Cameron v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 205

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Cameron v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 205 PARTIES: Cameron, Kerri Maree (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2014/317 PROCEEDING: Appeal against decision of the Workers' Compensation Regulator DELIVERED ON: 27 November 2015 HEARING DATES: 4, 5 March 2015 (Hearing) 15 July 2015 (Hearing) 5 August 2015 (Appellant Submissions) 15 October 2015 (Respondent Submissions) HEARD AT: Hervey Bay and Brisbane MEMBER: Industrial Commissioner Knight ORDERS 1. The appeal is upheld; 2. The decision of the Regulator is set aside; 3. The Respondent is to pay the Appellant's costs of and incidental to the appeal to be agreed. In the event agreement cannot be reached between the parties with respect to costs the Appellant has the liberty to apply. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION – where the worker sought compensation for a back injury - whether injury arose out of or in the course of employment - degenerative back disorder - whether employment is a significant contributing factor - where Appellant bears onus of proof - Appeal upheld. CASES: Workers' Compensation and Rehabilitation Act 2003 s 32 -- 1 of 18 -- 2 Kudryavtseva v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 053 Newberry v Suncorp Metway Insurance [2006] QCA 48 Heald v Q-COMP (2004) 177 QGIG 769 JBS Australia Pty Ltd and Q-COMP (C/2012/35) - Decision Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100 Carman v Q-COMP 186 QGIG 512 [513] Dinca v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 036 Fielder v WorkCover Queensland [2004] 175 QGIG 871 APPEARANCES: Ms H. Blattman, Counsel instructed by Shine Lawyers. Mr F. Lippett, of Counsel, directly instructed by Simon Blackwood (Workers' Compensation Regulator). Decision [1] This is an appeal by Ms Kerri Maree Cameron ("the Appellant") pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act") against a decision of the Regulator ("the Respondent"). The decision of the Regulator confirmed the earlier decision of WorkCover to reject Ms Cameron's application for compensation for a L4 disc bulge and sustained trochanteric bursitis, in accordance with s 32 of the Act. Grounds of Appeal [2] The grounds of appeal filed by the Appellant are as follows: a. "That the Respondent erred in rejecting the Appellant's Notice of Claim for Damages in accordance with section 32 and 258 of the Workers' Compensation and Rehabilitation Act 2003." b. "That the Respondent erred in confirming the decision of WorkCover to reject the hip injury claimed by the Appellant in accordance with section 32 of the Workers' Compensation and Rehabilitation Act 2003." c. "That the Respondent erred in confirming the decision of WorkCover to reject the back injury claimed by the Appellant in accordance with section 32 of the Workers' Compensation and Rehabilitation Act 2003." [3] Facts relied on : i. "The Appellant has received further evidence from Dr Ward. Dr Ward confirms on the balance of probabilities that the Appellant's back injury with radiating pain to the hip and leg was caused as a result of the over period of time events set out in the Notice of Claim for Damages. -- 2 of 18 -- 3 ii. In Dr Ward's report dated 4 July 2014, Dr Ward confirms that the heavy repetitive lifting the Appellant has performed over a period of time, in particular lifting the trailer tailgate has caused damage to her spine. These activities have caused microtraumas to the Appellant's spine which are amplified by activities that are repetitive or heavy. iii. Dr Ward confirms on the balance of probabilities she considers that in the absence of heavy lifting tasks performed over a period of time the Appellant would not have experienced an acute onset of pain on 5 December 2012 and on 14 August 2013. iv. Dr Ward also confirms that the mechanism of lifting and lowering the tailgate is consistent with the injuries the Appellant sustained to her hip and lower back. v. Dr Steadman stated that the Appellant has a degenerate lumbar spine. vi. Dr Ward recognizes the pre-existing degeneration when she notes that "when normal tissues perform there is microtrauma when performing repetitive and/or heavy tasks. They can cause microtrauma." vii. It is the Appellant's position that the medical evidence supports, on the balance of probabilities that her back and hip injuries arose out of the course of her employment and her employment was a significant contributing factor to those injuries." Issues for Determination [4] Ms Cameron carries the burden of proof in this appeal. She must prove on the balance of probabilities that: a. Her personal injury, namely sustained trochanteric bursitis and L4 foraminal disc protrusion with impingement of the left L4 nerve root; is one arising out of or in the course of employment; b. Her employment with Queensland Health is a significant contributing factor to the injury. [5] Section 32 of the Act defines "injury" as: "32 Meaning of injury 1) An injury is personal injury arising out of, or in the course of, employment if - a) for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury; or b) for a psychiatric or psychological disorder - the employment is the major significant contributing factor to the injury. 