Zanette v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 83
•15 May 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Zanette v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 083 |
PARTIES: | Zanette, Mario v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2011/383 |
PROCEEDING: | Appeal against a decision of the Workers' Compensation Regulator |
DELIVERED ON: | 15 May 2014 |
HEARING DATES: | 14 and 15 August 2013 |
MEMBER: | Industrial Commissioner Black |
ORDERS : | 1. The appeal is dismissed; 2. The decision of the respondent dated 3. Costs are reserved. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Where the appellant claimed he sustained injuries while lifting and carrying 50kg bags of potatoes - Whether the appellant's claimed back injury was caused by pre-existing and degenerative factors - Whether employment was a significant contributing factor. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 s 32(1), s 550 |
| APPEARANCES: | Mr D. Turnbull, Counsel instructed by Dean and Bolton Solicitors for the Appellant. Mr P. O'Neill, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. |
Brief History of the Claim
The Appellant, Mario Zanette, appeals a decision of the Review Unit of the Workers' Compensation Regulator ("the regulator") to reject his application for workers' compensation for an injury to his "lumbar spine". The Regulator's decision confirms an earlier decision of WorkCover Queensland that the Appellant had not sustained an injury in accordance with s 32 of the
Workers' Compensation and Rehabilitation Act 2003 ("the Act"). The Appellant now appeals the decision to this Commission pursuant to s 550 of the Act.
The appellant worked as a Farm Labourer on properties owned by
Mr William Davidson ("the employer"). The properties were known as "Kaban Park" and "Kaban Heights". He commenced work for Davidson in February 2007 and resided in a house provided by the employer on another property called "Millstream". The appellant said that his work involved assisting in the harvesting of potatoes and in the preparation of the land prior to planting. He was also engaged in mustering cattle and drafting out cattle for market.
The appellant was injured in a motorbike accident while mustering cattle on
20 September 2007. He suffered a fractured right ankle and fracture to the mid shaft of the fibula of the right leg. As a result of the injuries the appellant did not return to work until sometime in the first quarter of 2008.
The appellant lodged a notice of claim for damages with WorkCover on
10 August 2010 in which he claimed that he experienced pain in his lower back and down his left leg while handling heavy bags of potatoes. He said that his injury occurred "about February or March 2008 (about 3 weeks after I returned to work after having the plaster taken off my right leg after my trail bike accident of
20th September 2007)".
The appellant's evidence in the proceedings was to the effect that he first returned to work on light duties and he resumed substantive duties about three weeks later on work associated with the harvesting of potatoes. This work involved lifting and carrying potato bags which weighed 50kg. While doing this work the appellant noticed lower back pain come on and get worse. Soon thereafter he was taken off the bagging work and was engaged in sorting potatoes. After a few days of this work he noticed the onset of sciatic pain.
Issue for Determination
The issue for determination in this appeal is whether the appellant suffered an injury arising out of, or in the course of his employment if employment is a significant contributing factor.
Section 32 of the Act relevantly 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."
Jurisdictional Documents
The jurisdictional documents [Exhibit 1] tendered by the Regulator were as follows:
· Q-COMP Notice of Claim for Damages dated 10 August 2010;
· WorkCover Queensland decision dated 10 June 2011;
· Q-COMP Application for Claim Review dated 2 September 2011;
· Q-COMP Review Unit Decision dated 7 October 2011; and
· Notice of Appeal dated 14 October 2011.
Nature of the Appeal
The appeal to the Commission is by way of a hearing de novo. To succeed with his appeal, the appellant must establish on the balance of probabilities that his injury arose out of, or in the course of, his employment if the employment is a significant contributing factor to his injury.
Evidence
During the course of the proceedings, evidence was provided by four witnesses. The witnesses for the appellant were as follows:
· Mario Zanette; and
· Dr Gale Curtis.
The witnesses for the regulator were as follows:
· Mr William Davidson (Davidson); and
· Dr Richard Gibberd.
Competing Positions
Expressed in simple terms the appellant's case is to the effect that he injured his back around April 2008 while bagging potatoes in the course of his employment with William Davidson. The appellant said that the work included lifting and carrying bags of potatoes weighing 50 kg. He said that while moving the bags of potatoes he became aware of the strain on his lower back and he developed pain which progressively got worse. He also noticed the onset of sciatic pain a few days later. His condition led to him being taken off bagging work and he was redeployed on to less onerous duties.
The respondent challenged the position of the appellant on a number of grounds:
(i) Inconsistencies in the account provided by the appellant about when particular events occurred;
(ii) Any back or sciatic pain experienced by the appellant was attributable to pre-existing and/or degenerative factors and not to a single traumatic event;
(iii) There was no harvest of potatoes in April 2008 and therefore the appellant could not have been injured at this time while lifting bags of potatoes;
(iv) The mechanism of injury described by the appellant was challenged;
(v) The consultation notes of Dr Coll taken on 6 May 2008 do not support the appellant's claim that he sustained back and sciatic pain while bagging potatoes a short time before the consultation; and
(vi) Notwithstanding the claimed back injury, the appellant never sought medical assistance for the condition. Further, notwithstanding the injury, the appellant continued to work for Davidson until June 2010 and did not make a workers compensation claim until August 2010.
