Beattie v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 20

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Beattie v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 020 PARTIES: Jeffrey Beattie (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2012/469 PROCEEDING: Appeal against decision of the Workers' Compensation Regulator DELIVERED ON: 28 January 2015 HEARING DATES: 10-11 April 2014 MEMBER: Industrial Commissioner Neate ORDERS : 1. The appeal is dismissed. 2. The decision of the Regulator 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 - Decision of Workers' Compensation Regulator to reject application for compensation - worker had asymptomatic, degenerative spinal condition - worker experienced symptoms of sciatica at home - whether worker had an injury - whether the injury arose out of, or in the course of, employment – whether employment was a significant contributing factor to the injury – Appellant bears onus of proof. CASES: Adelaide Stevedoring Company Ltd v Forst (1940) 64 CLR 538 Avis v WorkCover Queensland (2002) 165 QGIG 788 Carmen v Q-COMP (2007) 186 QGIG 512 Chattin AND WorkCover Queensland (1999) 161 -- 1 of 20 -- 2 QGIG 531 Commissioner of Police v David Rea [2008] NSWCA 199 Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100 EMI (Australia) Limited v Bes (1970) 44 WCR 114 Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 Holtman v Sampson [1985] 2 Qd R 472 Joyce v Yeomans [1981] 1 WLR 549, [1981] 2 All ER 21 Lackey v WorkCover Queensland [2000] 165 QGIG 22 Monroe Australia Pty Ltd v Campbell (1995) 65 SASR 16 Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519 Obstoj v Van de Loos (Unreported, Supreme Court of Queensland, Connolly J, 16 April 1987) Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181 Qantas Airways Limited v QComp (2006) 181 QGIG 301 Qantas Airways Ltd AND Q-COMP and Michelle Blanch (2009) 191 QGIG 115 Ramsay v Watson (1961) 108 CLR 642 Rossmuller v Q-COMP (C/2009/36) - decision <http://www.qirc.qld.gov.au> Sotiroulis v Kosac (1978) 80 LSJS 112 (Wells J) State of Queensland (Queensland Health) v QComp and Beverley Coyne (2003) 172 QGIG 1447 WorkCover Queensland AND Currogh Queensland Mining Pty Ltd (2003) 172 QGIG 6 APPEARANCES: Mr S Neaves, counsel instructed by Jon Kent Lawyers Mr N Jarro, counsel directly instructed by the Workers' Compensation Regulator Decision [1] This is an appeal by Jeffrey Grant Beattie ("the Appellant") against the decision of the Review Unit of Q-COMP (now Simon Blackwood, the Workers' Compensation Regulator) ("the Respondent") to confirm the decision of WorkCover Queensland ("WorkCover") to reject Mr Beattie's application for compensation in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ("the Act"). [2] The Appellant contends that he has a back injury which resulted from his work over a period of time at Austin Engineering Ltd ("Austin Engineering"), and that his -- 2 of 20 -- 3 employment was a significant contributing factor to the aggravation or acceleration of his back condition. [3] The Appellant lodged an application dated 23 May 2012 with WorkCover (Exhibit 1). WorkCover rejected the application by decision dated 10 July 2012. The Appellant applied to the Respondent for a review of that decision. By its decision sent to the Appellant on 15 November 2012, the Respondent confirmed the decision of WorkCover to reject the Appellant's application for compensation in accordance with s 32 of the Act. It is against that decision that the present appeal is made. [4] The appeal is in the nature of a hearing de novo, and the Appellant bears the onus of proof on the balance of probabilities.1 The issues [5] The appeal has to be decided by reference to s 32 of the Act which, at the relevant date, stated: "32 Meaning of injury (1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury. … (3) Injury includes the following – (a) … (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; … 1 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. -- 3 of 20 -- 4 (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." [6] Schedule 6 of the Act states: "aggravation includes acceleration." [7] There is no dispute that the Appellant was at all material times a "worker." [8] The issues are whether: (a) the Appellant suffered an injury; (b) the injury arose out of, or in the course of, the Appellant's employment; and (c) the employment was a significant contributing factor to the injury. [9] In deciding those questions, reference will be made to oral evidence given by the Appellant, his de facto wife/partner (Denise Thompson), two managers from Austin Engineering (Robert Barning and Michael Mattinov), and two neurosurgeons (Dr Scott Campbell and Dr Michael Coroneos), and to some documents. As will become apparent, the resolution of each issue depends largely on the evidence from the doctors. [10] The evidence and submissions will be considered by reference to the following topics: (a) the Appellant's employment history; (b) the symptoms experienced by the Appellant and when they were reported to the employer; (c) the nature of the injury; (d) whether the injury was work-related; (e) whether the injury was caused by physical activity at home. Appellant's employment history [11] According to the Appellant's oral evidence, he was employed in a variety of jobs (including at abattoirs, at a truck repossession yard as a truck detailer, and sandblasting for steel companies) before about January 2005 when he started work at Austin Engineering, a company which manufactures mining and earthmoving equipment, and attachments such as excavator buckets. He was initially employed there as a shot blaster, and his work involved loading heavy steel objects (such as truck chassis and the components of truck bodies) onto steel trolleys. The trolleys are approximately 1.5 metres by 2.0 metres in size. They move on steel wheels (like smaller railway train wheels) along tracks into a large room where the steel objects are blasted and painted. The shot blasting aspect of his work involved the Appellant using a large hose (about 7 to 8 cm in diameter) to