2) However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies. 3) Injury includes the following - -- 3 of 18 -- 4 a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease; b) an aggravation of the following, if the aggravation arises out of or in the course of, employment and the employment is a significant contributing factor to the aggravation; (i) a personal injury other than a psychiatric or psychological disorder: (ii) a disease; (iii) a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation; ba) an aggravation of a psychiatric or psychological disorder, if the aggravation arises out of, or in the course of, employment c) loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing; d) death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to casing the injury; e) death from a disease mentioned in paragraph a), if the employment is a significant contributing factor to the disease; f) death from an aggravation mentioned in paragraph b), if the employment is a significant contributing factor to the aggravation. 4) For subsection (3)(b) and (ba), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation. 5) …" [6] In Kudryavtseva v Simon Blackwood (Workers' Compensation Regulator),1 Neate C considered the authorities in so far as they related to onus, noting: "Although 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. (See MacArther v Workcover Queensland (2001) 167 QGIG 100, 1010 (Hall P) and cases cited)." And later: 1 Kudryavtseva v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 053. -- 4 of 18 -- 5 "In a case where expert medical evidence is led, before any such expert medical evidence be of value, the facts upon which it is founded must be provided by admissible evidence (see Coombes v Q-Comp (2007) 185 QGIG 680, 681)." [7] In Newberry v Suncorp Metway Insurance2 Keane JA, with whom de Jersey CJ and Muir J agreed said: "[27] It cannot be disputed that, when s 32 of the WCR speaks of 'employment' contributing to the worker's injury, it is referring to employment as a set of circumstances, that is to the exigencies of the employment of the worker by the employer. The legislation is referring to 'what the worker does in fact does during the course of employment'." [8] As to aggravation of an injury, in Heald v Q-COMP3, Hall P confirmed the view of Dr Turner that there are two types of compensable aggravation: "A degenerative condition may be aggravated in the sense that it may be made worse, i.e. after the aggravation the degenerative disorder is worse than it was before. But there can also be an aggravation in the sense of an increase of symptoms associated with a degenerative condition which, after the cessation of the symptoms, returns to its pre-aggravation state." [9] In JBS Australia Pty Ltd and Q-COMP4 Hall P confirmed the need to establish that: "employment must significantly contribute to the occurrence of the injury. It is insufficient to establish that the employment was the setting in which the aggravation occurred or the background to its occurrence." [10] Likewise, in Croning v Workers' Compensation Board of Queensland5 citing Tophams Ltd v Sefton (1966) 1 All E. R. 1039, de Jersey P held that employment needs to be a "real effective cause" of the injury and not merely the setting or background in which the injury occurs. [11] Relevant to degenerative injuries and the onset of pain Hall P stated in Carman v Q-COMP6: "It must be remembered that Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181 is an often cited but ageing authority… Pleming v Workers' Compensation Board of Queensland, ibid, does not decide that a worker afflicted with a degenerative back suffers an injury if the back becomes painful at work. Neither does Pleming, op. cit., establish that a worker with a degenerative back will suffer an injury where the back becomes painful or more painful and the employment is a significant cause of the onset or intensification of pain." 2 Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48. 3 Heald v Q-COMP (2004) 177 QGIG 769. 4JBS Australia Pty Ltd and Q-COMP (C/2012/35) - Decision <http://www. qirc. qld. gov. au>. 5Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100. 6 Carman v Q-COMP 186 QGIG 512 [513]. -- 5 of 18 -- 6 [12] In Fielder v WorkCover Queensland7 His Honour President Hall wrote: "The medical evidence is such that one must accept, as has been accepted in other cases, that the degenerative spinal disease had reached the point at which it might be exacerbated and rendered symptomatic by stretching to get something out of a pantry, bending over to tie shoe laces or turning in bed. What happened to the worker in this case might well have happened to him at his home, on a council bus or at a religious service. However, once the Industrial Magistrate accepted that the incident of 3 April 2001 did in fact occur and accepted that there was proximity of time between the incident and the onset of the pain it was, in the absence of any evidence about a competing causal incident, inevitable that the Industrial Magistrate would conclude on the balance of probability that the worker's employment had been "a significant contributing factor to the aggravation". On the state of the evidence of any other conclusion would be speculation." [12] The appeal to the Commission is by way of a hearing de novo. Witnesses Ms Cameron [13] Ms Cameron started work at Maryborough Hospital ("the Hospital") in April 2012. Her hours varied each week. Ms Cameron was trained for each of the positions at the Maryborough Hospital set out in duty statements associated with kitchen support roles. From September 2012, Ms Cameron mainly worked as Early Kitchen Support and Late Kitchen Support. Mr Cameron [14] Mr Cameron is the Appellant's husband. His evidence was Ms Cameron had complained of pain, ache and discomfort after her work shifts and that he recalled applying Deep Heat both before and after Ms Cameron commenced her role at the hospital. Ms Zepter [15] Ms Zepter was called to give evidence by the Appellant. Ms Zepter was a co-worker of Ms Cameron and she recalls an occasion of Ms Cameron complaining about her back pain. Dr Scott Campbell [16] Dr Scott Campbell is a Neurosurgeon called to give evidence by the Appellant. He diagnosed a musculo-skeletal injury. Dr Nicola Ward [17] Dr Nicola Ward is an Orthopaedic Surgeon called to give evidence by the Appellant. Dr Nicola Ward produced three reports. Dr Ward said that Ms Cameron had sustained trochanteric bursitis and lumbar spine VRE category 2. 