits that the application, together with Dr Afshar's certificate identifying a recent injury viz., "Exacerbation of pain since early 2015 with radiculopathy", is sufficient to establish that the Appeal should be accepted.
The onus of proof lies with the Appellant that, on the balance of probabilities, her claim is one for acceptance.
The balance of probabilities test is not satisfied by evidence which fails to do more than establish a possibility see St George Club v Hines[1] and Tubemakers v Fernandez[2].
[1]St George Club v Hines (1961-62) 35 ALIR 106
[2] Tubemakers v Fernandez (1976) 50 ALIR 720
In making my decision, I have accepted the evidence of Dr Coroneos over that of Dr Thynne. Dr Coroneos is a neurosurgeon who treats patients with spinal conditions. Dr Thynne is a General Surgeon and whilst his general medical experience is acknowledged, Dr Coroneos' training and experience in this particular field of evidence is preferred. See Lord Russell quoted in Makita (Australia) Pty Ltd v Sprowles[3]:
"The opinion expressed by an expert witness in any branch of technical science depends for its effect on, inter alia, his qualifications, skill and experience in that science."
[3] Davie v The Lord Provost, Magistrates and Counsillors of the City of Edinburgh 1953 SC 34 Lord Russell at 42, quoted in Makita (Australia) Pty Ltd v Sprowles (2001) NSWLR 705 at 730
Dr Coroneos' opinion which is accepted, is considered within the following context[4]:
"The question whether an applicant for compensation has suffered an "injury" within the meaning of the Workers’ Compensation Act 1990 is a question of mixed fact and law on which medical evidence is often helpful, but necessarily not decisive."
[4] Groos v WorkCover Queensland 165 QGIG 106
The Appellant's evidence as to the causation of her condition has not been accepted. There have been considerable inconsistencies identified by the Regulator concerning the Appellant's evidence (see paragraph [85] above) and I accept the Regulator's view that these do not assist the Appellant in her claim.
It is accepted by the Regulator that the Appellant has an injury being "degeneration of the lumbar spine" which has been documented when the Appellant had undertaken a CT scan which was performed in 2011.
The Regulator says that the cause of the Appellant's later symptoms in 2015 i.e. the pain radiating down her right leg and pins and needles in her right leg, remains unknown as referenced by Dr Coroneos.
I have accepted that the Appellant has been unable to identify an acute injury occurring to her whether by way of aggravation of a pre-existing injury or otherwise at her workplace on the dates nominated by her.
The words "arising out of", while not requiring the direct or proximate relation which would be required if the words used were "caused by", states "there must be some causal or consequential relationship between the worker's employment and the injury". (See Kavanagh v The Commonwealth[5] at 556 per Dixon J and 558 Fullagar J.)
[5] Kavanagh v The Commonwealth 103 CLR 547
I have been unable to accept the Appellant's evidence as it relates to causation of her injury. I have not accepted Ms Zaia as a reliable witness. I have not accepted that the Appellant withheld notifying her employer of her work-related injury for fear of losing her job. Ozcare had provided direct and documentary evidence to the effect that it had undertaken Manual Task Competency Assessments to which the Appellant had attended and Ms Zaia's own evidence was that she had previously reported a work-related incident prior to 2015.
I have not accepted the Appellant's evidence that she advised Dr Afshar that her injury was work-related. His notes do not reveal any commentary from her in that regard. I accept his evidence that had she done so, he would have recorded work prohibitions relative to her injury in her Suitable Duties Program. I have also accepted that had he known her injury was work-related, he would have referred her for private medical treatment rather than sending her to the Gold Coast Hospital as he had done.
In Croning v Workers' Compensation Board of Queensland[6] at 101, de Jersey P (as he then was), held that employment needed to be "a real, effective cause" of the injury, and not merely the setting or background in which the injury occurred.
[6] Croning v Workers' Compensation Board of Queensland 156 QGIG 100
I accept that the Appellant has been unable to satisfy her onus of proof that she sustained an injury where such injury arose out of or in the course of her employment.
The Appeal is dismissed. The Appellant is to pay the Regulator's costs of, and incidental to the Appeal.
[100]Order accordingly.
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