blast steel with steel granules or -- 4 of 20 -- 5 garnet powder at 700 psi air pressure to remove paint and rust and bring the object back to bare metal. As part of that process, he might turn an object over to get it at a different angle. Most of each working day (including when he was doing overtime) was spent in the blast chamber doing what he described as a "pretty physical job" which would leave him exhausted. [12] After about four years, the Appellant became a steel handler at Austin Engineering for about two years up to August 2011. That work involved forklift driving, loading and unloading trucks, loading objects such as steel frames onto trolleys for the blast chamber, and turning steel over to be painted. Most of his work was undertaken using forklifts of different sizes depending on the type of loads he had to shift. He would spend about four hours or more (up to all the working day) driving a forklift. The forklift had a padded seat. The surface on which he drove was concrete. From time to time (sometimes three or four times a week) he also shovelled a powdery sand like material of garnet (residue from the blasting process) into one ton bags so that it could be recycled. That task would take between half an hour and one hour. He also climbed on and off trucks to check that loads were safe. The Appellant assisted in getting the trolleys moving by giving them a nudge with the forklift, or by helping other men to push a trolley in and out of the blast room. Towards the end of his time at Austin Engineering, he collected, folded and loaded carpet at a carpet supplier for use at the premises of Austin Engineering. That sometimes involved getting into a large bin to retrieve the carpet. [13] Robert Barning (the workshop manager for Austin Engineering) and Michael Martinov (the supervisor at Austen Engineering) gave oral evidence about the nature of the work performed by the Appellant in those two roles, and the periods during which he performed each role. In key respects, their evidence was substantially consistent with that of the Appellant. The symptoms and when they were reported to the employer [14] According to the Appellant, until about August 2011 he was in good health. He had experienced some injuries in the past, including a twisted ankle and sore knee and he once had physiotherapy for a sore back which was resolved after a couple of days. He did not engage in sporting activities or any physically demanding activities at home. [15] On the morning of 4 August 2011, after waking up at home, the Appellant experienced a pain that went from his toes up the left side of his leg across his buttocks to the bottom of his back. He saw his local general practitioner, Dr Ratnam, who sent him to a neurosurgeon at Ipswich, Dr Sarah Olson, who arranged for the Appellant to have an epidural needle. According to the Appellant, his symptoms "just got worse and worse" after that needle. More recently, since he has been taking medication, he has experienced a tingling sensation or numbness in the left side of his arm. He had an MRI scan, after which he was told that he had sciatica and would need surgery. [16] The documentary evidence about the date of the onset of the symptoms described by the Appellant is inconsistent, ranging from 4 August 2011 to 16 August 2011. In summary: -- 5 of 20 -- 6 (a) the Workers' Compensation Medical Certificate signed by Dr Scott Howard and dated 24 April 2012 (Exhibit 3) records that the Appellant stated that the date of injury was 16 August 2011; (b) the WorkCover claim form signed by the Appellant and dated 28 May 2012 (Exhibit 1) did not nominate a date when the injury happened, stating that it occurred “over time”, but recorded that the employer was advised about the injury when Mick Martinov was contacted on 18 August 2011; and (c) the report of Dr Campbell dated 29 October 2013 (Exhibit 4), based on his examination of the Appellant on 23 March 2013, stated that the “injury occurred over a period of time from 2002” and that there was “an acute episode of pain” on 4 August 2011. [17] According to his oral evidence, the Appellant first reported the injury to his employer on Thursday 4 August 2011 when he was in severe pain. He rang his boss, Michael Martinov, to tell him that he would not be at work because of that pain, and that he was going to see a doctor. He recalled telling Mr Martinov not to worry as the condition was not work-related, as he thought it might have been caused by a blood clot. He explained that "because it didn't happen at work and I wasn't at work when it happened, I said I don't think it was work-related." In any case, the Appellant did not think there was anything wrong with him but did not "know what was going on."2 [18] Even though his WorkCover claim form nominated 18 August 2011 as the date when the employer was advised about the Appellant's injury, the Appellant insisted in cross-examination that he told his boss that he had problems on 4 August 2011. He identified that date because he had been away from work on 3 August 2011 so that he could be present for an inspection of the house that he and his family were renting at that time. The Appellant's partner of 23 years, Denise Thompson, gave oral evidence that the Appellant woke up in severe pain down one side of his body the day after the house inspection. The Appellant said that he did not have issues with his back or legs when he was at work on 1 or 2 August 2011, including when he collected carpet on 1 August. [19] Mr Martinov said that the Appellant did not talk to him about back complaints before August 2011. He remembered that, in early August 2011, the Appellant: (a) had a day off work so that he could get his yard cleaned up and be at home for an inspection of the house he was renting; and (b) rang Mr Martinov the following day to say he would not be coming to work because he had woken up with a "crook back" and was going to see a doctor. When Mr Martinov asked him whether his back condition had anything to do with work, the Appellant said "No". The day after he had been to the doctor, the 2 Transcript of