Chancelect Pty Ltd v Q-COMP [2013] QIRC 119

CITATION: Chancelect Pty Ltd AND Q-COMP (WC/2012/185) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 appeal to commission Chancelect Pty Ltd AND Q-COMP (WC/2012/185) INDUSTRIAL COMMISSIONER THOMPSON 13 August 2013 DECISION Introduction [1] On 9 May 2012, Chancelect Pty Ltd (Appellant) lodged with the Industrial Registrar a Notice of Appeal pursuant to s. 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Q-COMP Review Unit (Q-COMP) released on 5 April 2012. [2] Q-COMP had set aside the decision of WorkCover to reject an Application for Workers' Compensation from John Reddicliffe (Reddicliffe) and substitute a new decision to accept the application in accordance with s. 32 of the Act. Relevant Legislation [3] The Legislation pertinent to this Appeal is ss. 32 of the Act: "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.". Nature of Appeal [4] The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant (see Hans Continental Smallgoods Pty Ltd v Q-COMP1 per Bloomfield DP [then Commissioner]). Standard of Proof [5] The standard of proof upon which an Appeal of this type must be determined is that of "on the balance of probabilities". Evidence [6] In the course of the proceedings, evidence was provided by eight witnesses. [7] The Commission, in deciding to précis the evidence of the witnesses and also submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety. Witness Lists [8] The witnesses for the Appellant were as follows: • Chris McCarney (McCarney); • Dr Robert McCartney (Dr McCartney); • Dr Patricia Smart (Dr Smart); • Roderick Ayache (Ayache). 1 Hans Continental Smallgoods Pty Ltd v Q-COMP [2009] 190 QGIG 82 -- 1 of 14 -- 2 [9] The witnesses for Q-COMP were as follows: • John Reddicliffe (Reddicliffe); • Dr David Shahr (Dr Shahr); • Dr Scott Campbell (Dr Campbell); and • Dr Michael Ryan (Dr Ryan). Appellant McCarney [10] McCarney gave evidence that his current occupation was that of a General Sales Manager and he was employed in that role with Joyce Mayne at Chancelect Park Boulevard in March 2011. Reddicliffe, at that time, was employed as a Salesperson whose duties included: • sales; • maintaining store presentation; • cleaning; • moving stock (internally); • assisting customers taking delivery of purchases; and • assisting other staff with movement of stock from one location to another. [11] There was mechanical assistance available by way of trolleys for movement of stock with training also provided to staff regarding stock movement. [12] The staff were required to undertake an induction and ongoing training which addressed the issue of any injury sustained being reported to a direct supervisor on the day in question and an incident report being completed at the administration office. [13] McCarney had no recollection of Reddicliffe reporting an incident on or about 15 March 2011, nor was there an incident report completed relating to such an incident. [14] Under cross-examination, McCarney confirmed that he had been previously employed by the Appellant and that Reddicliffe was, at the time, a Salesperson in the audio-visual area where, amongst other items, televisions were sold. Reddicliffe had carried out his duties under McCarney's supervision. [15] Reddicliffe's duties had included retrieving goods from the warehouse and bringing them to the showroom as well as taking goods to customer's vehicles once a sale had been completed. In the case of televisions of 42 inch size or greater, it was preferred that items of that size be processed through the loading bay. [16] McCarney denied that Reddicliffe had ever approached him about having pulled a muscle in his buttock from having lifted a television into a customer's vehicle. In around July/August 2011 Reddicliffe had indicated that he was unable to complete his regular duties and was allocated other "lighter" duties that included computer work and printing tickets. He accepted that it was "apparent that John [Reddicliffe] had suffered some sort of injury" but it had not been noticed by him that Reddicliffe was walking other than normal [Transcript p. 1-9] and he only became aware once Reddicliffe had informed him of his condition. At no time did Reddicliffe ever indicate that the cause of his condition was work-related. [17] On Reddicliffe seeking reduced hours at work in June/July 2011, it was McCarney's evidence that he was not aware of any such approach whilst he was employed with the Appellant and had only heard about it after he had ceased his employment. Dr McCartney [18] Dr McCartney, a Specialist in Occupational Medicine for the past 17 years, examined Reddicliffe on 8 October 2012 and, in a report issued on the same date [Exhibit 4], provided an assessment regarding his work-related lower back