Bingham v Workers' Compensation Regulator [2016] QIRC 42

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Bingham v Workers' Compensation Regulator [2016] QIRC 042 PARTIES: Bingham, Matthew (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2014/16 PROCEEDING: Appeal against decision of the Workers' Compensation Regulator DELIVERED ON: 12 April 2016 HEARING DATES: HEARD AT: 7 and 8 August 2014 Brisbane MEMBER: Industrial Commissioner Neate ORDERS : 1. The appeal is dismissed. 2. The decision of the Respondent is confirmed. 3. The Appellant is to pay the Respondent's costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - physical injury - employee appeals against decision of Workers' Compensation Regulator to reject his application for compensation - whether there was an "injury" - whether injury arose out of, or in the course of, worker's employment - whether employment was a significant contributing factor to the injury - appellant bears onus of proof CASES: Workers' Compensation and Rehabilitation Act 2003 s 32 Avis v WorkCover Queensland (2000) 165 QGIG 788 Commonwealth of Australia v Lyon (1979) 24 ALR 300 Coombes v Q-Comp (2007) 186 QGIG 680 Graham Douglas Sergeant v Q-COMP (C/2010/52) - Decision http://www.qirc.qld.gov.au -- 1 of 20 -- 2 Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 Holtman v Sampson [1985] 2 Qd R 472 Kavanagh v The Commonwealth (1960) 103 CLR 547 Luxton v Q-Comp (2009) 190 QGIG 4 MacArthur v WorkCover Queensland (2001) 167 QGIG 100 Monroe Australia v Campbell (1995) 65 SASR 16 Newberry v Suncorp Metway Insurance Limited [2006] 1 Qd R 519 Newman v Blackwood [2015] ICQ 014 Nilsson v Q-Comp (2008) 189 QGIG 523 Qantas Airways Limited v QComp (2006) 181 QGIG 301 Qantas Airways Limited v Q-COMP and Blanch (2009) 191 QGIG 115 Q-COMP v Green (2008) 189 QGIG 747 Rossmuller v Q-COMP (C/2009/36) - decision http://www.qirc.qld.gov.au Sotiroulis v Kosac (1978) 80 LSLJ 112 State of Queensland (Queensland Health) v QComp and Beverley Coyne (2003) 172 QGIG 1447 Theiss Pty Ltd v Q-COMP (C/2010/11) - Decision http://www.qirc.qld.gov.au WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6 APPEARANCES: Mr B. Wright, counsel instructed by KM Splatt and Associates Dr M. Spry, counsel directly instructed by the Respondent Decision [1] Matthew Rhys Bingham ("the Appellant") appeals against a decision of the Workers' Compensation Regulator ("the Respondent"), made under s 32 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act"), to reject his application for compensation in relation to an injury to his hip and back that the Appellant alleges occurred at his place of employment on 13 August 2012. Background [2] The Appellant was born in July 1976, and had various jobs in New Zealand and Australia before being employed full-time as a truck driver by Biggar Pty Ltd at the Dairy Farmers Depot in South Toowoomba in about July/August 2011. The company delivers milk to service stations, hotels, and convenience stores. The Appellant's work involved packing orders for trucks, unloading pallets, pulling tarpaulins, pulling gates, and occasionally loading trucks for the following day. -- 2 of 20 -- 3 [3] The Appellant's account of the incident that gave rise to the alleged injury which is the subject of these proceedings can be summarised quite briefly. On Monday 13 August 2012, the Appellant worked a split shift. After his first shift (from 4.30 am until 11.00 am), the Appellant went home to sleep. He returned to work at 4.30 pm and, with a co-worker, performed various tasks including packing orders. At about 7.30 pm the Appellant stopped to do a stock take. The other worker went home after loading the truck. [4] Working alone, the Appellant was transferring milk crates from one wooden pallet to another at the depot cold room. Each stack had five milk crates and each crate contained nine two litre bottles of milk. Such stacks usually slide easily. However, one of the stacks became jammed on a nail that was protruding from the pallet. The Appellant used a metal rod with a handle at one end and a hook at the other to move the stack. The rod was about a metre long. He held the rod in his left hand and steadied the top two crates with his right hand. When he pulled the stack he felt a deep twinge in his groin and back. He wriggled the stack in an attempt to loosen the nail, "yanked it … hard", and felt and heard a "snap". He felt "a hell of a lot of pain" from the right side of his groin around to the bump on his back. He went home in shock. [5] The Appellant felt pain the next day. By his account, the pain did not "really sort of kick in until the next day." He spoke to his supervisor, and asked him to ring Mr Biggar and advise that the Appellant had done something to his back and groin. The Appellant then went to hospital. [6] The Appellant said that the pain did not improve after the incident, and was worse months later, despite surgery, physiotherapy and chiropractic treatment. [7] According to his Notice of Appeal, the Appellant made an application to WorkCover dated 20 August 2012 for "stomach, internal injury to chest, abdomen and pelvic" injuries. He subsequently complained of a lumbar spine injury. The application was accepted only with respect to the "abdominal muscle tear." [8] The Appellant's application for review was received by the Respondent on 7 November 2013. In its decision contained in a letter to the Appellant dated 13 December 2013, the Respondent confirmed the decision of WorkCover to reject his application for compensation in accordance with s 32 of the Act in relation to his hip and/or back injury. It is from that decision that the appeal to the Commission is made. [9] For completeness, and because it is relevant to how the appeal was conducted, I note that: (a) a right inguinal hernia repair was performed on the Appellant on 14 December 2012; and (b) the Appellant received WorkCover payments for a period, but those payments ceased; (c) the appeal does not relate to that soft tissue injury suffered by the Appellant, and the fact that a soft tissue injury was accepted by WorkCover cannot influence -- 3 of 20 -- 4 any decision the Commission might make in these proceedings about the claimed injury to his back and hip. Legal requirements [10] The appeal