Proceedings, Jeffrey Beattie v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2012/469, Industrial Commissioner Neate, 10 April 2014) 9, 12-15. -- 6 of 20 -- 7 Appellant rang Mr Martinov to say things were not looking good and he may have to have an operation. Again when Mr Martinov asked him whether this had anything to do with work, the Appellant said that it had nothing to do with work. [20] As noted earlier, the workers' compensation medical certificate issued by Dr Scott Howard on 24 April 2012, the day on which he examined the Appellant, records that the Appellant stated that the date of injury was 16 August 2011 and that his stated cause of injury was "lifting heavy weights at work." When that was put to the Appellant, he replied: "I don't even know what was going on back then. When I went and seen him, he was the only one that helped me out with my pain. That's all I can tell you, mate … As I said, to tell you the truth, mate, half the time I don't even know if I'm Arthur or Martha because of – the medication I'm on is – so I can't remember back three years ago."3 [21] The WorkCover claim form states that the injury happened "working at the normal workplace", Austin Engineering, and it was put to the Appellant that he told a representative of Work Cover that he was driving a forklift at time when he first experienced symptoms in August 2011. The Appellant replied: "He's probably got it wrong, mate. I said that I was probably driving the forklift. I didn't say to him that I was driving forklift when it happened, if that's what you're referring to, because – no."4 [22] On the basis of the evidence summarised above, I am satisfied that: (a) before 4 August 2011, the Appellant had not experienced symptoms of back pain consistent with sciatica or any other significant or ongoing back pain; and (b) he first experienced those symptoms when he woke up at home on 4 August 2011. The nature of the injury [23] The threshold issue is whether the Appellant suffered an "injury" as that word is used in s 32 of the Act and, if he did, what the nature of that injury was. To answer those questions it is necessary to consider expert medical evidence. [24] The evidence of Dr Coroneos: At the request of WorkCover, the Appellant saw Dr Coroneos on 28 June 2012, some 10 months after he first experienced the symptoms in his left side. Dr Coroneos made a clinical examination of the Appellant, and referred to CT scans of the lumbar spine on 4 August 2011, and 3 Transcript of Proceedings, Jeffrey Beattie v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2012/469, Industrial Commissioner Neate, 10 April 2014) 26-27. 4 Transcript of Proceedings, Jeffrey Beattie v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2012/469, Industrial Commissioner Neate, 10 April 2014) 25. -- 7 of 20 -- 8 MRIs of the lumbar spine on 25 August 2011. Copies of those images were attached to his report dated 2 July 2012 (Exhibit 6). [25] In making his diagnosis, Dr Coroneos had regard to those images and the radiologists' reports, as well as the Appellant's medical and occupational history. It is clear that Dr Coroneos relied heavily on the history provided to him by the Appellant. It is relevant to note that in his report, Dr Coroneos wrote that the Appellant: (a) reported no medical conditions; (b) told him about occasional back ache and sore neck occasionally over the years; (c) told him that, on 16 August 2011, he got out of bed and had severe left calf, left buttock and left back of thigh pain and he was worried he had a blood clot; and (d) told him that there was no injury or event. [26] According to Dr Coroneos, the Appellant had "no systemic features of illness." However, the Appellant told Dr Coroneos that he could not bend when Dr Coroneos tried to examine his back, so he was not forced to demonstrate any movement. There was no spasm, deformity or guarding. [27] Dr Coroneos noted that the radiologists had reported degeneration and osteophytes. In respect of the two previous investigations, he wrote: "04/08/11 CT Lumber Spine - Longstanding spondylosis, multilevel particularly at L5/S1. 25/08/11 MR Lumbar spine - multilevel desiccation, schmorls nodes L1/2 and L2/3. Modic endplate change L5/S1. Circumference annular bulging L5/S1. Disc osteophyte complex circumferential at L5/S1 and facet degeneration." (Exhibit 6, emphasis in original) [28] Having documented the history, examination on interpretation of CT and MRI, Dr Coroneos wrote: "I cannot identify any significant neurosurgical spinal injury occurring 16/08/11 … I cannot identify a significant neurosurgical workplace spinal injury and all the changes on CT and MRI are clearly due to longstanding, chronic pre-existing degeneration." (Exhibit 6, emphasis in original) [29] In his oral evidence, Dr Coroneos gave his diagnosis that the Appellant had lumbar spondylotic stenosis causing sciatica. He described the condition as a degenerative condition. There was no disc protrusion. It was a stenosis due to a disc osteophyte complex formation. [30] Dr Coroneos explained that this is a common condition that occurs in all people as they get older. The most prominent theory about its cause and development is that -- 8 of 20 -- 9 the nucleus or jelly inside the disc loses its water content. This is associated with this function of the disc and the disc responds by causing osteophytes to occur in the margins. Associated with the osteophytes is tearing or fissure of the annulus (the capsule of the disc) which causes the circumferential bulging of the disc and the disc osteophyte complex formation. There is also a process in the facet joints at the back where they also become dysfunctional and enlarged. The end result is that the spinal canal becomes narrowed and the nerves can become compressed and cause sciatica. [31] Dr Coroneos explained his diagnosis by reference to the five photographic CT and MR images attached to his report which he had marked to show such things as: (a) narrowing of the disc space at the L5/S1 and associated calcified disc margin, which are degenerative changes; (b) desiccated disc at L5/S1 (which is