7 Fielder v WorkCover Queensland [2004] 175 QGIG 871 -- 6 of 18 -- 7 Mr Jacobs [18] Mr Jacobs was called to give evidence by the Respondent. He is the Supervisor of Food Services at Maryborough Base Hospital. Mr Jacobs signed the Incident Investigation forms. Associate Professor Peter Steadman [19] Associate Professor Steadman is an Orthopaedic Surgeon called to give evidence by the Respondent. He prepared a medical report dated 28 May 2014 diagnosing Ms Cameron with a degenerative back condition. Evidence [20] Ms Cameron commenced work at the Hospital in April 2012. Whilst her hours varied from week to week, on average she worked an 8 hour shift and she worked approximately 29.66 hours a week. At times she would work up to 40 hours per week. [21] Whilst Ms Cameron was trained for a variety of support roles in the kitchen area, she predominantly worked as an Early Kitchen Support and Late Kitchen Support worker. She had also undergone training for these positions. [22] The Hospital kitchen is situated at the Hospital and is connected to the Hospital. Located on the grounds of the Hospital was a nursing home, Yaralla Place, which was owned by Queensland Health. [23] At any time there could be 120 patients in the Hospital and 100-120 patients at Yaralla Place. The Hospital kitchen serviced the patients living in the Yaralla Nursing home. Lifting and closing the tailgate [24] Ms Cameron was required to drive an electric vehicle when visiting Yaralla Place. There was a trailer attached to this vehicle. There was a tailgate, made of metal, which Ms Cameron was required to lift up to approximately 60 times per day. [25] The tailgate was approximately two and a half metres high from where it connected to the trailer to the top of the tailgate. The handles on the side of the tailgate were approximately 1.4 metres to 1.7 metres off the ground and at about head height8. [26] At approximately three-quarters of the way up on the side of the tailgate, there was a handle which was situated above head height.9 To perform the task of using the handle and while lifting or lowering the tailgate, Ms Cameron had to bend her back.10 [27] Ms Cameron believed that the weight of the tailgate was between 50 and 60 kg. There was a hydraulic arm to the tailgate and the Appellant says that "it was so small as to be indiscernible" from the photographs which were submitted as Exhibit 2 8 Transcript of Proceedings, Kerri Cameron v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/317, 5 March 2015) 20. 5. 9 Transcript of Proceedings, Kerri Cameron v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/317, 4 March 2015) 93. 10 Transcript of Proceedings, Kerri Cameron v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/317, 4 March 2015) 94. -- 7 of 18 -- 8 [Appellant's submissions - page 7]. Mr Jacobs said that the tailgate had been weighed by the Hospital OHS and it was determined that the lifting of the tailgate would be a two person lift or closure.11 [28] Mr Jacobs was asked to describe the level of difficulty in the lowering process. He stated that in effect an employee would be required to work with the other employee to ensure that correct procedures for lifting, raising and lowering were utilized. [29] The Duty Statements for both the early and late kitchen support roles setting out the sequence of the duties include references to the raising and lowering of the tailgate, and the requirement for that particular duty to be undertaken with the support of another kitchen assistant or support person. Pushing the Trolleys [30] Twenty trays can be held by each trolley and each trolley weighs around 30 kgs (when not loaded). The trolleys are made out of plastic. The weight increased significantly when loaded with trays. Ms Cameron had to push trolleys onto the tailgate and onto the trailer. Ms Cameron indicated this task would sometimes lead to back ache and/or pain. [31] Ms Zepner's evidence was that the large blue food trolleys were difficult to move on and off the trailer. Ms Zepner stated: "Well if you had a full trolley, it was difficult, because when you go to push it on, sometimes the little wheels on the trolley, if you didn't get it directly even on that silver bit there, it would go off, so you'd have to pull the trolley back, you'd have to have another go, normally probably take you a minute or so sometimes, if you couldn't get it right. If the tailgate wasn't situated properly … there would be a dip, so you'd have to push your trolley a bit harder to get it up onto there - onto the tailgate."12 Other work duties performed by Ms Cameron [32] Ms Cameron was required to move crates of milk and would sometimes have to bend to pick up the crate which held nine, two litre bottles of milk and bread and other foodstuffs. As part of her role, she also put away foodstuffs from food pallets. The pallet was moved by using a jack pushed into the pallet and pumped up. The pallet was then pushed into the corridor of the kitchen near the storeroom. The foodstuffs were then required to be put away. Ms Cameron's evidence was that the pallets were heavy and awkward to get moving.13 11 Transcript of Proceedings, Kerri Cameron v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/317, 5 March 2015) 4. 