requires the Commission to decide whether the Appellant sustained an "injury" to his back and hip which satisfies the definition in s 32(1) of the Act which, at the relevant date, provided: "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." [11] For the appeal to succeed, the Commission must be satisfied on the evidence before it that: (a) the Appellant was a worker for the purposes of s 11 of the Act; (b) he sustained a personal injury to his back and hip; (c) the injury arose out of, or in the course of, his employment with Biggar Pty Ltd; and (d) his employment was a significant contributing factor to the injury. [12] An injury which arises out of employment occurs where there is a causal connection between the employment and the injury.1 Although the words "arising out of" do not require the direct or proximate relationship which would be necessary if the phrase used was "caused by," there must be some causal or consequential relationship between the worker's employment and the injury.2 [13] An injury "in the course of employment" means an injury is sustained while the worker is engaged in the work that he or she is employed to do or in something which is concomitant of, or reasonably incidental to, the person's employment to do that work.3 [14] For employment to be "a significant contributing factor" to the injury, the employment must be important or of consequence,4 and there should be some linkage between the employment and the injury.5 1 Kavanagh v The Commonwealth (1960) 103 CLR 547, 556 (Dixon J), 558 (Fullagar J). 2 Avis v WorkCover Queensland (2000) 165 QGIG 788, 788 (Hall P); WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6, 7 (Hall P). 3 Commonwealth of Australia v Lyon (1979) 24 ALR 300, 303-304 (Deane J); Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, 478 (Mason CJ, Deane, Dawson and McHugh JJ); Theiss Pty Ltd v Q-COMP (C/2010/11) - Decision http://www.qirc.qld.gov.au at [3] (Hall P). 4 Q-COMP v Green (2008) 189 QGIG 747, 751 (Hall P); Luxton v Q-Comp (2009) 190 QGIG 4, 6 (Hall P). See also Qantas Airways Limited v Q-COMP and Blanch (2009) 191 QGIG 115, 119 (Hall P). 5 Graham Douglas Sergeant v Q-COMP (C/2010/52) - Decision http://www.qirc.qld.gov.au, [15] (Hall P). -- 4 of 20 -- 5 [15] As Keane JA (as he then was) stated in Newberry v Suncorp Metway Insurance Limited:6 "[27] … The requirement of s. 32 of the WCRA that the employment significantly contribute to the injury is apt to require that the exigencies of the employment must contribute in some significant way to the occurrence of the injury which the claimant asserts was caused by the breach of duty of the person (not the employer) against whom the claim is made. … [41] That having been said, however, I should also observe in passing that the fact that an injury has been suffered arising out of employment, or in the course of employment, is not sufficient to establish that the employment has been "a significant contributing factor to the injury." To read s 32 of the WCRA in that way would be to read the latter words out of the section, and in my respectful opinion to accord scant respect to the evident intention of the legislature to require a more substantial connection between employment and injury than is required by the phrases "arising out of employment" or "in the course of employment"." [16] The Appellant carries the onus of proving on the balance of probabilities that he has an "injury" within the meaning of the Act.7 [17] While the onus to be discharged is on the balance of probabilities, the Commission, in dealing with the matter, must feel an actual persuasion before the alleged facts can be found to exist. The mere possibility of an appellant suffering an injury on mere conjecture is not enough. Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish.8 [18] While there is room for intuitive reasoning when determining whether a worker has suffered an injury within the meaning of the Act, in the process of determining that question of fact, the Commission cannot substitute speculation for satisfaction on the balance of probabilities.9 [19] Further, in a case where expert medical evidence is led, before any such expert medical evidence can be of value, the facts upon which it is founded must be proved by admissible evidence.10 [20] In this appeal, aspects of the Appellant's account of the event on 13 August 2012 are in issue. The Respondent also referred to evidence of pre-existing sciatica and the 6 Newberry v Suncorp Metway Insurance Limited [2006] 1 Qd R 519. 7 See Rossmuller v Q-COMP (C/2009/36) - decision http://www.qirc.qld.gov.au, [2]; State of Queensland (Queensland Health) v QComp and Beverley Coyne (2003) 172 QGIG 1447; Qantas Airways Limited v QComp (2006) 181 QGIG 301. 8 See MacArthur v WorkCover Queensland (2001) 167 QGIG 100, 101 (Hall P) and cases cited. 9 Nilsson v Q-Comp (2008) 189 QGIG 523, 526 (Hall P). 10 Coombes v Q-Comp (2007) 186 QGIG 680, 681 (Hall P); see also Newman v Blackwood [2015] ICQ 014, [4], [7] (Martin J). -- 5 of 20 -- 6 possibility that the Appellant was involved in other11 physical activity on the preceding weekend that might have given rise to any hip and back injury. [21] At the hearing the only concession made by the Respondent was that, at the relevant time, the Appellant was a "worker" for the purposes of s 11 of the Act. Consequently, the Appellant bears the onus of proving on the balance of probabilities that: (a) he sustained a personal injury to his back and hip; (b) the injury arose out of, or in the course of, his employment with Biggar Pty Ltd; and (c) his employment was a significant contributing factor to the injury. The nature of the injury - the threshold issue [22] The Appellant contends that, on 13 August 2012, he sustained an injury to his back and hip. [23] The description of the injury became less precise as the case progressed. The Notice of Appeal filed on 13 January 2014 sought a review of the Respondent's decision to reject the Appellant's "right hip and lumbar spine injuries." The decision sought in the Notice of Appeal referred to "hip and lumbar spine injuries." [24] In his opening address counsel for the Appellant, Mr Wright, referred to "hip and back injuries." In his final submissions Mr Wright repeated the reference to