part of the process of lumbar degeneration); (c) 360 degree circumferential disc osteophyte (a combination of bony spur and attached disc); (d) bony spurs, particularly anterior spurs; and (e) thickening of the endplate, the bony margins around the L5/S1 disc. [32] In summary, the images show circumferential disc osteophyte complex at L5/S1 causing spinal stenosis. It is a spondylotic slowly progressive condition. There is no focal protrusion or herniation or prolapse. [33] Dr Coroneos drew a distinction between the condition that he described and a disc protrusion, the features of which are a focal rupture of disc material into the spinal canal. [34] The evidence of Dr Campbell: Dr Campbell saw the Appellant on 23 March 2013, some 20 months after the episode on 4 August 2011. He described the Appellant as a “healthy 44-year old”, but observed that he walked with a slow and cautious gait. The Appellant sat in discomfort, and had difficulty getting into and out of the examination chair. Examination of the lumbar spine revealed restricted flexion and extension, and central tenderness and guarding. Dr Campbell noted that when he interviewed and examined the Appellant, he was experiencing lower back pain on a daily basis (which rated up to 10/10 on the Visual Analogue Scale) and that pain was associated with left leg pain and left foot numbness. The lower back pain was aggravated by prolonged sitting/standing, walking long distances, jogging, gym work, housework and yard work. The Appellant was unable to go camping or boating/fishing as a result of the lower back injury. [35] In his report dated 29 October 2013 (Exhibit 4), Dr Campbell stated that the “injury occurred over a period of time from 2002” and that there was “an acute episode of pain” on 4 August 2011. That day the Appellant “awoke from his sleep and noted onset of left leg pain” and one day later he noted “lower back pain”. -- 9 of 20 -- 10 [36] Dr Campbell’s diagnosis was of “Longstanding left L5/S1 disc protrusion awaiting surgery”. He noted that the Appellant developed intermittent back pain while working as a shot blaster and steel handler. The pain required physiotherapy. Having woken with “severe left sciatica,” the Appellant subsequently developed “increasing lower back pain” and his symptoms persisted despite conservative management. [37] Dr Campbell’s prognosis was that, at the date of examination, the Appellant’s condition had reached maximum medical improvement and it was “unlikely” that there would be “any significant alteration of his symptoms in the future.” Dr Campbell concluded that the Appellant had a 10% Whole Person Impairment, which might increase depending on the type of surgery undertaken. The Appellant’s prospects of returning to work in any capacity performing manual handling tasks were “poor” and, in Dr Campbell’s opinion, the Appellant would be best suited to sedentary-type work in the future. [38] It is relevant to note that, in preparing his report, Dr Campbell read copies of the following reports and other material: (a) Dr S Olson – Neurosurgeon – dated 22 August 2011 and 1 February 2013; (b) Dr S Howard dated 19 October 2011; (c) Dr M Coroneos – Neurosurgeon – dated 2 July 2012; and (d) extract from hospital file. Items (a) and (b) were not in evidence in these proceedings. [39] His report in relation to the scans states: (a) the CT scan of the lumber spine dated 4 August 2011 showed “a calcified left L5/S1 disc protrusion”; and (b) the MR scan of the lumbar spine dated 25 August 2011 showed “a left L5/S1 disc protrusion”. [40] Dr Campbell had a chance to review the radiology and agreed with the reported findings of “a longstanding calcified left L5/S1 disc protrusion.” However, he was unable to say precisely how long the protrusion had been there. The presence of calcium indicated that it was not an acute disc protrusion, and it might have been there for between two and 20 years. [41] Did the Appellant suffer an "injury"? As noted earlier, there is a threshold issue whether the Appellant suffered an "injury." The Appellant's case proceeds on the basis that he suffered a back injury. On the threshold question, the Respondent submits that it is probably (albeit with some effort) open to the Commission to find that the Appellant sustained a personal injury, as that term is used in s 32 of the Act. The Respondent does not dispute that the Appellant has a back condition, and notes that both medical experts agree that the Appellant has a long standing, chronic, pre- existing degenerative condition. -- 10 of 20 -- 11 [42] However, the Respondent refers to the opinion of Dr Coroneos that the Appellant sustained no injury at all. At most he conceded that there might have been an "exacerbation" of the underlying condition by reference to the Appellant's work duties. The Respondent submits that this is different from an "aggravation" for the purposes of s 32(3) (b) of the Act given that the Appellant has not demonstrated any identifiable impact of the extent of the effect of the aggravation as required by s 32(4). [43] The Respondent also refers to Dr Howard's medical certificate dated 24 April 2012 (Exhibit 3) which includes a diagnosis of "acute/persistent sciatica bilateral legs." The Respondent notes, however, that Exhibit 3 records that the Appellant indicated to Dr Howard that the injury happened on 16 August 2011, close to two weeks after he ceased work. That date coincides with Dr Coroneos' reference to the Appellant providing a history that he experienced the relevant symptoms when he got out of bed on that date. In other circumstances, I might have given some weight to this argument. However, as noted earlier, I find that the Appellant experienced the relevant symptoms on 4 August 2011. Although no clear reason was given why later dates were used on the Appellant's application for compensation dated 23 May 2012 (Exhibit 1) and Dr Howard's certificate, I am willing to proceed on the basis that the Appellant made a mistake in nominating that date/those dates when those documents were prepared some period after the onset of those symptoms. [44] The