Inconsistencies
The respondent drew attention to the following inconsistencies in the appellant's evidence:
· Notwithstanding the history that the appellant provided to Dr Gibberd in December 2010, he maintained in his oral evidence that the first onset of sciatic and back pain occurred in April 2008;
· Notwithstanding the history provided to Dr Curtis on 4 February 2011, the appellant's evidence was that the onset of sciatic pain occurred about three days after his back injury;
· The appellant's evidence that he did not suffer from prior back or sciatic pain is contradicted by the medical records;
· While the appellant said he commenced wearing a boot in early
January 2008, Dr Coll's notes suggest the boot was first used around
12 February 2008;
· The appellant's evidence that he resumed work in early February 2008 was not consistent with his claim that he was injured in late April 2008;
· The appellant's evidence that he was injured in late April 2008 is not consistent with his notice of claim wherein he stated that he was injured about February or March 2008.
· The dates claimed for planting and harvesting of the 2007/8 potato crop cannot be reconciled.
Resumption of Work
The respondent submitted that a review of the consultation notes of Dr Coll suggested that it was unlikely that the appellant could have resumed work prior to the consultation on 11 March 2008 and that it would not have been possible for the appellant to have commenced his substantive duties in April 2008. The respondent advanced the view that the most likely scenario was that the appellant resumed light duties in April 2008 and would not have commenced substantive duties including bagging of potatoes until the harvest in July 2008. In making this submission the respondent relied in particular on the consultation notes taken on
29 January, 12 February, and 11 March 2008.
The note of 29 January 2008 recorded that the ankle and foot were still swollen and becoming erythematous (refers to redness of the skin) following mobilising. The ankle was still painful with mobilising. The possibility of chronic regional pain disorder was raised and the appellant was encouraged to use a single point stick to reduce the load on his ankle. The notes of 12 February 2008 indicate that the appellant has been experiencing chronic right ankle pain and difficulty ranging the ankle. Further a reference is made to constant swelling, altered sensation, colour changes from red to blue and sensitivity to touch and cold. There is also a reference to a "trial for month" in a particular type of boot. The notes of the 11 March 2008 consultation record that the ankle was still red and swollen, that the appellant can stand all day, but that he cannot get up on to a horse.
The respondent deduced from these entries that it would have been unlikely that the appellant could have resumed light duties before 11 March 2008. Further if the note about the boot trial is preferred over the appellant's oral evidence that he commenced wearing the boot in late December or early January, then this is a further indication that the appellant would not have resumed work until some time in March 2008 when his boot trial ended. It followed from this that the appellant would not have commenced substantive duties until "well into April".
The appellant on the other hand submitted that the Commission should make a finding to the effect that the appellant returned to substantive work about late
March 2008. The appellant submitted that light duties involved driving a tractor (he needed to be lifted on to the tractor by a fork lift) and checking the cattle on a quad bike. The appellant's evidence was that he finished light duties in late March or early April when he commenced bagging potatoes.If the date of resumption of work were to be determined by reference to the date that a special boot was fitted, two alternative scenarios emerge. The first scenario is based on the 12 February 2008 note which suggests that the appellant would trial wearing a boot for about a month. Using this date as the starting point, the other evidence would suggest that the appellant commenced light duties in early March and commenced work on the harvest in late March or early April. As it transpires this time line is broadly consistent with the appellant's evidence that he started his substantive duties in late March or early April and that he was injured towards the end of April 2008.
This chronology however cannot be reconciled with the appellant's evidence. The appellant said that he resumed work on light duties in early February 2008 and started bagging potatoes around the end of February or early March. He was injured within two weeks of starting the potato work. Therefore he would have sustained his injury in the first half of March 2008 some six weeks prior to the consultation with Dr Coll.
6 May 2008 Consultation
On 6 May 2008 the appellant attended a scheduled appointment with Dr Coll in regard to the injury sustained in his motor bike accident. According to the medical notes the appellant informed Dr Coll that he had experienced sciatic pain in his left leg and said that this pain was worse than pain experienced in his foot. The cause of the sciatic pain was not mentioned. The notes do not refer to heavy lifting at work but do refer to work being performed on a tractor and on a quad bike.
The respondent submitted that the consultation notes contradicted the appellant's position in a number of respects. Firstly the notes suggest that the appellant continued to experience pain or discomfort. This factor together with the description of duties included in the notes suggests that the appellant was only performing light duties in the period leading up to his consultation. Further the notes do not include any mention of the appellant sustaining a back injury at work, nor do they indicate that the sciatic pain mentioned was attributable to back pain suffered while lifting bags of potatoes. The respondent posed the question: why would the appellant mention light duties with Dr Coll when, on his evidence, only a week or two prior to the consultation he had sustained a significant back injury and suffered sciatic pain as a result of the heavy lifting of bags of potatoes. It was the consequential view of the respondent that the indication in the notes that the appellant was undertaking light duties prior to 6 May was consistent with Davidson's account that there was no April harvest and that the first harvest did not occur until around July 2008.