a "hip and back injury" but indicated that the precise injury has never been able to be determined. Although the source of the Appellant's back pain had not been identified, the pain was still there. [25] One difficulty facing the Appellant is the imprecision of the diagnosis of his condition. There seems to be no issue that he experienced and, at the time of the hearing, continued to experience pain. What is not clear is the extent and, more importantly, the source or sources of that pain. For the purpose of this case the question is whether that pain is caused by a back and/or hip injury. Only if that question is answered in the Appellant's favour will it be necessary to decide whether the injury arose out of, or in the course of the Appellant's employment, and whether his employment was a significant contributing factor to the injury. [26] I note that the Appellant gave evidence that he did not have a pre-existing condition (something that the Respondent did not concede), and there had not been any other accident, that could have caused his symptoms. Nor had anything occurred since the incident to make his symptoms worse. The nature of the injury - medical evidence [27] The medical evidence in this case is critical in determining whether the Appellant sustained an injury and, if so, the nature of that injury. That evidence comprised written reports and oral evidence from two doctors called by the Appellant: 11 I.e., unrelated to his employment by Biggar Pty Ltd. -- 6 of 20 -- 7 (a) Dr John Pentis, an orthopaedic surgeon; and (b) Dr Eric Donaldson, a general surgeon, and two doctors called by the Respondent: (a) Dr William Donnelly, an orthopaedic surgeon; and (b) Dr Leo Zeller, an orthopaedic surgeon. The medical records of Hume Street Medical Centre, where the Appellant's general practitioner Dr Ali Nejat practises, were also in evidence (Exhibit 4). [28] As noted earlier, the Appellant suffered from and was treated for a muscular and soft tissue injury said to be sustained as a result of the same workplace incident asserted in these proceedings. In particular, a right inguinal hernia repair was performed on the Appellant on 14 December 2012. Apparently that surgery was successful. To the extent that it refers to those injuries, the medical evidence cannot influence the outcome of this appeal. The evidence is only relevant to these proceedings to the extent that it does or does not provide support for a finding that the Appellant sustained an injury to his back and/or hip. [29] The medical evidence will be considered by reference to the chronological sequence in which the doctors examined the Appellant. [30] Dr Nejat: The medical records of Hume Street Medical Centre show that the Appellant saw Dr Nejat on a number of occasions between 14 September 2010 and 5 November 2012. For the purpose of this appeal it is relevant to consider Dr Nejat's notes of the consultations in the three weeks immediately after 13 August 2012. Those notes include the following statements: (a) 16 August 2012 17:00:50 "Severe pain and mass in his right groin after heavy lifting, very severe pain, came from Toowoomba hospital, emergency Dep, severe pain in movements. sedative effects of medication informed. Ultrasound of abdominal wall and/or pelvic CT scan was given with DD radiology. visit tomorrow to check." Tablets were prescribed. (b) 17 August 2012 09:44:58 "Happy with analgesic. He will have imaging this afternoon, visit Dr ASH to check." (c) 20 August 2012 14:17:11 -- 7 of 20 -- 8 "For claiming workcover, it happened during the work. Abdominal muscle tear. physio referral" On 20 August 2012 (at 14:25:35), Dr Najat appended the following entry to his consultation note of 16 August 2012: "Heavy lifting happened during work." The actions comprised printing a Q-Comp WorkCover Certificate and creating a letter of referral to James Wiltshire, a physiotherapist. Consistently with those entries, the workers' compensation medical certificate included a diagnosis of "abdominal muscular tear" which was consistent with the Appellant's stated cause of injury of "Heavy lifting at work". The Appellant's stated date of injury was 15 August 2012 and he was certified as not to work at all from 15 to 24 August 2012 (Exhibit 2). (d) 24 August 2012 11:31:33 "His Physio asked for imaging of his hip. CT scan of the hip. visit for the report." The actions were to print prescriptions for tablets and a Q-Comp WorkCover certificate. (e) 29 August 2012 16:11:06 "He has lots of pain in the right hip and groin. visit Specialist." Dr Nejat created a referral letter to Dr Anthony Wilson. [31] From those notes it appears that the first reference to a possible hip injury was on 24 August 2012, apparently in response to a request from the physiotherapist who was treating the Appellant. There is no reference to a possible back injury generally, or lumbar spine injury in particular, in Dr Nejat's notes. [32] Dr Donnelly: Dr Donnelly saw the Appellant on 29 October 2012 (more than two months after the alleged incident in the workplace) on the referral of Dr Nejat. The following extracts from Dr Donnelley's report to WorkCover dated 30 October 2012 (Exhibit 5) are relevant for the purposes of these proceedings: "1. Diagnosis of all conditions with specification of what is work related. A soft tissue injury to the right groin region. … 4. Comment on whether the mechanism of injury is consistent? -- 8 of 20 -- 9 The pain at the time of examination did not appear consistent with a musculoskeletal injury and more likely to be a soft tissue injury to the right groin region such as a sports hernia or muscle tear." [33] In his oral evidence, Dr Donnelly explained that musculoskeletal pain usually has aggravating factors and exacerbations in specific positions. The Appellant's pain at that time was exacerbated by very light touch the skin, which is not typical for a deeper pain. There are often other factors that may not be physical or associated with pathology that may cause pain at very light touch. Dr Donnelly included in his notes to the local doctor that the Appellant had significant psoriasis at the time, an observation that the Appellant confirmed in his evidence. [34] Having considered the reports of an MRI scan and a CT scan (which he