Respondent also refers to the evidence of Dr Campbell who, whilst acknowledging the long-standing nature of the Appellant's spinal condition, noted that the Appellant developed intermittent lower back pain over the years. The evidence in these proceedings from the Appellant and others provides no support for a finding of intermittent lower back pain in the years prior to August 2011. It appears that Dr Campbell made that statement based on what he was told by the Appellant. In the light of the other evidence in these proceedings, including the Appellant's evidence, I give little weight to it. [45] I find that on 4 August 2011, the Appellant experienced for the first time symptoms associated with a long-standing, but previously asymptomatic, degenerative spinal condition. Having carefully considered the evidence of Dr Campbell and Dr Coroneos, I find the diagnosis made by Dr Coroneos (as explained by references to the CT and MR images) persuasive. I find that the Appellant's condition can be described as lumbar spondylotic stenosis, particularly at L5/S1, causing sciatica. [46] I will proceed on the basis, without finally deciding the matter, that those symptoms were evidence of an "injury" as that term is defined in s 32 of the Act. Was the injury work-related? [47] The neurosurgeons disagreed with each other's conclusion about the cause of the injury (or condition). [48] Dr Campbell's opinion: In his report dated 29 October 2013, Dr Campbell noted the following in relation to the Appellant’s work history: -- 11 of 20 -- 12 (a) the Appellant stated that he commenced work as a shot blaster for an engineering company in 2002,5 and his duties involved using a high pressure hose through the course of a day to blast steel; (b) in 2007,6 the Appellant changed to the position of a steel handler and forklift driver for the same company, and he was required to turn steel, load trucks and shovel sand repetitively through the day; and (c) at the time of the onset of symptoms, the Appellant was employed as a steel handler full-time for 38 hours per week, and his duties were physical in nature. [49] Although Dr Campbell’s report described the type of accident as “work-related,” he also wrote that, as the Appellant’s left sciatica came on at home after he awoke from sleep: “there has to be some doubt as to whether his condition is work-related or not. Taking into consideration Mr Beattie performed heavy manual handling duties over a period of time at work from 2002 with associated intermittent lower back pain over the years and the radiology demonstrating an old calcified left L5/S1 disc protrusion, it is likely that at least 50% of his current symptomatology can be related back to work activities during that time.” (Exhibit 5) [50] In his oral evidence, Dr Campbell said that the Appellant’s injury had come on over a period of time without a specific precipitating event, it was aggravated by his work, and the Appellant's work made a “major contribution” to his impairment or injury. [51] He came to that view because: (a) there was nothing significant in the Appellant’s history in relation to longstanding episodes of back pain, and he was asymptomatic before commencing his position at Austin Engineering; (b) physical work involving heavy repetitive tasks over a long period of time was consistent with, and could have caused, the injury sustained; and (c) the disc protrusion was calcified so had been there for a period of time, although it was very difficult to know whether it was there before the Appellant commenced his duties at Austin Engineering or was as a result of performing his duties. Dr Campbell distinguished between that type of disc protrusion and a "fresh disc protrusion" which does not have calcium. 5 As noted earlier, the Appellant commenced work at Austin Engineering in 2005. 6 As noted earlier, the evidence indicates that this occurred in 2009. -- 12 of 20 -- 13 [52] He also took into account that the Appellant developed the left sciatica at home during his leisure time. [53] Dr Campbell also stated that he did not have a strong conviction about the 50:50 apportionment between work-related activities, and extraneous factors. He described apportionment as probably the most difficult part of this case, and stated that an 80:20 or 20:80 apportionment would not be unreasonable. [54] In cross-examination, Dr Campbell said that a disc protrusion is more likely to be caused by physical tasks and heavy manual tasks. However, a range of other things, including coughing, sneezing, doing up shoelaces, doing cleaning around the house or work in the yard, or getting out of bed can cause such a protrusion or disc prolapse. He stated that there is a "significant amount of grey area" as no one knows the exact pathology that occurred. [55] Dr Coroneos's opinion: In Dr Coroneos's opinion, there was no evidence to support a conclusion that the Appellant's employment was a significant contributing factor to his condition. [56] Dr Coroneos noted that the Appellant is a forklift driver and steel handler who had worked for Austin Engineering for 8 ½ years. Dr Coroneos had been advised that the Appellant did a lot of forklift driving and that he was lifting heavy weights at work. [57] Dr Coroneos expressed the view that, in order to state that the changes on imaging shown on the various scans of the Appellant's spine were due to work activities or work injuries, there would have to be clear evidence of one or more significant spinal injuries having occurred. That would lead to a conclusion that work could be a significant or major contributing factor to the development of the spondylosis seen in L5/S1. He noted that the Appellant did not report any specific incident or injury, including sciatica. Dr Coroneos could not see any evidence of a significant neurosurgical spinal injury having occurred that could cause a major or significant contributing factor to the development of the Appellant's lumbar spondylosis, particularly at L5/S1. [58] Lumbar spondylosis is a slow process which occurs over years. Having regard to the photographic images attached to