In my view the consultation notes are not conclusive of a fact that the appellant was performing light duties prior to the consultation and that he had not commenced substantive duties. On the appellant's evidence the harvest had concluded by the end of April and if a discussion had taken place on 6 May about work duties, it was possible that the focus was on duties performed immediately prior to the consultation or on duties to be performed after the consultation.
Other matters however arise from the content of the 6 May notes. In the appellant's favour there is a record of sciatic pain. However against this, there is nothing in the note that connects the sciatic pain with the mechanism of injury relied on by the appellant in these proceedings. It was odd that the notes would record some work activities undertaken by the appellant but not include a reference to an event that occurred a short time prior thereto where the appellant injured his back lifting 50kg bags of potato.
The appellant argued that the record of sciatic pain included in the notes of the
6 May consultation was consistent with his claim that he was injured in late
April 2008. It was emphasised in this regard that the consultation notes of Dr Coll in 2008 contained no prior suggestion that sciatic pain had been suffered earlier in 2008 or in 2007 as claimed by the respondent. It was the appellant's view that if sciatic pain had been experienced in December 2007 or in the early parts of 2008, this would have been mentioned to Dr Coll and it would have been recorded in her notes.Continuation of Work
The respondent drew attention to the fact that, despite suffering a serious back injury in April 2008, the appellant continued to work with the same employer until
June 2010, and did not lodge a claim for workers compensation until August 2010.
Whether the appellant notified his employer of his back injury is a matter in dispute. The appellant said that he "mentioned the pain from time to time" to Mick Rose who was a manager working for Davidson. The appellant also said that he mentioned the matter to Davidson. However Davidson denied being informed by the appellant that he had suffered an injury. Notwithstanding this the appellant continued to work without seeking medical assistance in respect to lower back pain or sciatica.
It was the appellant's evidence that subsequent to May 2008 he did not lift bags of potatoes when crops were harvested later that year or in 2009. Davidson appeared to agree with this although he did say that most of the harvesting involved a bulk process (potatoes were not individually bagged) (T1-110). In part this evidence supports the appellant's claim that he had sustained an injury and was not able to perform the full range of duties. The dispute being whether the restrictions were totally attributable to the 2007 bike accident or were attributable to both the 2007 accident and lower back pain (whether degenerative or caused by lifting bags of potato in April 2008).
In his evidence the appellant stated that after he hurt his back bagging potatoes he was transferred to sorting duties on the potato harvest. Beyond the harvesting work the appellant performed a range of functions which did not cause him lower back pain, but did from time to time cause sciatic pain if he was standing for too long a period. At T1-35/7 the appellant describes the range of duties he performed between May 2008 and June 2010. These duties included driving the tractor, mustering on a quad bike, and some work on his feet associated with drafting cattle for market such as opening gates and pushing or cajoling cattle into holding yards. During harvesting he was not engaged in bagging and was restricted to operating the sorting machine.
The fact that the injury claimed by the appellant did not require any medical attention arising from his claimed injury is relevant. However this outcome may have been attributable to the program of light or alternate duties applicable to the appellant following his motor bike accident. In terms of the injury in contention, it was the appellant's own evidence that he was only engaged in moving bags of potatoes for a short time before he was redeployed to the sorting function. Setting aside the few days in contention in April, it appeared that following his return to work after the motor bike accident, and until his employment ended, the appellant was engaged under a program of alternate or light duties. As such his back or sciatic pain may have settled reasonably quickly after the event and not required treatment. It was this set of circumstances that was related to Dr Gibberd's conclusion that the appellant's claimed condition amounted to an exacerbation, not an aggravation.
I do not consider that any adverse inference should be drawn arising from the delay in lodging the workers' compensation claim. I think the delay can be adequately explained by reference to the circumstances associated with the motor bike accident in September 2007. The appellant did not lodge a claim arising from this accident because, on his version, Davidson asked him not to lodge a claim on the basis that he would continue to pay the appellant his normal wages and maintain the same living arrangements for the period that he was off work. It is not disputed that Davidson did continue to pay the appellant for the period that he was off work after the motor bike accident. Nor is it in dispute that the appellant did not lodge a workers' compensation claim at that time. Given this set of circumstances, plus the fact that since May 2008 the appellant continued working, it was understandable that the appellant did not lodge a claim until after his employment had ended and after he had obtained legal advice.
Davidson's response to the September 2007 injury founded an attack by the appellant on Davidson's credit. The appellant submitted that Davidson's decision to continue paying wages to the appellant while he was off work supported the appellant's evidence that Davidson took this decision to ensure that the appellant would not lodge a workers' compensation claim. The submission was that Davidson adopted this arrangement because he did not have a workers' compensation policy in place. These circumstances contributed to a view that Davidson was a man of dubious character and that it was reasonable to doubt any account that he may give of the circumstances surrounding the second injury claimed to have been sustained by the appellant. I think however that the appellant can only go so far with this assertion. Factors diminishing the impact of the appellant's submission are that Davidson elected to continue the appellant in employment notwithstanding his physical limitations; Davidson paid the appellant his full wages during the period off work; and Davidson allowed the appellant continuing use of the house at Millstream. The measures put in place by Davidson were by no means draconian. I decline the invitation to make a global finding of credit adverse to Davidson.