described as "unremarkable and normal"), and having conducted a physical examination of the Appellant, Dr Donnelly did not think there was significant pathology in the hip or in the periarticular muscles around the hip that were caused by a work-related event that had given rise to those symptoms. Accordingly, he had excluded any surgically treatable disease in the hip joint or around the hip muscles. [35] Dr Donnelly noted that the Appellant had quite severe pain in the right groin region. The only other thing it could have been was a sports hernia (i.e., a small hernia) or an anterior or abdominal wall muscle tear. Dr Donnelly referred the Appellant to a general surgeon, Dr Donaldson, to exclude those factors by making an assessment of hernia orifices in the right groin region. [36] Although his was an initial assessment (as in the sense that there was not a definite diagnosis at that stage), and he was happy to review the Appellant if there was no evidence of a sports hernia, he did not see the Appellant again. [37] Dr Donaldson: Dr Donaldson gave oral evidence that he first saw the Appellant on 4 December 2012 and the Appellant had clinical evidence of a hernia. His pain was "quite lateral" but Dr Donaldson said that "it could certainly have been referred from the hernia." Having operated to repair the hernia on 14 December 2012, Dr Donaldson saw the Appellant on 7 January 2013. At that stage, there seemed to be some improvement but the Appellant still had ongoing pain. When Dr Donaldson reviewed the Appellant, the repair appeared sound [38] On 18 January 2013, Dr Donaldson wrote to Dr Zeller (Exhibit 11) stating that the Appellant "apparently injured his right hip and groin lifting for Dairy Farmers." Dr Donaldson noted that: (a) the Appellant was reviewed by Dr Donnelly, who could not find a reason for his hip pain; and (b) he (Dr Donnelly) reviewed the Appellant with a possible hernia and performed a laparoscopic right inguinal hernia repair (finding evidence of a small hernia); (c) following that procedure, there was improvement in the Appellant's condition; but -- 9 of 20 -- 10 (d) then the Appellant experienced ongoing pain which, it seemed to Dr Donaldson, "more lateral and radiating into his thigh." Dr Donaldson "felt" that the pain "may be coming from" the Appellant's back; and (e) he had organised an MRI of the Appellant's back which he asked Dr Zeller to review and advise on further management. [39] The Appellant saw Dr Donaldson again on 1 February 2013 and the Appellant indicated that the pain was no better than it had been when he first saw Dr Donaldson. The pain "seemed to be coming from around the back and down into his groin." Dr Donaldson arranged for the Appellant to have an MRI. Although Dr Donaldson did not have any experience looking at MRIs of the spine, the report suggested that the Appellant had some cord compression on the right side. Consequently, Dr Donaldson arranged for a referral to Dr Zeller, who is a back specialist. Although Dr Donaldson had not seen a letter of response from Dr Zeller, he had spoken to Dr Zeller who said that he was not convinced that the Appellant's symptoms were coming from the back. Dr Donaldson acknowledged that Dr Zeller is a very well- known back surgeon, that is his specialty, and Dr Donaldson said he "would certainly value his opinion … over mine" in regard to whether the pain was coming from the back or not. [40] Dr Zeller: Dr Zeller saw the Appellant on 23 January 2013, one month after the hernia repair procedure and more than five months after the alleged incident in the workplace. In his report to WorkCover on 8 February 2013 (Exhibit 6), Dr Zeller stated that the Appellant: "now reports be [sic] a lot of pain with radiation around the inner thigh to his buttock and also the right side of his body. He does not report any significant pain down the leg. … He reports that he has trouble is [sic] walking. His pain is slightly relieved by lying. He is not working. He also suffers with significant psoriasis. … He is also a type 1 diabetic and uses an insulin pump. … Clinical examination today reveals that he is very painful with any movement of the right leg causing severe right groin pain. He had difficulty sitting. He was limping due to pain in the right leg … The examination was unable to be performed to an optimal level due to his reported pain levels." [41] Dr Zeller noted that Dr Donnelly had stated that there was no injury or abnormality with the right hip. Dr Zeller referred the Appellant for MRI scan of the lumber spine. Having reviewed the MRI scan, Dr Zeller wrote: "There is no evidence of any pre-existing condition in the lumbar spine. There is a small disc bulge on the right of L5/S1. There is no irritation of either the L5 or S1 nerve root. I believe this is an incidental finding and is not related to his symptoms as his symptoms do not have any correlation with this finding. … -- 10 of 20 -- 11 I do not feel that he has an orthopaedic injury. He has a number of findings on examination that would indicate symptom exaggeration. MRI scan of the lumbar spine does not show any evidence of an injury that could be related to the events that he describes. It is my opinion that all reasonable investigation from an orthopaedic point of view has been undertaken. I do not believe that there is any evidence of a [sic] orthopaedic injury in this gentlemen." [42] Dr Zeller suggested ongoing supportive management, and possibly review by an independent medical specialist with respect to the Appellant's "ongoing symptoms and whether they are attributable to the workplace injury." [43] In his oral evidence, Dr Zeller explained that the lack of evidence of a pre-existing condition in the lumbar spine (e.g. spondylolisthesis or advanced disc degeneration) meant that the spine was not unhealthy. The small disc bulge on the right of L5-S1 was asymptomatic and of a type found in approximately 40 per cent of the population. His assessment was that the findings on the MRI scan did not correlate with the Appellant's symptoms, and those findings are probably incidental. Dr Zeller could not find a cause of the Appellant's symptoms in his lumbar spine. In other words, Dr Zeller could find no evidence that the Appellant had an orthopaedic