his report, and based on clinical experience, Dr Coroneos expressed the view that the degenerative changes shown in those images were "probably about a decade or so old." [59] Dr Coroneos was asked whether the fact that the Appellant started at Austin Engineering in 2005 and was, at that time, predominantly asymptomatic would have any bearing on his opinion whether the work at Austen engineering contributed to the Appellant's condition in August 2011. He replied "No", because 40 per cent of people who are asymptomatic have degenerative changes and disc protrusion. Forty per cent of people in their 30s and 40s have established degenerative disc protrusions. [60] According to Dr Coroneos, there is no scientific evidence for concluding that degeneration of the type he diagnosed in the Appellant would occur more quickly in a person who works physically hard. In his experience, lumbar spondylosis or degeneration is seen in a variety of patients with all sorts of occupations and -- 13 of 20 -- 14 sporting or other activities, including people who are sedentary workers as well as those involved in heavy physical activity. [61] Heavy lifting and heavy manual labour can cause exacerbations of the pain in patients who have degeneration. He would advise patients to avoid particular activities (such as heavy lifting, repetitive bending and the stooping) only if they had a focal disc protrusion. [62] However, Dr Coroneos stated that the heavy labour undertaken by the Appellant in his role as a forklift driver with the associated activities he described, could well exacerbate the Appellant's condition and it could be a contributing factor to the development or progression of his lumbar spondylosis or degeneration. But, in the absence of a significant episode (such as a disc herniation, or a disc protrusion causing sciatica), there is no evidence that would allow a conclusion that the Appellant's heavy manual labour in the course of his employment was a significant contributing factor to his condition. [63] Resolving the conflict of expert opinions: Where, as in this case, there is a conflict of opinions between expert medical witnesses the following propositions drawn from judicial authorities apply: (a) the tribunal of fact can be assisted by expert medical opinion evidence, but must weigh and determine the probabilities as to the cause of an ailment or injury having regard to the whole of the evidence;7 (b) the tribunal'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 witness, but to examine 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;8 (c) only when medical science denies that there is a connection between, for example, certain events and a person's death can a judge not act as if there were a connection; but if medical science is prepared to say that it is a possible view, then the judge after examining the lay evidence can decide that it is probable;9 (d) the finding could be described as one based on the credibility of expert witnesses, having regard to such things as whether the witnesses display signs of partisanship in the witness box or lack of objectivity, and 7 Ramsay v Watson (1961) 108 CLR 642, 645 (Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ); see also Adelaide Stevedoring Company Ltd v Forst (1940) 64 CLR 538, 563-4 (Rich ACJ); Chattin v WorkCover Queensland (1999) 161 QGIG 531, 532-3 (Williams P), quoting Obstoj v Van de Loos (Unreported, Supreme Court of Queensland, Connolly J, 16 April 1987). 8 Holtman v Sampson [1985] 2 Qd R 472, 474 (DM Campbell, Macrossan and Thomas JJ). 9 Commissioner of Police v David Rea [2008] NSWCA 199, [8] (Handley AJA, with whom Allsop P and Johnson J agreed) quoting EMI (Australia) Limited v Bes (1970) 44 WCR 114, 119 (Herron CJ); Chattin v WorkCover Queensland (1999) 161 QGIG 531, 532 (Williams P) quoting Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190, 199-200 (Mahoney JA). -- 14 of 20 -- 15 whether they make proper concessions to the viewpoint of the other side;10 (e) distinctions may be drawn on the basis of demeanour (a limited ground where experts are under consideration); qualifications, impressiveness and cogency of reasoning and exposition of reasoning; preparation for, and application to, the problem in hand; and the extent to which the witness had a correct grasp of basic, objective facts relevant to the problem;11 and (f) if it is open to the tribunal to prefer one body of evidence to the other on grounds fairly discerned, the tribunal should express its reasoned preference.12 [64] In applying those propositions in the present case, it is also necessary to remember that these proceedings are conducted as a hearing de novo and the Appellant bears the onus of proof on the balance of probabilities.13 Submissions [65] The Appellant contends that he has a back injury and that the injury results from the type and style of work completed over a period of time as a significant contributing factor to the aggravation or acceleration of his back condition. [66] The Appellant relies on the report of Dr Campbell that: (a) the Appellant has a long-standing left L5/S1 disc protrusion; (b) it is likely that at least 50 per cent of his current symptomology can be related back to work activities; (c) five per cent whole person impairment is a result of work duties performed between 2002 and 2009; and (d) the Appellant's work made a major contribution to his current injury and impairment. [67] The evidence demonstrates that the Appellant was able to undertake heavy manual work prior to August 2011 and his degenerative back condition was asymptomatic. The Appellant relies on Dr Campbell's opinion, and the comment of Dr Coroneos that heavy manual work could exacerbate or contribute to degeneration of the spine, to submit that his injury was one "arising out of, or in the course of, employment." 10 Holtman v Sampson [1985] 2 Qd R 472, 474 (DM Campbell, Macrossan and Thomas JJ) quoting Joyce v Yeomans [1981] 1 WLR 549, [1981] 2 All ER 21, 27 (Brandon LJ). 11 Monroe Australia Pty Ltd v Campbell (1995) 65 SASR 16, 27 (Bollen J) quoting Sotiroulis v Kosac (1978) 80 LSJS 112 (Wells J). 