History of Back and Sciatic Pain
A matter in contention was whether the appellant had a prior history of lower back and/or sciatic pain. If so, the proposition of the respondent was that the appellant's back and sciatic condition was attributable to pre-existing or degenerative circumstances and that the appellant did not suffer a single traumatic event in
April 2008 as he claimed. Three significant matters require attention:
· The appellant's own evidence that he had experienced prior back soreness or pain;
· The history provided by the appellant to Dr Gibberd to the effect that he experienced back and sciatic pain at the time that his cast was removed in December 2007; and
· The entry in the consultation notes of Dr Coll taken on 12 February 2008 which stated that the appellant had received an epidural in the past for low back pain.
The respondent submitted that the appellant did not experience lower back pain and sciatica as a result of work duties but as a result of "the development of the pre-existing degenerative processes in his lower spine". The respondent submitted that the evidence supported a finding that the appellant had experienced low back pain and sciatic pain before the claimed traumatic event in April 2008. In so submitting the respondent relied on the consultation notes of Dr Coll taken on 12 February 2008 and the report of Dr Gibberd.
The appellant acknowledged that he had experienced some lower back soreness or muscular twinges while engaged in handling potatoes in July 2007. Davidson accepted that a crop of potatoes was harvested around July 2007 and that the appellant would have worked on the harvesting of this crop (T1-96). The appellant also agreed that during the consultation on 12 February 2008 with Dr Coll he thought that he told her that he was experiencing some lower back pain which he described as muscular pain (T1-59). However the appellant denied that he had ever sustained a back injury prior to the event in April 2008.
The entry about the epidural in the consultation notes for 12 February 2008 attracted considerable attention during the proceedings. The entry was expressed in the following terms:
"Patient not been on epidural steroids and ROM if considering RSD. Had epidural in past for LBP and said he had worsened LBP and headaches".
The notes did not reveal what prompted the entry. The submissions for the appellant were to the effect that the note should not be treated as evidence that the appellant complained to Dr Coll of lower back pain or that he told her that he had a history of back pain or back injury. It was pointed out that the appellant had never stated that he had had hurt his back in his motor bike accident or that he had any problem with his lower back following his return to work after his motor cycle accident. Further it was significant that a follow-up note had not been included in the entries arising from the 11 March 2008 consultation, nor was there any reference to lower back pain.
The respondent asserted that the reference in the notes to an epidural for lower back pain suggested that the appellant reported back pain and sciatic symptoms to Dr Coll during this consultation. Further the respondent argued that the entry was evidence of a prior history of back and sciatic pain. Additionally the use of an epidural steroid injection to treat sciatica and lower back pain was confirmed by both Dr Gibberd and Dr Curtis. The appellant, on the other hand, asserted that the respondent's interpretation on the 12 February entry amounted to speculation and should not be ranked any higher than that. The appellant also proposed that the entry about an epidural could have meant that Dr Coll was considering using an epidural steroid for possible regional (reflex) sympathetic dystrophy (RSD). This proposition however was rejected by Dr Gibberd who expressed the opinion that an epidural steroid would never be used to treat ankle pain.
The Commission faces some difficulty in arriving at a finding in the absence of any oral evidence from Dr Coll. However the expression "Had epidural in past for LBP and said he had worsened LBP and headaches" is not ambiguous. In my view, when read in conjunction with the evidence of Dr Curtis and Dr Gibberd, the entry supports a balance of probabilities finding that the appellant had experienced low back pain prior to the alleged event in April 2008. Not a lot may turn on the finding however if it were held that the claimed injury amounted to an aggravation.
The respondent also relied on the report of Dr Gibberd which is in the evidence as Exhibit 7. Dr Gibberd had assessed the appellant on 7 December 2010. His report incorporated a history provided by the appellant including the following paragraphs:
"He stated that he noted some left leg pain around the time that the plaster was removed and some low lumbar back pain.
Around this time he also noted that the pain would radiate down the posterior thigh into the calf region and he noted pins and needles affecting the dorsum of the distal foot and all toes equally."
This history contradicts the version of events provided by the appellant to the Commission and also included in his notice of claim dated 10 August 2010. If the history provided to Dr Gibberd were to be preferred, apart from the implications for credit, it would mean that the appellant had experienced back and sciatic pain prior to the April 2008 event, and cast doubt on his claim that his back and sciatic pain were caused by lifting bags of potatoes in April 2008. The appellant however denied that he had told Dr Gibberd that he experienced back and sciatic pain when the cast came off his leg in December 2007.
There is some other material which is suggestive of a prior back condition, although not in any sense determinative. Two references to a prior back condition appeared in the medical notes at pages 75 and 129 of the complete medical record.