injury. [44] According to Dr Zeller, there is not a consensus in worldwide literature or otherwise in discussions of experts that findings on an upright or non-supine MRI are any more clinically valuable for diagnosis than findings on a rest or supine MRI. [45] Dr Pentis: Dr Pentis examined the Appellant on 2 September 2013, more than a year after the alleged incident in the workplace. [46] Dr Pentis was not surprised that the Appellant did not seek medical treatment until the Thursday following the incident. He understood from the Appellant's history that the Appellant was not experiencing severe pain at that time. According to Dr Pentis, people can injure their back and not feel pain for a day or so but if they do something else subsequently and it tears the disc further then they can experience more pain. So people do not necessarily experience severe pain immediately they have injured the spine. Depending on what they do subsequently, they might experience pain at least one day (and up to three days or a couple of weeks) later. [47] Given the paucity of medical evidence to this point in relation to any back or hip injury, it is appropriate to quote or closely paraphrase what Dr Pentis reported (see Exhibit 7) following that examination. [48] Spine: Dr Pentis noted that the Appellant had been referred to orthopaedic surgeons to exclude problems with his back and had an MRI on the back which showed a "minor disc at L5/S1, slight bulging but no pressure on the root ends." [49] On examination, Dr Pentis noted that there was tenderness over the posterior supine iliac spine on the right hand side with pain radiating over the buttock towards the greater trochanter. The range of movement of the spine was poor in all directions, but apparently more so to the right than the left. The Appellant's spine was very stiff, very -- 11 of 20 -- 12 sore, and hypersensitive. An MRI of the lumbar spine showed that he had a paracentral disc protrusion at L5/S1 contacting the right exiting root and transiting the S1 nerve root without compression or deviation. There was no spinal canal stenosis. [50] Dr Pentis commented that the Appellant "may have strained his lumbar spine to some degree and caused some internal derangement to the L5/S1 disc on that right side". Later Dr Pentis stated that the Appellant has "more than likely torn to some extent the L5/S1 disc. Clinical signs are hard to estimate in this patient as he is all over the shop with them and it would not be prudent to operate on him with the current symptoms and signs that he presents with." [51] In his oral evidence, Dr Pentis explained, in relation to that last sentence, that the Appellant's "signs and symptoms were … sort of exaggerated to an extent" and it was difficult to tell what his exact problem is, particularly if one is looking towards operating on him. By contrast, if there are "hard, clear facts pointing to a disc lesion specifically at one level" the operation is likely to be more successful. Dr Pentis said that he is loath to operate on people like that because they "don't tend to do as well" and they "expect too much." [52] Dr Pentis acknowledged the other medical reports commenting on the MRI and the finding that the Appellant has degenerative changes to his spine. In his opinion, if there is a pre-existing degeneration, a person is weaker in the spine and more susceptible to aggravation of it in the long term. Impairment is a combination of the two factors. That observation underpinned his opinion that, in the absence of any history of problems previously, it was more likely that the Appellant's injury was caused by the workplace incident in question. [53] In relation to the evidence that the Appellant heard a snap and felt a lot of pain, Dr Pentis said that: (a) he had felt a twinge like an electric shock, or pain that then settles, but he had never felt a snap; (b) although he heard a lot of people say they hear a snap, he did not know whether the snap was part of a tear (and assumed it is not); (c) if someone tears a disc you should not hear a snap; (d) people who present saying it is a snap probably misinterpret it as something like an electric jab and they feel it is a snap or snappy pain. [54] On the assumption that the Appellant has damaged that disc "to an extent", Dr Pentis estimated that it would be a 6%-7% whole person impairment. However he qualified that by stating that there would be some degeneration in the region due to age and previous activities and this would be about 20% to 30% of that estimate. Dr Pentis also suggested that, if the Appellant did not improve, a further MRI might be of some benefit to see if there was progression of the disc and whether it would require excision. -- 12 of 20 -- 13 [55] Hip: Dr Pentis stated that the Appellant's doctor had referred him to the hip doctor at St Vincent's who had investigations performed, CTs and X-rays, and apparently there was a possibility that he had strained the hip abductors and the abdominal musculature. The Appellant was referred to general surgeons, had two hernias in his groin repaired, and was reviewed by surgeons who said there was no other treatment they could perform. [56] On examination, Dr Pentis noted that ranging the hip was poor in all directions, but that no gross pathology in relation to the hip was shown on CT scanning. An MRI of the hip showed no structural lesion, no labral tear, no bony oedema or fractures or stress fractures. [57] However, Dr Pentis commented that the Appellant "appears to have sustained a strain to the abdominal musculature and to his inguinal region where he has developed hernias". But "there doesn't appear to be any pathology that is amenable to surgical correction in the hip and it appears that he has strained the abductors of the hip. This will leave him with a 1%-2% whole person impairment long term due to the tears and strains." [58] Dr Pentis provided a further report on 28 January 2014 (Exhibit 8), in which he referred to unidentified copies of medical reports and imaging reports that had been provided to him by the Appellant's solicitors. Dr Pentis noted the suggestion in the reports of orthopaedic surgeons that there was some "exaggerated symptomatology", and he found similar problems with the amount of pain that the