12 Monroe Australia Pty Ltd v Campbell (1995) 65 SASR 16, 27 (Bollen J) quoting Sotiroulis v Kosac (1978) 80 LSJS 112 (Wells J). 13 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. -- 15 of 20 -- 16 [68] The Appellant relies on statements made by former President Hall that the test posited by the expression "arising out of": "is wider than that posited by the words 'caused by' and that the phrase 'arising out of' whilst involving some causal or consequential relationship between the employment and the injury, does not require that direct or proximate relationship would be necessary if the phrase used were 'caused by' …"14 [69] The Appellant's submission also referred to the following statement of Keane JA (as he then was) in Newberry v Suncorp Metway Insurance Ltd15, with which de Jersey CJ and Muir J agreed: "It cannot be disputed that, when s 32 of the WCRA 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 in fact does during the course of employment'." [70] The Appellant submits that, having regard to the medical evidence, the Commission should find that the injury arose out of or in the course of employment. [71] The Appellant also submits that the employment was a "significant contributing factor" to the injury because, in light of the evidence of Dr Campbell and Dr Coroneos, the heavy manual work undertaken by the Appellant at Austin Engineering is clearly a real, important and consequential cause of his injury. In support, the Appellant cites: (a) the decision of Williams P in Chattin AND WorkCover Queensland,16 in which his Honour endorsed the proposition that: "The function of a court of law in a situation such as this is to determine whether, for whatever reason, it is more probable than not that there is a causal relationship between the accident and the plaintiffs post-accident condition." (b) Croning v Workers' Compensation Board of Queensland,17 where de Jersey P held that the employment needs to be a "real effective cause" of the injury and not merely the setting or background in which the injury occurs; and (c) other decisions where "significant" has been held to mean "important" and "of consequence" in the relevant context.18 14 Avis v WorkCover Queensland (2002) 165 QGIG 788; WorkCover Queensland AND Currogh Queensland Mining Pty Ltd (2003) 172 QGIG 6, 7. 15 Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519, 529. 16 Chattin AND WorkCover Queensland (1999) 161 QGIG 531, 532. 17 Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100, 101. 18 See e.g. Qantas Airways Ltd AND Q-COMP and Michelle Blanch (2009) 191 QGIG 115, 119. -- 16 of 20 -- 17 To those authorities, I add the statement of Keane JA in Newberry that the requirement 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."19 [72] In reply, the Respondent submits that the Appellant has not demonstrated, to the requisite standard, that his claim for compensation meets the requirements of s 32(1) and (3)(b) of the Act. [73] As to whether the injury arose out of the Appellant's employment, the Respondent refers to authority for the proposition that "arising out of" employment involves a causal or consequential relationship between the employment and the injury, but does not require a direct or proximate relationship.20 [74] The Respondent submits that employment could not be viewed as a significant cause of the onset or intensification of the pain experienced by the Appellant, and the Commission ought not be satisfied that employment was a significant contributing factor because the Appellant is unable to demonstrate that what he did in the course of his duties contributed in some significant way to the occurrence of the injury. In support of that submission the Respondent points to: (a) the period between the Appellant's last working day with Austin Engineering and the onset of the symptoms on 4 August 2011; (b) the Appellant's advice to his supervisor on 4 August 2011 and subsequently that he did not sustain an injury at work, or that the injury was not work-related; (c) an intervening event (the day that the Appellant took off work to attend to a rental inspection in which he did some work to get the house prepared for the, a matter dismissed later in these reasons); (d) the fact that it was not until some nine months later in the application for compensation (Exhibit 1) that the Appellant first sought to attribute the injury as having arisen in the course of his employment; (e) Dr Howard's record in the medical certificate dated 24 April 2012 that the reported cause of the injury was "heavy lifting weights at work" when the evidence shows that the Appellant was largely operating a forklift at the relevant time; and (f) the Appellant's spinal condition was due to long-standing, chronic, pre- existing degeneration. [75] Finally, the Respondent submits that employment was not a significant contributing factor to the injury in the sense that employment could not be viewed as a significant cause of the onset or intensification of pain. In the Respondent's submission, the Appellant is unable to demonstrate that what he did in the course of his duties 19 Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519. 20 See Lackey v WorkCover Queensland [2000] 165 QGIG 22. -- 17 of 20 -- 18 contributed in some significant way to the occurrence of the injury. At most, Austin Engineering may have been the mere setting for an injury to occur. However, the expert opinion of Dr Coroneos makes it clear that all the changes shown on the CT and MRI images were due to long-standing, chronic, pre-existing degeneration. Dr Campbell holds a similar view. There was no significant neurosurgical workplace spinal injury. Nor was there any incident at work to suggest that it was more probable than not that there was a significant causal relationship between the incident and the Appellant's post-accident condition. [76] As a legal basis of that submission, the Respondent refers to the decisions in Croning v Workers' Compensation Board of Queensland and Newberry v Suncorp Metway Insurance Ltd (referred to earlier in relation to the Appellant's submissions) and