12 Transcript of Proceedings, Kerri Cameron v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/317, 5 March 2015) 25. 13 Transcript of Proceedings, Kerri Cameron v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/317, 4 March 2015) 18. -- 8 of 18 -- 9 [33] Ms Cameron also regularly worked on the plating line. The number of trays on the conveyor belt could be as many as 100 items. Sometimes when twisting and turning for items to put onto the conveyor belt, Ms Cameron suffered some back pain.14 [34] Further bending was required when Ms Cameron was cleaning out industrial pots that the cooks had used and also moving containers of chemicals to the dishwasher area. She sometimes experienced pain when she was moving the bottles of chemicals15. [35] Other duties involved preparing vegetables (with pumpkins said to similar in size to a basketball) and cleaning duties which she said could be challenging work. In cross-examination, Ms Cameron's evidence was that the preparation of vegetables did not cause her any pain. [36] Ms Cameron's husband, who she no longer resided with at the time of the hearing, vaguely recalled rubbing Deep Heat into her back both before and after she commenced working at the hospital somewhere between one and three times a week His evidence, although contradictory at times, was that she "would not so much complain, but she'd say she had sore muscles…" Later, following the workplace incident in August 2013, Mr Cameron said he noticed his wife was flinching a lot and complained more than before. December 2012 injury [37] In December 2012, Ms Cameron said she suffered back pain when she was taking trays off the clean end of the dishwasher. While holding the trays she twisted and felt pain. She submitted an Incident Report as follows: "Taking trays off the clean end, turned around and felt a twinge in the muscle left side lower, strain after happening... Whole muscle tightened and have pain shooting down after happening." [38] Both Ms Cameron's incident report and her General Practitioner's records make reference to lower back pain. Notwithstanding that reference, Ms Cameron said in evidence that the pain was more in the middle of her back. Patient records for Ms Camerson's consultation for an appointment with her General Practitioner on 7 December 2012 note: "low back pain; 2 days ago while at work she hurt her back while she was unloading the dishwasher she twisting (sic) to the left and all of a sudden she had back pain in ther lowesr (sic) back more on the elft (sic); she works in the hospital kitchen; had massage yesterday; tenderness over the left side of the lower back…" [39] In the patient notes for a follow-up visit three days later, Ms Cameron confirmed her lower back was not as painful as it previously had been, suggesting she would return to work the following day. 14 Transcript of Proceedings, Kerri Cameron v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/317, 4 March 2015) 92. 15 Transcript of Proceedings, Kerri Cameron v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/317, 4 March 2015) 65. -- 9 of 18 -- 10 August 2013 injury [40] On 14 August 2013, Ms Cameron, after commencing work at 11.00am, began delivering large blue trolleys loaded with trays, from the plating line into the rehabilitation unit which was located on a different floor in the Hospital. On the same day she performed dishwasher duties, cut up fruit and bagged cutlery. At around 5.50pm, Ms Cameron was walking through the kitchen and upon her return she felt a sharp stabbing pain in her left hip. This pain commenced some 4 minutes after she had been moving a trolley. She felt pain in her lower back about one hour later. In an Incident Investigation Form dated 27 August 2013, Ms Cameron's supervisor, Mr Jacobs wrote: "6.50pm I noticed Kerri moving slowly taking trays out of the meal trolley and I asked if she was ok. She said that she had pain in her left hip area. I told Will earlier on … I said you should go and get checked out at A & E said I'll be careful. … Will Ford noticed Kerri place her hand on her left hip and asked Kerri if she was ok. Kerri stated she had felt a sharp pain in her hip area." [41] Ms Cameron concluded her shift at 8.00pm that evening. [42] On 15 August 2013 when Ms Cameron was called back to work in the early morning because of a staff shortage, she said that she could hardly walk. She continued with her duties and saw her General Practitioner after work. Ms Cameron had said that she was in too much pain on that day and asked other colleagues to perform some of her duties.16 She said she also advised her supervisor that she in pain. 17 [43] The General Practitioner's records confirm her attendance for an appointment on 15 August 2013, noting: "yesterday at work suddenly felt pain in her left pelvis; got worse later and now has low back pain as well; has had 8 painkiller today she claims…limps, can't walk on toes or heels, tender to L3 to L5, tender left." Medical History [44] Ms Cameron said she had not recorded the degree of pain in her lower back or hip prior to 14 August 2013. Previously she had often felt aching and general soreness of her lower back.18 [45] Prior to 14 August 2013 she described her pain as minimal and that she'd take Panadol for relief. She reported muscle strain in her lower back in 1994 where she did not 16 Transcript of Proceedings, Kerri Cameron v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/317, 4 March 2015) 71. 