Appellant was experiencing. [59] In his oral evidence, Dr Pentis stated that, when the Appellant was examined, "basically everything was quite sore and quite tender and there was - what you would consider overreaction to some of the tests you were doing and palpitation." Drawing on his experience as a doctor, Dr Pentis expressed the view that when he saw the Appellant in September 2013, more than one year after the incident, he did not expect the Appellant "would be that bad." Although a person might aggravate their injury a year later (e.g. by lifting or bending), "you usually don't exhibit extreme pain." [60] Despite that qualification, Dr Pentis expressed the following views in relation to whether the Appellant had injuries to his spine and hip. [61] Spine: Dr Pentis believed that the Appellant had caused damage to the lower spine, "more than likely an injury to the L5/S1 disc if he hasn't had any problems with that area previously as he said." He noted that an MRI of the lumbar region of the spine was diagnosed as an L5/S1 protrusion on the right side with some possible nerve root impingement and "this could be causing his symptomatology." Dr Pentis referred to a difference between a lying down MRI and a standing MRI (which, so far as he knew, no one in Australia was performing) and suggested that when the Appellant stands up or puts load on the spine it causes further difficulties. Even in the absence of such an MRI, Dr Pentis was willing to "assume" that the Appellant has "a problem with the lumbosacral region of the spine." He suggested that the only other investigation that could be carried out was a repeat MRI (even in a supine position) to see if there is any difference in the appearance of the lower discs. -- 13 of 20 -- 14 [62] Hip: Dr Pentis believed that the Appellant had caused damage to the hip musculature, especially the abductors. However, an MRI of the hip showed no major pathology, so Dr Pentis "would assume it is a soft tissue injury". The fact that the Appellant is favouring his back and has problems with the hip abductors may be adding to the strain in the region, and this could be considered a soft tissue injury. [63] In his third and final report dated 13 March 2014 (Exhibit 9), Dr Pentis referred to an MRI report dated 6 March 2014 on the Appellant's lumbosacral spine, multi-positional (Exhibit 10). Among other things he noted that at the L5/S1 there was "diffuse and central midline osteophytes creating a mild canal to moderate right recess stenosis with potential irritation of the right S1 nerve root." There did not appear to be any significant change when a dynamic MRI was performed. [64] According to Dr Pentis, the Appellant has a degenerative joint disease in the lower spine and is exhibiting signs of spinal stenosis, narrowing of the canal due to degeneration in the facet joints. Superimposed on this he has "more than likely" had injuries to the lower two discs causing further damage and compromise. The most specific one appears to be L5/S1 where there "may be" irritation of the S1 nerve root. In assessing the Appellant's impairment, Dr Pentis estimated that: (a) a pre-existing degenerative change in the lumbosacral region would equate to a 5% lumbar whole person impairment; and (b) a further 7% to 8% lumbar whole person impairment would be due to damage to the disc at L5/S1 and more than likely a further internal derangement. The nature of the injury - submissions [65] Appellant's submissions: The Appellant submits that his claim for compensation for the hip and back injury on 13 August 2012 is one for acceptance, and hence that the decision of the Respondent be set aside. [66] The written submission refers to a "traumatic strain" and an "inguinal tear, and some non-specified surrounding injuries." It notes that the "precise injury has never been able to be determined. Orthopaedic opinion is mixed, and despite the initial inguinal tear, symptoms of back and hip pain have persisted despite there being no initial radiographic indicators." The submission continues: "The appellant has always submitted that he strained his musculature and that this has caused the pain whether neurological, musculoskeletal psychological or otherwise." [67] In oral submissions, counsel for the Appellant stated that, although the source of the back pain had not been identified, the pain was still there. He contended that nothing much turns on whether it is, for example, neurological or muscular. Although the inguinal hernia has been excluded as the cause, that does not mean that the Appellant does not have a soft tissue injury (though counsel described the evidence as "unclear"). He referred to the evidence of Dr Donaldson to the effect that patients have pain after inguinal hernia surgery but not the sort of pain that the Appellant was experiencing. -- 14 of 20 -- 15 [68] The Appellant relies primarily on evidence of Dr Pentis in relation to causation, the Appellant's delay in seeking care, and the nature and description of the Appellant's symptoms. The Appellant notes that Dr Pentis was the only independent medical examiner whose evidence was adduced. The other doctors were treating practitioners. [69] The Appellant submits that some of Dr Nejat's consultation notes were so limited as to be meaningless, and concedes that he might have been wise to call Dr Nejat in relation to the Appellant's injuries and any apparent disparity between the notes for 17 and 20 August. However, he also submits that it is possible to find that the amended entry for 16 August 2012 was a doctor amendment rather than any sort of coercion by the Appellant to have the doctor change the story. [70] The Appellant also submits that, despite only having seen the Appellant on one occasion, Dr Zeller revised his opinion over the intervening period from not feeling that there was such an injury to asserting that there was no evidence of an orthopaedic injury. [71] Counsel for the Appellant also sought to minimise any apparent distinction between the references in the medical records of Dr Nejat to "heavy lifting" and Dr Donaldson's reference to "lifting" and the Appellant's evidence about dragging the stack of milk cartons, on the basis that whichever term is used "it's a matter of exertion." [72] The Appellant