Carmen v Q-COMP21 where Hall P stated: "Pleming v Workers' Compensation Board of Queensland22… does not decide that a worker afflicted by 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 suffers an 'injury' if the work is a cause of the onset or intensification of pain. Pleming, op. cit., establishes that a worker with a degenerative back will suffer an injury where the back becomes painful or more painful and the employment is a significant cause of the onset or intensification of pain." [77] As the Respondent also notes, the Appellant is not able to identify a discrete event which allegedly caused his injury, let alone the onset of pain. [78] The Respondent submits that, at most, the work performed might have been a contributing factor but it cannot be determined to be a significant contributing factor. That submission is made by reference to Dr Coroneos's views, but also Dr Campbell's evidence that he did not have a strong opinion about this and was not wedded to his 50:50 apportionment between work-related factors and other factors to the development of the Appellant's condition. [79] In essence, the Respondent submitted that the evidence demonstrates that the Appellant did not sustain a compensable injury for the purposes of s 32 of the Act. Was the injury caused by physical activity at home? [80] As noted earlier, the Respondent refers to the day that the Appellant took off work to attend a rental inspection as an intervening event, apparently on the basis that he did some physical work to get the house prepared for the inspection. [81] The Appellant's evidence was that he waited at the house for the inspection. He did not have to get the house in order as his partner and her daughters had tidied the place. If anything he tidied some of the rubbish around the yard. He did not mow the lawn in preparation for the inspection. 21 Carmen v Q-COMP (2007) 186 QGIG 512, 513. 22 Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181. -- 18 of 20 -- 19 [82] Ms Thompson gave evidence to the effect that, although she was at work that day and hence could not say what happened at home, her experience of past inspections was that her three children, aged 17 or older (particularly her son and second eldest daughter), would have done most of the work to tidy the place for inspection and that the Appellant would have done nothing except possibly pulling up the bed. [83] There is no evidence to support a finding that the injury was caused by an event on 3 August 2011. Consideration and conclusion [84] As noted earlier: (a) at the relevant time, the Appellant was a "worker" for the purposes of the Act; (b) before 4 August 2011, the Appellant had not experienced symptoms of back pain consistent with sciatica or any other significant or ongoing back pain; (c) he first experienced those symptoms when he woke up at home on 4 August 2011; (d) at 4 August 2011 the Appellant was suffering from a long-standing, but previously asymptomatic, degenerative spinal condition, described as lumbar spondylotic stenosis, particularly at L5/S1, causing sciatica; (e) I will proceed on the basis, without finally deciding the matter that the symptoms first experienced on that date were evidence of an "injury" as that term is defined in s 32 of the Act. [85] It is clear from the evidence from the Appellant, Mr Barning and Mr Martinov about the nature of the work undertaken by the Appellant when he worked at Austin Engineering from January 2005 until August 2011, that the Appellant was engaged in heavy physical activity as required by his employment throughout that period. [86] However, I am not satisfied that the Appellant's injury arose out of, or in the course of, employment or that his employment was a significant contributing factor to the injury. I have reached that conclusion for some of the reasons contained in the Respondent's submission. In particular, it is not clear that the Appellant's degenerative spinal condition commenced during the period in which he was employed by Austin Engineering or that his physical work during that period exacerbated or aggravated that condition, or even that his work contributed to his experience of symptoms related to the injury. Given that the first symptom of sciatica arose at home, at least one day after the Appellant had been at work, and there is not any evidence of an incident at work that: (a) gave rise to painful symptoms of the degenerative back condition or some aggravation of that condition; or (b) could be identified on imaging or examination by a doctor as aggravating that condition, -- 19 of 20 -- 20 there is no basis for finding that the injury arose out of, or in the course of, the Appellant's employment. Accordingly, I cannot conclude that his employment was a significant contributing factor to the injury. [87] The expert medical opinion evidence on which, in part at least, the Appellant's case is based, contains significant reservations about both the causal connection between the Appellant's employment and his injury, and the apportionment between work- related activities and extraneous factors in relation to his symptoms. In expressing that view, I am not critical of the doctors who gave evidence. Indeed, Dr Campbell showed a welcome frankness in the way he qualified his conclusions, and Dr Coroneos was willing to express a personal view which was not entirely in accord with the scientific evidence on which he relied. [88] The overall effect of the evidence is that the Appellant suffered, and continues to suffer, from a degenerative condition which may have commenced before his employment at Austin Engineering and which was asymptomatic until 4 August 2011. His symptoms became apparent outside the workplace. It is not clear what caused him to become symptomatic, but the medical evidence referred to earlier indicates that a relatively minor incident could have triggered those symptoms. [89] As a consequence of those findings and conclusions, the appeal is dismissed and the decision of the Regulator is confirmed. 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. [90] Order accordingly. -- 20 of 20 --