At page 75 the Atherton Hospital Triage Form dated 20 September 2007 included the words "Back Surgery '97" in a section of the form headed "Surgical History". At page 129 a Cairns Health Service "Pre-Admission Assessment" dated
20 November 2007 included the words "Sacral surgery, cyst" in a section of the form headed "Previous Surgical Experience". No evidence was adduced, nor any submissions made, in respect to this material.
Finally, the medical records from the Atherton Hospital which are in the evidence as Exhibit 8 refer to low back pain resulting from a rodeo accident in 1991, but there is no evidence of any significant injury or continuing pathology. There was also reference in the proceedings to a procedure completed at the Atherton Hospital in 2000 where the appellant said that he had an "in grown hair" removed. Part of the procedure required an injection in his lower back.
In my view, a consideration of the evidence of Dr Curtis and Dr Gibberd and of the medical records in the evidence as Exhibit 2 leads to a conclusion that the appellant had suffered from a pre-existing back condition arising from degenerative and constitutional factors or from other circumstances. Such a conclusion is consistent with the medical evidence relating to an MRI taken of the appellant's lumbosacral spine on 11 February 2011 (Exhibit 3 refers). It is also consistent with the evidence of Dr Curtis where he conceded, in respect to the claimed injury, that an aggravation was the most likely result having regard to the facts and circumstances. The conclusion is also consistent with Dr Gibberd's view that the appellant's situation may have involved an exacerbation of a pre-existing condition which had been symptomatic, in circumstances where the exacerbation would have ceased.
Potato Harvest
The matter in contention was whether a crop of potatoes was harvested around
April 2008. The respondent contended that potatoes were not harvested in
April 2008 and that the appellant could not therefore have been handling bags of potatoes at that time. The appellant however gave evidence that a crop of potatoes was sown in November 2007 and harvested in April 2008.It was accepted that a crop of potatoes was harvested around July 2007 prior to legal transfer of the property to Davidson. Davidson accepted that the appellant would have worked on the harvesting of this crop (T1-96). This is consistent with the appellant's statement that he had been engaged on potato work prior to his motor bike accident on 20 September 2007.
Further, it was not in contention that a crop of potatoes was harvested around July 2008 and around November 2008 (T1-48). It was also agreed that a crop was harvested around July 2009. The appellant however asserted that a crop was also planted in November 2007 and harvested in April 2008. Davidson disputed this view and said that a crop was not planted at the end of the year in 2007.
Davidson's uncontradicted evidence was that it took about one week for the potato crop to be sown; about twelve weeks for the potatoes to grow; and about three weeks for the potatoes to be harvested. Davidson said that a potato crop was typically planted around March/April or in July/August after the winter frosts have abated. He said that crops were never planted in the summer months because of the heat and the rainfall and the risk of disease. His evidence at T1-93/94 refers:
"Now, Mr Davidson, can I ask you what the usual process was for when potato crops were planted and harvested in the course of the year?---Potatoes are normally planted on the Atherton Tablelands in March or April depending on the weather because the soil can't be – it's just too hot between December, January and March. Primarily there's a disease in the ground called sclerotinia, or white rot, and once it goes above 20 degrees Centigrade it goes through the potato, so it's physically not a good time to grow and there's a lot of trouble with potatoes in hot ground.
And so what’s the consequence – I’m sorry, I didn’t quite catch it. I’m having a problem with your accent sometimes. What’s the consequence if you plant the potatoes during that hotter period of the year?---They take a lot of disease in the ground that the – the diseases are more violent with the damp and the wet.
Okay?---So the idea is to get the potatoes to grow, like, if you plant them April you're coming – March or April – you're coming into cooler weather. They'll be harvesting in July, June, July, August. The start then and then plant a second crop in June, July or August. And they're coming out of the ground before it gets too hot and that'll be latest October, November".
The respondent submitted that the appellant agreed that a crop was harvested in
June or July in 2007. He agreed that a second crop was planted in June or
July 2007. He agreed that this crop was harvested in Oct/Nov. 2007. However the appellant refused to agree that a crop was normally planted in March each year. The appellant's evidence is recorded at T1-48. If the appellant was asserting that potato crops were not planted around April in the relevant year, it is clear that such evidence cannot be sustained given that crops were harvested in July each year.
The appellant submitted that findings about the dates of planting and harvesting the first crop in 2008 were central issues. The appellant argued that the Commission should prefer its evidence over the respondent's evidence in resolving any conflict. This submission was supported by two key propositions. Firstly the appellant continued its attack on Davidson's credit. Secondly it was asserted that an inference adverse to the respondent should be drawn because of the respondent's failure to produce documentation relating to the planting and harvesting of potatoes in 2008. It was the appellant's submission that these documents would have resolved the matter in contention and that the only reason why they were not produced was because they did not support the respondent's case.