apparently seeks to draw some adverse inference from the absence in these proceedings of: (a) the hospital records that relate to these injuries which, he asserts, were not sought by the Respondent; (b) the records of Dr Wilson at St Vincent's Hospital, who is the Appellant's first treating specialist; (c) the records of Dr Macartney, the only independent medical examiner for the Respondent. [73] In my view, it would be inappropriate to speculate as to the contents of those records, and it is not apparent what purpose any or all of those records would have served. Rather, the question is whether the Appellant has discharged his onus of proving that he suffered the claimed injury to his right hip and lumbar spine and, if so, whether the injury satisfies the definition in s 32(1) of the Act. The Respondent is not required to prove otherwise. [74] Respondent's submissions: The Respondent submits that the Appellant has not established that he has an injury to his right hip and lumbar spine. [75] Although the Respondent acknowledges that this is not a trial by expert, and that it is for the Commission to decide whether the Appellant suffered the claimed injury, it submits that the medical evidence is against the Appellant. In essence, the Respondent: (a) notes that both Dr Donnelly and Dr Zeller were clear that there was no evidence of any orthopaedic injury in the Appellant, and their evidence was not seriously challenged in cross-examination; -- 15 of 20 -- 16 (b) also relies on Dr Donaldson's evidence that he would defer to the opinion of Dr Zeller, given Dr Zeller's expertise; (c) submits that the opinions of Dr Donnelly and Dr Zeller should be accepted; (d) describes Dr Pentis' report as ambiguous, and notes that he did not examine the Appellant until more than 12 months after the alleged incident; (e) refers to Dr Pentis' observations that the Appellant was exaggerating his symptoms and was "all over the shop" in his presentation of symptoms, and his statement that it would not be prudent to operate on the Appellant in these circumstances; (f) notes that the history given to Dr Pentis was incomplete, in the sense that the Appellant did not report to Dr Pentis that he had been admitted to hospital on the day immediately after he says he suffered the injury; (g) submits that little weight should be given to the opinion of Dr Pentis, including because the other doctors were treating practitioners. [76] The Respondent does not suggest that Dr Nejat was coerced into changing his notes. It simply submits that he changed his notes when, for the first time, on 20 August 2012 he was told by the Appellant that this incident occurred at work. Any criticism of Dr Nejat's notes might have been remedied if the Appellant had called him to give evidence. [77] The Respondent also submits that any soft tissue injuries were covered by the earlier accepted claim which is not part of this appeal. Rather, this appeal is all about damages for hip and lumbar spine injury. The notice of appeal refers to "right hip and lumbar spine injuries" and "hip and lumbar spine injuries." Leaving aside precise terminology, the appeal is clearly directed towards hip and lumbar spine injury not some soft tissue injury. The fact that the Appellant states that the evidence is unclear as to what injury was suffered highlights the problem for him. It is for the Appellant to prove that injury, and if he cannot identify the nature of the injury then his appeal must fail. The nature of the injury - consideration and conclusion [78] The threshold issue is whether the Appellant suffered an injury of the type claimed in his notice of appeal, namely "right hip and lumbar spine injuries" or "hip and lumbar spine injuries." Despite the Appellant's submissions that the Commission could find more broadly in relation to some other ill-defined, or indeed undefined, back or hip injury, I do not think it is open for the Commission to do so. Irrespective of whether the Commission could do so as a matter of law, the evidence does not support some alternative finding in relation to the nature of the Appellant's injury (if any). [79] The Commission operates in a legal context not only as to the definition of "injury" in s 32 of the Act, but also in how to decide whether the Appellant has such an injury. The Commission's duty is to find ultimate facts and, so far as it is reasonably possible to do so, to look not merely at the expertise of the expert witnesses, but to examine -- 16 of 20 -- 17 the substance of the opinion expressed and (where experts differ) to apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted.12 [80] I note also that: (a) the issue will not be resolved by counting witnesses;13 and (b) if it is open to the Commission to prefer one body of evidence to the other on grounds fairly discerned, the Commission should express its reasoned preference.14 [81] The Appellant's evidence to the Commission, and his accounts to the examining doctors, is to the effect that he continues to suffer pain despite an apparently successful operation for a hernia. He attributes that pain to a hip and back injury. [82] The only expert evidence in support of that conclusion is found in parts of the written reports and oral evidence from Dr Pentis. The Respondent describes the report of Dr Pentis as "ambiguous" and I would describe it as ambivalent or equivocal in relation to whether the Appellant has the claimed injury. That is not a criticism of Dr Pentis, but an observation about the import of his assessment of the Appellant's condition. [83] In relation to the Appellant's spine, the most that can be drawn from it in favour of the Appellant are qualified statements that: (a) the MRI showed "a minor disc at L5/S1, slight bulging but no pressure on the root ends" and there is no compression or deviation of the S1 nerve root and no spinal canal stenosis; (b) however, the L5/S1 protrusion on the right side "could be causing his symptomology;" (c) the Appellant "may" have strained his lumbar spine "to some degree" and caused some internal derangement to the L5/S1 disc on the right side, and "more than likely" has torn to some extent the L5-S1 disc; (d) the MRI report dated 6 March 2014 showed there was diffuse and central midline osteophytes creating a mild canal to moderate right recess stenosis with potential irritation of the right S1 nerve root, showing that the Appellant has a degenerative joint disease in the lower spine and exhibiting signs of spinal stenosis; 12 Holtman v Sampson [1985] 2 Qd R 472, 474 (DM Campbell, Macrossan and Thomas JJ). 