injury. The history upon which the report was founded had been provided by Reddicliffe. [19] According to Dr McCartney, there was no evidence of any traumatic changes, only changes that are seen in all aging spines. On his experience, there was no correlation between the radiology findings and lifting in the workplace or heavy manual lifting. -- 2 of 14 -- 3 [20] The report contained the following work-related diagnosis: "The work-related diagnosis appears to be lumbar strain and aggravation of pre-existing lumbar spondylosis. The work-related injury is stable, stationary and at maximum medical improvement.". [21] The diagnosis had been made with reliance placed on the history provided by Reddicliffe, Dr McCartney stated: "I determined that, yes from the information provided that lifting of a television could have been a significant contributing factor to the development of a lumbar back strain and aggravation of his pre-exiting lumbar spondylosis.". [22] Dr McCartney gave further evidence that if there had not been an incident relating to the lifting of a television, the radiology in question would have been consistent with Reddicliffe's natural progression of the disease. [23] Under cross-examination Dr McCartney accepted that he had diagnosed Reddicliffe's lumbar strain because of what he had been told happened at work and if he had not been provided with that history he would not have put down the diagnosis of lumbar strain [Transcript p. 1-56]. [24] The lumbar strain in this case would generally get better within six weeks however Dr McCartney was of the view that as this had not occurred then there was a temporal relationship from the history provided around the lifting and the back pain with the with the logical conclusion being that lifting also aggravated his pre-existing underlying condition. [25] On questioning around the basis of his diagnosis of the aggravation of Reddicliffe's pre-existing lumbar spondylosis, Dr McCartney gave evidence that he had concluded that it was either due to the underlying condition as the natural presentation of the condition, it's natural course or you conclude that the underlying condition was an exacerbation of his pre-existing underlying condition which logically sat well with why he had persisting lumbar back symptoms [Transcript p. 1-59]. [26] Dr McCartney gave evidence in respect of the recognised treatment for injuries of this nature and confirmed that if the history given by Reddicliffe that he had suffered an injury lifting a television into a customer's vehicle was true then he stood by his opinion contained in his report [Transcript p. 1-60]. [27] In re-examination, Dr McCartney accepted that if there had not been an incident then the radiology would have accounted for the symptoms naturally occurring [Transcript p. 1-61]. On the degree of degeneration being the only significant contributing factor, if a person had bent over to pick up something not very heavy, Dr McCartney disagreed indicating that the bending itself was a specific event [Transcript p. 1-62]. Dr Smart [28] Dr Smart, a General Practitioner, saw Reddicliffe on 21 March 2011 and whilst having no independent recollection of the consultation, upon revision of her clinical notes [Exhibit 3] gave evidence that Reddicliffe had, in the course of the consultation discussed some family issues concerning his daughter as well as raising chest pain and of being tired and stressed. The notes also contained reference to "recurrent left hip and low back pain" which required physiotherapy. On whether there had been some mention of the cause of the hip pain being work-related, Dr Smart's evidence was that it was her "usual" practice to make a note if the issue of WorkCover had been discussed. In this instance there was no reference to the mechanism of injury being done at work. Dr Smart indicated that there had been a past incident where she had failed to document that injury was as a result of a work-related incident and as a consequence of the outcome of that incident she was "a lot more careful now". [29] Under cross-examination, Dr Smart confirmed on 21 March 2011 that Reddicliffe was referred for physiotherapy which, in her opinion, was particularly useful for patients with long-standing back pain and that it was a treatment commonly prescribed for someone with lumbar strain. [30] In re-examination, Dr Smart conceded that she had not, on 21 March 2011, diagnosed Reddicliffe with lumbar strain. Ayache [31] Ayache is the proprietor of the Joyce Mayne store that retails electrical appliances including televisions and washing machines and was in that position in March 2011. In evidence he described the departmental operation of the business confirming that in March 2011 McCarney was a Department Head in charge of "brown goods" (eg. televisions, hi-fi) and that Reddicliffe was a Salesman working under McCarney. -- 3 of 14 -- 4 [32] He was aware that Reddicliffe had made a claim for compensation for a back injury said to have occurred in the course of his employment. Whilst knowing that prior to the alleged incident (relating to the back injury) Reddicliffe had health issues, there had never been any discussions with Reddicliffe about having injured his back nor had he noticed him having difficulty in walking. [33] Prior to Reddicliffe making his claim for compensation, he had sought to change his employment status from permanent full-time to permanent part-time which was rejected by the Employer. Ayache could not recall the date of the exchange about the employment status with Reddicliffe however suggesting it was a fortnight prior to him stopping and making the claim for workers' compensation. [34] Under cross-examination, Ayache gave evidence that Reddicliffe stopped working for him in August 2011 and he was dismissed from his employment in February 2012. At the time Reddicliffe had sought to reduce his hours by moving to permanent part-time, Ayache, in evidence, "definitely" did not recall the reason given was to assist him with the recovery of his back injury, nor could he recall that Reddicliffe did not want to accept a casual position because of concerns about losing security of employment. [35] Ayache accepted that Reddicliffe had ceased to attend work from August 2011 because of a health issue "namely that he had a significant pain in his lower back" [Transcript p. 2-8]. He did not accept that he had noticed Reddicliffe (prior to ceasing work) was not walking in a normal manner or that in about August 2011 he was receiving chiropractic treatment. Ayache also had no recall of an alleged conversation in July/August 2011 involving Reddicliffe, Ron McCrae and himself where Reddicliffe had mentioned injuring his back lifting a television into a customer's vehicle. [36] In regards to a number of email exchanges between Q-COMP and himself, Ayache did not recall offering certain opinions in respect of Reddicliffe which included references to issues with his lower back [Transcript p. 2-9]. Other exchanges were said to include the claim for compensation was not legitimate. The email was said to contain reference to an email from a Workplace Health and Safety - Industrial Inspector regarding an incident report. Note: The email was tendered for identification subject to Ayache (on his return to Queensland) confirming or otherwise the email as being generated by him. In line with a commitment given in the proceedings, the email was presented to Ayache (on his return) and the Commission was advised in an email from Ms Ruth Jamieson of Q-COMP on 30 April 2013 that the email was confirmed by Ayache and to change the status from being tendered as an item for identification to that of being an exhibit. The email became [Exhibit 6] by consent. [37] In re-examination, Ayache indicated that between August 2011 and February 2012, whilst Reddicliffe was away from his work, he was aware that Reddicliffe had been providing certificates stating that he was incapacitated for work. Q-COMP Reddicliffe [38] Reddicliffe had been an Employee of Chancelect between September 2008 and ceased when his employment was terminated in February 2012, He was employed as an electrical goods Salesperson and his duties included: • sales; • maintenance of stock; • stock presentation; • merchandising; • setting up displays; and • cleaning stock. [39] The hours of work for the majority of time were 8.30 a.m. to 5.30 p.m. and he worked a roster that allowed him to have one weekend a month away from work. Evidence was given in respect of the layout of the store, the warehouse and the role undertaken by McCarney. [40] In terms of the incident said to have caused the injury to his back, Reddicliffe gave evidence that having sold to a customer a 40 inch Sony Television, he had wheeled (on a trolley) the television to the customer's vehicle and when loading it into the vehicle, he "felt a - like pinch in my bum". The incident was said to have occurred at around lunch time on 15 March 2011. -- 4 of 14 -- 5 [41] On his return to the store, his evidence was that he said to McCarney "Chris, you wouldn't believe it, I tried to put the customer's TV in the car and I felt a pinch in me bum". Neither he nor McCarney took the incident seriously and both had a giggle about it. He continued to work that day and recalled he had no pain and did not seek medical treatment. [42] On or around 21 March 2011 he attended Dr Smart in respect of a chest condition and in the course of the consultation mentioned that he still had pain in his hip. Reddicliffe gave evidence that he had not explained