17 Transcript of Proceedings, Kerri Cameron v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/317, 4 March 2015) 71. 18 Transcript of Proceedings, Kerri Cameron v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/317, 5 March 2015) 8, 15 -- 10 of 18 -- 11 work for two days. She also had a fall from a horse in 2010 where her pain was not described as pain in her back, but rather that her body was aching and she had a sore elbow.19 She said there were no ongoing back issues concerning this fall. Medical Evidence [46] Dr Ward diagnosed bursitis and an L4 protrusion, with radiculopathy. Ms Cameron had presented with a Trendelenburg gait and a clinical finding indicating bursitis. This was supported by MRI images showing the presence of oedema and tendinosis around the trochanter. [47] Dr Ward said that Ms Cameron had a degenerative disease between L2 and L5. However, she did not think that contributed to her bursitis of L4. [48] As to the date on onset of Ms Cameron's injury, Dr Ward accepted that the bursitis and the L4 disc protrusion occurred on 14 August 2013. She formed that view based on Ms Cameron's description of the events of 14 Augusts 2013 (which included managing a heavy trolley and the repetitive twisting and turning involved in putting condiments and cutlery on a tray) and the onset of pain at that time; the clinical and radiological findings consistent with that description and the fact that Ms Cameron subsequently went on to have a nerve block which relieved all of that pain for a period of some two months. [49] In her report dated 29 January 2014, Dr Ward noted: "The injuries suffered by Ms Cameron are related to the repetitive nature of the duties she was required to perform and certainly the left leg and back pain came on after a particularly heavy work shift." [50] In a supplementary report dated 4 July 2014, Dr Ward noted: "…mechanisms such as, lifting and lowering of the tailgate is consistent with the injuries sustained by Ms Cameron." a. Later, in a further letter to Ms Cameron's representatives, Dr Ward noted: "With regard to the question of whether or not her back pain is consistent with the onset at work, the only new information that would throw any doubt on this being a work-related disorder, is that her husband testified she had back pain prior to starting in this job. This is contrary to what Kerri told me at her assessment performed by myself on 14 August 2013." [51] Ms Cameron had complained of aching and general soreness before she had commenced work at the Hospital and the Appellant submits that this would be consistent with Mr Cameron's evidence that he had applied Deep Heat to her back at that time. [52] In his report dated 28 February 2015, Dr Campbell recorded: 19 Transcript of Proceedings, Kerri Cameron v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/317, 4 March 2015) 25. -- 11 of 18 -- 12 "The diagnosis is that of: a. Musculoskeletal injury lumbar spine. b. Possible left hip bursitis." [53] Dr Campbell opined that on the balance of probabilities, the overriding main contributing factor to Ms Cameron's ongoing symptoms has been the work related activities performed over a period of time as a kitchen hand from April 2012 onwards. [54] Dr Campbell had said that 20% of Ms Cameron's impairment should be attributed to events which had occurred to her outside of and before her work with the Hospital. The Appellant submitted that Ms Cameron's back pain had become notably worse in August 2013. With regard to her hip pain, this had occurred after working at the Hospital for 17 months on a day when she was near the end of her fourth 7.6 hour day in a row and on the day she was maneuvering a heavy trolley laden with trays, and while she had been performing repetitive twisting work putting items on to trays. Dr Campbell was of the opinion that those circumstances were the turning point in terms of Ms Cameron's injury. [55] There was no back or hip pain recorded in Ms Cameron's General Practitioner's records prior to her commencing work at the Hospital in 2012. She attended her General Practitioner on eight occasions prior to December 2012. The only occasions when back pain was mentioned were as a consequence of her 2012 injury and the 14 August 2013 injury. [56] Dr Steadman's examination of Ms Cameron noted that she had a degenerate lumbar spine. He noted she suffered from some symptoms in her back with some possible referred pain to her leg. In his report dated 28 May 2014, he noted that there would be some conjecture about the trochanteric bursitis because she did not have any localizing clinical signs and, in his view, the MRI did not correlate. [57] He formed the view that given Ms Cameron's work activities, her age and her obesity and cigarette smoking there would appear to be no work relationship. He said that no treatment would be likely to be of benefit to her apart from weight loss and exercise. [58] Dr Steadman was of the opinion Ms Cameron's employment had been affected by her degenerative disorder and employment was not a contributing factor to her injury. [59] The Appellant submits that the MRI Dr Steadman reviewed, showed a disc bulge at L4 with possible compression, and he initially stated that the pain Ms Cameron felt in her buttock could have been referred pain from her L4 disc rather than bursitis. But, he then agreed that the MRI scan showed oedema which implies that there is definite bursitis. Notwithstanding that he had said Ms Cameron did not have any localising clinical signs of bursitis, in cross examination he said that the MRI was objective support for her pain and discomfort in the buttock. [60] With regard to the causation