I am not inclined to draw the inference sought. If the documentation in question existed, it was open to either party to seek discovery of the information. No submission was made by either party to the effect that they had sought discovery of documents which might have established whether a crop of potatoes was harvested in 2008. I accept that the respondent was entitled to rely on Davidson's oral evidence in establishing that a crop was not planted in November 2007 and in explaining the reasons why a crop was not planted at this time of the year. Confronted with this evidence it was a matter for the appellant to present evidence or argument discrediting Davidson's reasons why a crop would not be planted in November. In this regard I do not consider the appellant's version that a crop sown in November would be kept cool in the summer by a travelling irrigator to constitute a plausible rebuttal to Davidson's explanation that potatoes were never planted in the summer months because the crop was highly susceptible to disease and that damp conditions increased the susceptibility.
In terms of when potato crops were harvested, the evidence consistently pointed to a harvest of crops in or around July 2007, July 2008 and July 2009. This evidence establishes that a crop was sown around April in each of these years. This practice is consistent with the version of events provided by the respondent. While it was possible that a crop was both sown and harvested in April, I am unable to reach a balance of probabilities finding that this had occurred.
This finding is supported by a flaw in the appellant's evidence around the timing of the planting and harvesting of the crop alleged to have been planted in late 2007. It was the appellant's evidence that a crop was planted in November 2007 and harvested in April 2008. A crop harvested in April would require a planting in late December or early January based on Davidson's evidence that the growing cycle was 12 weeks. Alternatively a crop that was planted in November would be ready for harvest in early March. This part of the appellant's evidence cannot be reconciled.
Further the appellant's evidence was not convincing around the dates of planting and harvesting. At T1-48 he said that he "did the spud season, because you get two crops. I did the spud season in late March/April. Then the other crop was planted in June/July". In fairness to the appellant, he may have been confused by the
cross-examination. But the consequence of his statement is that the two crops were harvested in March/April and October/November in each year. This means that the appellant is denying that a harvest usually took place around July each year, a position which is not sustainable.Mechanism of Injury
The respondent challenged the appellant's version of events dealing with the mechanism of injury. The respondent relied on Davidson's evidence in submitting that, even if the appellant was bagging potatoes, the injury could not have occurred in the manner described by the appellant.
In his evidence the appellant provided a detailed account of the harvesting and bagging process. The appellant submitted that this account of the mechanism of injury should be preferred to Davidson's account. Davidson suggested that despite his range of commitments he was actively involved in the harvest and that he had observed the appellant at work. He said that the appellant was not engaged in lifting or moving bags of potatoes but that he was involved only in the lighter work of sorting potatoes. The appellant's evidence at T1-29 was to the effect that Davidson only visited the farms from time to time and generally left the running of the farms to Mr Klingspoon. That is, Davidson's presence was intermittent and he did not have any continuous involvement.
Davidson said that the bagging process was not correctly described by the appellant. He said there was no need to lift bags and that the method was to drag bags across the platform. Davidson said that bags were stacked side by side in a vertical manner, there was no horizontal laying of bags. He said that there were fewer bags held on the platform than what the appellant described. Davidson also said that harvesting extended over two to three weeks not the four to five weeks suggested by the appellant. Davidson also questioned whether it would have been possible for the appellant to have lifted bags weighing 50 kilograms (T1-113).
Without reconciling the conflicting evidence in detail I am prepared to find that the injury may have occurred in the manner described by the appellant. While Davidson maintained that he was closely involved in the physical activities associated with the harvesting of potatoes I consider that he would have been absent from the operations from time to time, whereas the appellant's connection with the workplace would have been continuous. Further the work procedures that Davidson said should have been followed were not documented, and Davidson relied on Klingspoon to train workers in the various tasks that had to be completed during the harvest. In the circumstances I think it was possible that gaps may have occurred from time to time between the method of work that Davidson expected to be applied and the method of work actually deployed.
In the circumstances I am prepared to enter a finding that the mechanism of injury may have been that described by the appellant. That is, I accept that the movement of 50kg bags of potatoes by the appellant could have involved, in particular situations, a twisting of the body while lifting, and that this process could have applied stress to the appellant's back.
Medical Evidence
The complete medical record of the appellant taken from the Cairns Base Hospital is in the evidence as Exhibit 2. The record discloses the following chronology that may be relevant in the determination of this matter:
15 July 1991 Medical records of Atherton Hospital show the appellant suffered back pain as a result of a rodeo fall. Record states:
"Fall in rodeo 2/7 ago. Pain right low back, right knee, left calf. No parasthesia or sciatic nerve root pain. Upon examination, tender right paralumbar sacral area."
20 September 2007 Appellant sustains injuries to right leg in motorcycle accident whilst mustering cattle. Atherton Hospital Triage Form includes a section for "Surgical History". In this section of the form the following words are included: "Back Surgery '97". 20 November 2007 Appellant admitted for unrelated procedure. However the Pre-Admission Assessment form records under the heading of "Previous Surgical Experience" the following words: "Sacral surgery, cyst." Reference also to ankle screws. 11 December 2007 Screw removed from right ankle. Notes in Operation Report indicated that appellant would mobilise with crutches gradually increase weight bearing as comfort allows. 18 December 2007 Notes from Fracture Clinic record that appellant can begin weight bearing and records removal of diastasis screw. 8 January 2008 Further consultation at the Fracture Clinic. Notes record that appellant has not begun to weight bear yet. 29 January 2008 Consultation with Dr Coll. The consultation note indicates that the appellant's ankle and foot remain swollen and that the ankle is still painful with mobilising.