to Dr Smart the cause of the pain as at that point of his life his father was dying. A referral was given to see a Physiotherapist which he did however after the first consultation he opted not to seek further treatment because "he felt nothing had been achieved" and "the help offered didn't present that it was going to be a benefit to me in any way.". [43] Reddicliffe, on 12 April 2011, visited Dr Shahr (a Chiropractor) so as to access a different form of treatment of the pain in his back. He had informed Dr Shahr that he had injured himself lifting a television and putting it in the back of a car. [44] In July 2011 Reddicliffe consulted with Dr Ryan (a General Practitioner) receiving treatment for his back pain for about five months. In this time he was prescribed "Mobic, Panadeine Forte and Osteoeze" however eventually the condition worsened to the extent he was unable to continue working. It was only at this time he informed Dr Ryan that it was a work-related injury and on Dr Ryan's suggestion he made a claim for workers' compensation. [45] On the reason for making the claim at that time rather than earlier, Reddicliffe gave evidence that "I didn't consider it to be a serious nature like, whenever I've had any form of injury like that, normally give it a week or two and its been fine and it was something that I thought would be able to be self-managed.". [46] Reddicliffe stated that at various times he had discussions with McCarney about his back injury and treatment following the incident on 15 March 2011. He had made an approach to Ayache to reduce his hours of work (due to the injury) but was only offered casual employment which did not suit due to concerns about job security. The last date he had physically worked for Chancelect was 28 or 29 August 2011. In February 2012 he received a letter terminating his employment. [47] Under cross-examination, Reddicliffe acknowledged that there had been an induction in the workplace regarding health and safety but could not recall being advised of the requirement to complete an incident report if injured [Transcript p. 1-23]. He gave evidence about the mechanism of injury and of having informed McCarney how he had hurt his back with words to the effect "It was putting a TV in the back of a car" [Transcript p. 1-24]. McCarney's response was not to take the "twinge in his bum" as a serious issue. [48] Reddicliffe's evidence was that the injury was not considered serious and that he "didn't consider it serious or worthy of a report to begin with" thus an incident report was never completed by him. Although once he commenced the chiropractic treatment he considered the injury serious and informed McCarney that he was seeing a Chiropractor [Transcript p. 1-25]. The evidence was that Ayache was told in July 2011 that he was having trouble with his lower back and how the injury had occurred. At this time there was a reduction in his workload. [49] Reddicliffe denied that he had made up the claim that both McCarney and Ayache had, at around the time of the reduction in workload, made comments about him walking funny and having problems with his back [Transcript p. 1-27]. The reason his workload had been reduced was said to be due to the awareness of McCarney and Ayache of his back injury. [50] On his consultation with Dr Smart on 21 March 2011, Reddicliffe denied telling her that he had long-standing back and hip pain, stating that he probably told her "I've had a problem before" [Transcript p. 1-29]. Reddicliffe could not recall informing Dr Smart that he had hurt his back at work, later in evidence stating "I probably told her that I hurt my back at work" [Transcript p. 1-30]. Further in evidence he indicated that he had told Dr Smart that the pain in his hip had arisen from being "hurt in the past" [Transcript p. 1-31]. The pain in his hip, according to Reddicliffe, had been around for about five years. Reddicliffe confirmed that the first time he had a discussion with the General Practitioners about WorkCover had been with Dr Ryan on 29 August 2011. He had informed Dr Ryan that he had been seeing a chiropractor "regularly" and it had been alleviating the pain on a short-term basis. [51] In terms of the Chiropractor, Reddicliffe's evidence was that he commenced treatments on 12 April 2011 and at the time informed the Chiropractor that he had "hurt my back putting a TV in the back of a car when I was at work" [Transcript p. 1-34]. Reddicliffe was taken to a document [Exhibit 2] which was a form completed by himself at the time of commencing his chiropractic treatment. He acknowledged that in the section "What -- 5 of 14 -- 6 caused the problem" he had written "moving TV" and had given his occupation as a Salesperson [Transcript p. 1-36]. [52] Questions were put to Reddicliffe