of Ms Cameron's bursitis and the L4 disc protrusion, Dr Ward had considered they were each a work-related injury and the injury was a work-related onset. Dr Ward said that the injuries were related to the repetitive nature of the duties she was required to perform. [61] Dr Ward said, with regard to causation that: -- 12 of 18 -- 13 "With the activities Kerri has been doing, she has suffered from microtraumas in the region which are amplified by activities that are repetitive or heavy". "… it is impossible to be 100% sure, however, expect that having performed repetitive and heavy duties over a period of time that microtrauma would have occurred." "On the balance of probabilities, in the absence of the heavy lifting tasks Ms Cameron performed over the period of time at the Hospital, she would not have experienced the acute onset of pain on 5 December 2012 or on August 14 2014." [62] The Appellant submits that Dr Ward acknowledged that there had been no prior injuries, conditions or predisposing factors which had contributed to her condition. Dr Ward maintained this view while acknowledging that Ms Cameron had a degenerative back disorder. The Appellant's representatives argued this would satisfy the test which the Commission must apply - that the injury arose out of or in the course of Ms Cameron's employment and that her employment was a significant contributing factor to the injury. [63] In considering causation, Dr Campbell had said that the overriding contributing factor to Ms Cameron's injuries was the work activity undertaken from April 2012 at the Hospital. [64] He stated that "her symptoms came on as a result of performing repetitive manual handling duties at work and there is a direct causal relationship". In his supplementary report dated 2 July 2015, Dr Campbell said "I am of the opinion that this incident of 14 August 2013 was the straw that broke the camel's back after a prolonged period of heavy manual duties from April 2012." [65] Upon the question of Ms Cameron's smoking habits, whilst Drs Ward and Campbell saw no relevance in this in terms of her injury, Dr Steadman suggested that it did but did not provide any further information as to how and why this might occur. [66] Dr Steadman also referred to Ms Cameron's weight in that it may be causative of her back condition. This view was not accepted by either Drs Ward or Campbell, although Dr Campbell said that extra weight could put an extra burden on one's back, but at the same time people who are fit and not carrying extra weight also suffer as many back problems as do those who carry the extra weight. Submissions - Medical Evidence [67] The Appellant argued that whilst Dr Steadman had made reference to Ms Cameron's outside work activities as being causative of her injury, there had been no evidence that Ms Cameron was undertaking any heavy or repetitive activities outside work. This was to be compared with her injury which she says she incurred on 14 August 2013 which had happened after the fourth 7.6 hour shift in a row she had worked. [68] The Appellant noted that "There was no suggestion that she had been engaged in relevant extracurricular activities with any temporal connection to her injury. -- 13 of 18 -- 14 Further, that "there is no basis for a finding that non-work activities with any temporal connection to her injury. There is no basis for a finding that non-work activities were of greater significance than the heavy and repetitive tasks she was performing day to day at the Hospital." [69] Dinca v Simon Blackwood (Workers' Compensation Regulator)20 and the authorities within, state that an 'exacerbation' rather than 'an aggravation' constitutes impermissible hair splitting. The question is - as was held in Pleming, whether the back becomes painful or more painful and the employment is a significant cause of the onset or intensification of pain." [70] The Appellant submits that "the proximity in time of the incident and the onset of pain cannot be seriously disputed." Further, that in all the circumstances "it would be speculation to find other than that the appellant's employment was a significant cause of the onset of her hip pain, and the intensification of her back pain." [71] The Respondent argued the only significant contributing factor in the circumstances was the underlying degenerative back condition, submitting Dr Steadman's opinion should be preferred over that of Drs Ward and Campbell for the following reasons:  Ms Cameron had suffered a pre-existing degeneration in her lower back prior to commencing employment with the Hospital.  Ms Cameron had tried to distance herself from the pain she had experienced in December 2012 to what she described in 14 August 2013. The pain described in December 2012 was "taking trays off at clean end and turned around, felt a twinge in muscle, left side lower back, after that happened whole muscle tightened up and had pain shooting down to buttocks."  