The outcome of the consultation is also recorded in a letter from the Orthopaedic Registrar to the Atherton Hospital. The letter stated inter alia that the appellant reported "ongoing problems with pain and swelling on his ankle, particularly after mobilization." The letter also stated that the appellant had been advised to be a "little less aggressive in his self rehabilitation, to weight bear a little less and to use a single point stick if this is possible".
12 Feb 2008 Further consultation with Dr Coll. Notes record inter alia that the appellant has been experiencing chronic right ankle pain and difficulty ranging ankle. A reference to "constant swelling" was included. Reference to patient presenting with symptoms which were consistent with RSD.
Trial for month in Lock boot & XROA
"Patient not been on epidural steroids + ROM if considering RSD. Had epidural in past for LBP & said he had worsened LBP & headaches".
11 Mar 2008 Further consultation with Dr Coll. Notes record that the appellant can't run but can stand all day. Also appellant says that he "can't get up onto horse". 6 May 2008 Further consultation with Dr Coll. Notes refer to appellant limping; "can't get up on horse"; "can get on tractor - lifted up in forklift"; "can get on quad"; report of "bad left sciatica - worse than foot; "swollen - probably effusion".
Two orthopaedic surgeons provided reports in relation to the appeal. Dr Curtis assessed the appellant on 1 February 2011 and prepared reports dated
4 February 2011, 18 March 2011 and 22 March 2013. These reports are in the evidence as Exhibit 3. Dr Gibberd prepared reports on 7 December 2010,
28 November 2011, 12 December 2011, and 27 May 2013 following an assessment on 7 December 2010. These reports are in the evidence as Exhibit 7.
The history provided by the appellant to Dr Curtis and included in his
4 February 2011 report showed that following his accident on 20 September 2007 the appellant's leg was in a plaster cast for 10 weeks. Following this the appellant was able to "slowly mobilize and gradually get himself back to work". The report then recorded that "some time later, several months, although he cannot remember precisely, he developed pain down the back of his left leg over the sciatic nerve distribution."
The history provided by the appellant to Dr Gibberd was to the effect that his leg was in plaster for about 12 to 13 weeks after his 20 September 2010 accident.
The report also indicated that the appellant said that he "noted some left leg pain around the time that the plaster was removed and some low lumbar back pain. Around this time he also that pain would radiate down the posterior thigh into the calf region and he noted pins and needles affecting the dorsum of the distal foot and all toes equally." In his evidence Dr Gibberd said that this history was consistent with a condition of sciatica.
The appellant maintained that Dr Gibberd's 7 December 2010 report was tainted by the fact that he had taken a confused history from the appellant which should not be relied upon in the determination of the appeal. The view was that Dr Gibberd should have asked the appellant to clarify his statement that he experienced back and sciatic pain when the plaster was removed from his leg. The basis of the criticism was that Dr Gibberd had seen the notice of claim for damages sworn by the appellant on 10 August 2010 and would have been aware that the appellant had provided a different version of events in his claim. It was also asserted that the history provided by the appellant was not consistent with the medical records which had also been examined by Dr Gibberd. Dr Gibberd rejected the criticism on the basis that the most important consideration for him was to accurately record what the patient was telling him and that experience informed him that it was not wise to challenge a patient's version of events.
I don't accept that responsibility for providing conflicting versions of events should be transferred from the appellant to Dr Gibberd. Dr Gibberd was entitled to record the history provided to him without modification. It is for the appellant to explain the differences in the account he recorded on 10 August 2010 and the account he provided to Dr Gibberd on 7 December 2010. In his evidence the appellant provided no such explanation except to deny that he gave the history to Dr Gibberd. This is not a plausible position for the appellant to take given that it is improbable that Dr Gibberd had wrongly recorded what he was told by the appellant.
Dr Gibberd said that his examination of the appellant on 7 December 2010 did not reveal any evidence of the presence of sciatic nerve tenderness, no evidence of any continuing pathology with the lumbosacral spine and no evidence of any significant back pathology. This meant that the back condition about which the appellant complained was constitutional or arose from a naturally occurring condition. Therefore it was Dr Gibberd's view that the appellant's condition was not related to his employment, subject to one qualification which was expressed in the following terms at T2-6:
"All right. Now, in your view as an experience orthopaedic surgeon, what would you say as to the question as to whether Mr Zanette's condition arises out of or in the course of his employment?---It would be my opinion it is not. There may have been some minor exacerbation, meaning an increase in pain associated with his employment, but no alteration to the underlying pathology and no long term sequela.
All right. And in relation to the question of whether his employment could be seen by the Commission to be a significant contributing factor to his condition, what would your professional opinion be about that?---It would be that it's not a significant contributing factor."