13 Monroe Australia v Campbell (1995) 65 SASR 16, 27 (Bollen J) quoting Sotiroulis v Kosac (1978) 80 LSLJ 112 (Wells J). 14 Monroe Australia v Campbell (1995) 65 SASR 16, 27 (Bollen J) quoting Sotiroulis v Kosac (1978) 80 LSLJ 112 (Wells J). -- 17 of 20 -- 18 (e) Dr Pentis was willing to "assume" that the Appellant has "a problem with the lumbar sacral region of the spine." [84] Dr Pentis suggested, in relation to the cause of the injury, that: (a) superimposed on the information in the MRI report, the Appellant has "more than likely" had injuries to the lower two disks causing further damage and compromise; (b) if there is a pre-existing degeneration, a person is more susceptible to aggravation of it in the long term and hence, in the absence of any history of problems previously, it was more likely that the Appellant's injury was caused by the workplace incident in question; (c) if the Appellant has not had any problems with that area of his spine previously, he caused damage to the lower spine. That opinion evidence was clearly predicated on there not being any other event that might have given rise to the Appellant's symptoms or any other pre-existing condition. To some degree it least, both those matters were in contention in these proceedings. [85] As to the Appellant's hip, Dr Pentis gave evidence that: (a) by reference to investigations performed by the hip doctor at St Vincent's Hospital, apparently there was a possibility that the Appellant had strained hip abductors and the abdominal musculature; (b) when he examined the Appellant, Dr Pentis noted that ranging the hip was poor in all directions, but that no gross pathology in relation to the hip was shown on CT scanning and an MRI of the hip showed no structural lesion, no labral tear, no bony oedema or fractures or stress fractures; (c) there does not appear to be any pathology that is amenable to surgical correction in the hip; (d) Dr Pentis believed that the Appellant had caused damage to the hip musculature, especially the abductors, but as an MRI of the hip showed no major pathology, he assumed it is a soft tissue injury. [86] The opinions and diagnosis of Dr Pentis have to be assessed in light of his other observations that: (a) clinical signs in relation to the Appellant's spine were "hard to estimate" because he was "all over the shop with them;" (b) as with the orthopaedic surgeons who suggested there was some "exaggerated symptomology," Dr Pentis found similar problems with the amount of pain that the Appellant was experiencing; -- 18 of 20 -- 19 (c) when the Appellant was examined there was an overreaction to some of the tests; (d) it was difficult to identify the Appellant's "exact problem;" and (e) it would not be prudent to operate on the Appellant with his current symptoms and signs, which were "sort of exaggerated to an extent." [87] The observations of and opinions expressed by the other doctors whose evidence is before the Commission are to the effect that there is no clinical support for a finding that the Appellant has such an injury. In summary: (a) Dr Nejat made no observations about hip or back injuries, but noted that the Appellant's physiotherapist had asked for imaging of his hip (24 August 2012) and the Appellant reported pain in his right hip on 29 August 2012; (b) Dr Donnelly diagnosed the Appellant's pain as more likely to be a soft tissue injury to the right groin, considered the results of an MRI and CT scan as "unremarkable and normal," and did not think there was significant pathology in the hip or muscles around the hip that were caused by a work related event that have given rise to those symptoms; (c) Dr Donaldson gave evidence that the Appellant had clinical evidence of a hernia (which he repaired on 14 December 2012), the Appellant experienced ongoing pain which Dr Donaldson "felt" might have been coming from the Appellant's back, observed that the MRI report suggested that the Appellant had some cord compression on the right side, and referred the Appellant to Dr Zeller whose specialist opinion of Dr Donaldson values; (d) Dr Zeller reviewed an MRI scan of the Appellant's lumbar spine and said:  there was no evidence of any pre-existing condition in the lumbar spine and his spine was not unhealthy;  there was a small disc bulge on the right of L5/S1 which was asymptomatic, but there was no irritation of either the L5 or S1 nerve root;  he believed this was not related to the Appellant's symptoms;  the MRI scan did not show any evidence of an injury that could be related to the events that the Appellant described;  the Appellant has a number of findings on examination that would indicate symptom exaggeration;  all reasonable investigation from an orthopaedic point of view had been undertaken, and he did not believe there was any evidence of orthopaedic injury;  he could not find the cause of the Appellant's symptoms in his lumbar spine. -- 19 of 20 -- 20 He also observed that Dr Donnelly stated there was no injury or abnormality with the right hip. [88] Having regard to the evidence as a whole, the respective qualifications of the doctors and the times when they examined the Appellant, I am not satisfied that there is sufficient objective evidence from which to infer that the Appellant had in late 2012 an injury to his hip or lumbar spine. Consequently, I conclude that the Appellant did not suffer an injury to his hip or lumbar spine. [89] It follows from that conclusion that it is not necessary to consider how the injury was caused and in particular whether: (a) the injury arose out of, or in the course of, the Appellant's employment with Biggar Pty Ltd; and (b) his employment was a significant contributing factor to the injury. Orders [90] For the reasons given above: (a) the appeal is dismissed (b) the decision of the Respondent is confirmed (c) the Appellant is to pay the Respondent's costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission. [91] Order accordingly. -- 20 of 20 --