Two days later Ms Cameron visited her General Practitioner for lower back pain which she said occurred by her unloading the dishwasher, twisting to the left and all of a sudden she had back pain in the lower back more on the left. [72] The Respondent described as "somewhat benign" the circumstances which occurred in 14 August 2013 in the lead-up to the incident. In its view, the Respondent did not accept that the defined duties above represented heavy work. That is, Ms Cameron had delivered one of the blue trolleys which was loaded with trays to a unit in the hospital which was located on a different floor. She took the lift up to the floor and pushed the trolley to the ward. It was when she was walking through the kitchen on her return when she felt a sharp stabbing pain in her left hip which it seems came on approximately four minutes after handling the trolley. After an hour she felt pain in her lower back. [73] Further, Dr Ward had said in her report that Ms Cameron's injuries were related to the repetitive nature of the duties she was required to perform and that the left leg and back pain came on after particularly heavy work. However, in cross-examination, Dr Ward attributed this to Ms Cameron's "putting condiments and cutlery on a tray 20 Dinca v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 036 -- 14 of 18 -- 15 without being in the kitchen and doing - the person doing it that sounds like something that would require repetitive turning and twisting." [74] The Respondent argued that, apparent from her cross-examination, Ms Cameron claimed that the activity which had caused her the most pain related to raising and lowering the tailgate, noting Mr Jacobs had no reports from Ms Cameron of back pain with regard to this type of work. [75] Further, when questioned concerning Ms Cameron's pre-existing degeneration and how she had determined the L4 disc was related to work activities and not degeneration, Dr Ward had said that it was the fact that someone describes an acute incident with the onset of pain at that point in time and with clinical radiological investigations and having had treatment in the form of nerve block which relieved all of the pain that she described as starting at work, then it was not unreasonable to suggest that the particular disc protrusion occurred at the time described. [76] The Respondent submitted that the problem with that hypothesis is that there was never an acute incident. The Respondent says that the work being performed by Ms Cameron prior to the onset of pain had been benign. [77] The Respondent did not view the back rubs being given by Mr Cameron to Ms Cameron as being relevant in that Mr Cameron's evidence was confused. [78] Questions were also raised by the Respondent concerning Ms Cameron's evidence which it submitted was unsatisfactory. Further, Dr Steadman had referred to the examination of Ms Cameron when she showed signs of non-physical issues such as false rotation which Ms Cameron said caused her pain and shoulder compression which caused her lower back pain. [79] Dr Ward agreed that concerning the false rotation and shoulder compression, that neither of those tests should cause back pain, whereas Dr Campbell said that if one pushed down on someone's shoulders with axial loading he could not see how they would not get back pain if they had a bad back. [80] The Respondent claimed that Dr Steadman's evidence properly identified the presence of degenerative changes in the lower back between L2 and L5 when providing his original opinion, also pointing to his view that there was:  No work relationship taking into account Ms Cameron's work activities, her age, her obesity and cigarette smoking;  Ms Cameron had a degenerative lumbar spine and he had not found that the work performed was a contributing factor;  When asked what sort of employment duties are likely to aggravate a degenerative back disorder, Dr Steadman said "any employment duties, presumably the heavier ones starting first, and then working back to the lighter ones;"  He further stated that one could be employed or not, but any activity when one has a sore trochanteric bursar will make things painful. -- 15 of 18 -- 16 [81] Dr Steadman also stated: "... so if you've got a worn out back, everything that you do is going to make your back sore because that's just the nature of the disease process and the activity. But the question in this case really is has that repetitive activity or that heavy lifting, has it in some way altered the course of the disease that would otherwise have occurred anyway." [82] Dr Steadman agreed that heavy activities had the ability to exacerbate an underlying degenerative disorder. He stated "… heavy as in the ability to sort of alter the outcome of someone who's got a you know - a known problem, if you like is - is where - if there's a failure is where I, sort of, cannot quite make the leap to agree with you." [83] When asked about how heavy it would need to be to alter the underlying condition, Dr Steadman said "yeah. How heavy would it need to be, how bad is the degenerative disease, how comprehensive is the pre-existing history, they're all important variables to go into it. But again I make the point that you've already got a sore back, of course any of these things will make it worse but not necessarily alter the outcome you know. A sore back is a sore back, anything you do when you have got a sore back will make it worse." [84] The L4 disc bulge was in Dr Steadman's view part of the degenerative spectrum. Concerning the trochanteric bursitis, Dr Steadman said that was referred pain basically from the Appellant's back. [85] He further stated that an underlying back condition can be exacerbated by anything, not specific to work, that will cause it to be exacerbated or aggravated. The continuation of symptoms in a degenerative back is perpetuated just by its own natural history. Dr Ward said that Ms Cameron had not advised her of her prior back problems when she examined her. Likewise, with the examination by Dr Campbell, she had made no mention of any pre-existing degenerative condition of the lower back. Consideration and Findings [86] In this matter the Commission is required to consider whether the pain and discomfort associated with the lower back injury Ms Cameron says she suffered when she made her application for