In maintaining that the appellant's condition involved an exacerbation Dr Gibberd further explained his position at T2-18:
"...Now, what I'm talking about his exacerbation is when he really gets below, you can get some increased inflammation. Now, the increased inflammation around the back will give you back pain and if it get's big enough, it will give you nerve root pain or your sciatica. When he rests or when he stops lifting the bags, then the inflammation will settle down and his pain will settle down. And this is why we say it's an exacerbation."
Dr Curtis viewed the matter differently. While he accepted that the MRI was evidence of congenital damage and not evidence of a major trauma, on the history given to him he was of the opinion that the injury was attributable to heavy lifting in the workplace. He considered the appellant's injury as a continuum involving a rural worker used to performing heavy work who continually put stress on to his lower back, and ultimately the injury occurred. He said that it was expected that this sort of thing would happen over time. He indicated however that it was most likely that the appellant's claimed condition involved an aggravation.
It was Dr Gibberd's evidence that the pars defect at L5 was constitutional in nature. He also said that the MRI disclosed a long-standing constitutional problem with the appellant's lumbosacral spine. He also said that the sciatic symptoms were caused by moderate to marked foraminal stenosis. This condition involves pressure on the nerves which causes the sciatica. It was his opinion that the pressure arose from age related degeneration associated with the pars defect.
The appellant submitted that both Dr Curtis and Dr Gibberd agreed that severe trauma on the spine, if it damaged a disc, could cause the onset of sciatica. The appellant submitted that it was entirely credible that the appellant may have experienced a severe episode of left leg sciatica a few days after an episode of lower back pain. The appellant said that it was Dr Curtis's evidence that severe sciatica is more likely to come on with a traumatic event or events imposing significant stress and strain on the spine, including twisting under load.
The appellant rejected the respondent's reliance on the history provided to
Dr Gibberd in the 7 December 2010 consultation and submitted that the date of onset of sciatica symptoms should be determined by reference to Dr Coll's notes. If this is done then a finding follows to the effect that the appellant did not complain of sciatic leg pain at any time prior to 6 May 2008. This position is consistent with the appellant's claim that he sustained back and sciatic pain in April 2008. The only explanation therefore for the sciatic pain was the heavy lifting of potatoes. No other explanation is present which identifies the event that is causative of the sciatic pain.
The respondent challenged the conclusions reached by Dr Curtis on the basis that the underpinning facts or history provided by the appellant had not been made out. The significant inaccuracies in the history provided which were claimed to exist by the respondent arose from the proposition that the appellant had a prior history of back and sciatic pain as evidenced by the entry of Dr Coll in the consultation note of 12 February 2012, and the content of Dr Gibberd's 7 December 2010 report. The other underlying fact in dispute was whether the appellant was handling bags of potatoes in April 2008.
For the appellant to succeed in his appeal a determination needs to be made that the underlying facts relied on by Dr Curtis in arriving at his opinion have been made out. The most contentious of these facts relate to whether the appellant was lifting bags of potato in April 2008 and whether the appellant had a history of pre-existing back pain. In respect to the former Dr Curtis agreed that the only causative event to his knowledge was the handling of bags of potatoes in April 2008. A finding made to the effect that potatoes were not harvested in April 2008, means that the appeal is lost. This is not the case however in respect to the dispute over a history of prior back and sciatic pain. In this instance even if the appellant has provided an incorrect history and it is determined that he had a history of prior back and sciatic pain which preceded the claimed injury in April 2008, a claim for aggravation can still be made out. However the appellant's case may be diminished by reservations about credit, particularly when considered in conjunction with the inconsistencies in his evidence.
Conclusion
Inconsistencies in the appellant's version of events contribute to his failure on appeal. Significantly his claim that he was injured in the latter part of April 2008 is not consistent with his evidence that a crop of potatoes was sown in
November 2007. Given the relevant contradictions in the appellant's evidence, I prefer the evidence of Davidson in deciding, on the balance of probabilities, that a crop of potatoes was not planted at the end of 2007. This finding undermines the appellant's case that he was injured handling bags of potatoes in April 2008.
Other factors also contribute to the decision to reject the appellant's appeal:
· The appellant's claim that he had no prior history of sciatic or lower back pain is contradicted by the medical records in the evidence as Exhibit 2.
· The appellant's claim was not supported by any corroborating evidence either oral or documentary. More particularly, there was nothing in the documentary evidence which linked the appellant's back and sciatic pain with his employment. The history provided to Dr Gibberd suggested that the onset of back and sciatic pain occurred during a period when the appellant was not at work while the notes of Dr Coll on 6 May do not make any connection between the reported sciatic pain and the lifting of bags of potatoes.
· A review of the medical evidence suggests that the appellant's condition was attributable to pre-existing or degenerative factors and did not arise from a single traumatic event as claimed by the appellant.
On the balance of probabilities I am unable to find that the appellant has suffered an injury in circumstances where the employment was a significant contributing factor.
The appeal is dismissed and the matter of costs is reserved. I order accordingly.
0
0
0