compensation is causally related to her employment with the Hospital. And if so, was her employment a significant contributing factor to her lower back injury? [87] Having considered the materials before the Commission including the opinions of Drs Ward, Campbell and Steadman, I am satisfied the medical evidence supports a finding Ms Cameron suffers from a personal injury, namely trochantic bursitis, in addition to an aggravation of a degenerative back disorder. [88] The Respondent submitted the question of permanent aggravation was properly the question to be determined by the Commission, contending that employment needs to be more than the setting in which the injury occurs. That is, Ms Cameron's employment needs to be a real or effective cause of the injury. -- 16 of 18 -- 17 [89] It is clear Ms Cameron experienced general soreness and minor back pain in the months prior to August 2013. In this regard, the Respondent submitted the only significant contributing factor in the circumstances was the underlying degenerative back condition itself. [90] The Respondent described the work being performed by Ms Cameron prior to the 14 August 2013 incident as being largely benign, arguing there was never an acute incident which occurred prior to the onset of the Appellant's pain, however I prefer Dr Campbell's view that the events of 14 August 2013 were the "straw that broke the camel's back" following a period where Ms Cameron performed a series of duties for up to 40 hours in a week on occasions, which included repetitive lifting, lowering, turning and twisting. In my view, there is a link between the work incident of 14 August 2013 and Ms Cameron's onset of lower back pain. [91] Furthermore, Ms Cameron's General Practitioner notes, the incident reports of both her and her supervisor and the reports of Drs Ward and Campbell in combination with the history reported by Ms Cameron in respect of the events of 14 August 2013, are all consistent with a finding that her back pain became significantly worse after August 2013. [92] Such a finding is also supported, in part, by an absence, in Ms Cameron's patient summary notes of any prior record of back pain or related complaints, aside from a workplace event in December 2012 which resolved relatively quickly. [93] Although Dr Steadman initially stated in his report that the pain Ms Cameron felt in her buttock could have been referred pain from her L4 disc rather than bursitis, he later acknowledged the presence of the oedema in the MRI scan indicated the presence of bursitis. [94] Further, despite arriving at the conclusion Ms Cameron had a degenerative back disorder, Dr Ward formed an opinion on the balance of probabilities, that but for the heavy lifting tasks performed over a period of time at the hospital, the Appellant would not have experienced the acute onset of pain on 5 December 2012 and 14 August 2013. [95] Dr Campbell opined Ms Cameron's symptoms came as a result of performing repetitive manual handling duties at work and that there was a direct causal relationship. Whilst Dr Steadman indicated Ms Cameron's weight may have contributed to her back condition, there was no clear evidence provided to the Commission as to how this might have occurred and to what extent any extra weight would impact an existing degenerative back condition. [96] During the proceedings Ms Cameron was asked about her extracurricular activities including horse riding, however there was insufficient evidence of any other non-work actions she had been engaged in which may have significantly contributed to her back injury and pain. [97] In Fielder v Workcover Queensland,21 his Honour President Hall wrote: 21 Fielder v WorkCover Queensland [2004] 175 QGIG 871 -- 17 of 18 -- 18 "The medical evidence is such that one must accept, as has been accepted in other cases, that the degenerative spinal disease has reached a point at which it might be exacerbated and rendered symptomatic by stretching to get something out of a pantry, bending over to tie shoe laces or turning over in bed. What happened to the worker in this case might well have happened to him at his home, on a council bus or at a religious service. However, once the Industrial Magistrate accepted that the incident of 3 April 2001 did in fact occur and accepted there was proximity of time between the incident and the onset of pain it was, in the absence of any evidence about a competing causal incident, inevitable that the Industrial Magistrate would conclude on the balance of probability that the worker's employment had been "a significant contributing factor to the aggravation". On the state of the evidence any other conclusion would be speculation." [98] I accept the Appellant's submissions that Ms Cameron's work in the hospital between April 2012 and August 2013 has been a significant cause of both her bursitis and an aggravation of her underlying degenerative back disorder. I also accept there is insufficient evidence that is able to support the notion that Ms Cameron's extracurricular activities significantly contributed to her back disorder. [99] On the evidence before the Commission, I have formed the view the Appellant has discharged the required burden of proof. [100] As such, I find that Ms Cameron has sustained an injury under s 32(1) of the Act. [101] Accordingly, I order: i. the appeal is upheld; ii. the decision of the Regulator is set aside; iii. the Respondent is to pay the Appellant's costs of and incidental to the appeal to be agreed. In the event agreement cannot be reached between the parties with respect to the costs the Appellant has the liberty to apply. -- 18 of 18 --