regarding the proposed changing of his employment status to part-time in and around late July early August 2011 and Reddicliffe accepted that he saw Dr Ryan about his back after he was told he could not have permanent part-time employment [Transcript p. 1-39]. [53] In re-examination, Reddicliffe gave evidence that in 2011 he did not move any other TV's where he felt pain in his back and that the reason he made his claim for compensation when he did was because it had reached a point where he could no longer manage "it" himself. Note: The Appellant, arising from the evidence of Reddicliffe made arrangements to call evidence from Ayache who at the commencement of proceedings was not on their witness list. It was by consent that following that evidence, if Reddicliffe was required for further examination that evidence be given by way of a recall. Following the evidence of Ayache, further evidence was given in the proceedings by Reddicliffe. [54] In further cross-examination, Reddicliffe accepted that his evidence of the previous day regarding having no knowledge of the procedure for reporting incidents in the workplace was not true [Transcript p. 2-13]. He did not concede that his evidence regarding the incident and of informing McCarney and Ayache did not happen. Reddicliffe also refused to accept the proposition that the claim for workers' compensation was only made because he could not go part-time [Transcript p. 2-15]. [55] In further re-examination, Reddicliffe "vaguely" remembered signing the Occupational Health and Safety Checklist presented to him by Counsel for the Appellant which confirmed he was aware of the procedure of reporting incidents in the workplace [Transcript p. 2-15]. Dr Shahr [56] Dr Shahr, a registered Chiropractor practising in Queensland since 2007, commenced treatment of Reddicliffe on 12 April 2011. In his initial examination, he found that Reddicliffe had pain in his hip that emanated close to the spine and radiated down towards the leg. At the time of consultation, he had been informed that the pain had started following an incident a month earlier where Reddicliffe had been lifting a television at work. [57] Dr Shahr gave evidence that apart from conducting a physical assessment he took x-rays of Reddicliffe's spine which was followed up by treatment that included stretching and adjustments. The patient had also been instructed with regards to "home care" that required the application of ice and further stretching. [58] In the period between 12 April and 7 December 2011 he had provided treatment to Reddicliffe on 50 occasions. [59] Under cross-examination, Dr Shahr accepted the patient information form completed by Reddicliffe on 12 April 2011 had made no reference to the moving of the TV happening at work. Dr Shahr further accepted that when taking down the history from Reddicliffe about the incident, he had not written down that it was work-related and he accepted that this was significant in terms of ramifications with respect of WorkCover claims [Transcript p. 2-19]. In response to a question from the Commission, Dr Shahr's evidence was that when a patient sought treatment for an injury said to have happened at work, he would normally write down where the incident had happened. [60] In re-examination, Dr Shahr's evidence was that he was "pretty sure" that in the course of the examination of Reddicliffe he was told the cause of the complaint was lifting the television at work. Dr Campbell [61] Dr Campbell, a Neurosurgeon, gave evidence that at the request of Reddicliffe's solicitors, he saw him on 29 February 2012 and subsequently provided a report [Exhibit 5]. [62] In the report Dr Campbell confirmed that he had relied upon the history provided by Reddicliffe, in addition to other material including medical reports from Dr Ryan and Dr Shahr. He accepted that Reddicliffe's injury was consistent with manoeuvring a television into the boot of a customer's vehicle and that this incident was the sole cause of the injury as prior episodes of lower back pain were minor and had not contributed to the overall impairment. The condition was said to be "now" stable and stationary, however his symptoms were chronic and unlikely to improve into the future. -- 6 of 14 -- 7 [63] In his evidence-in-chief, Dr Campbell provided information regarding the medication that had been prescribed for Reddicliffe by his General Practitioner and, in particular, Voltaren, Mobic and Nurofen which were anti-inflammatory medications. He also mentioned two "Cortisone trigger point" injections which assist with the resolution of symptoms. [64] Under cross-examination, Dr Campbell was questioned about the preparation of his report including the history provided by Reddicliffe. It was put that if an incident was alleged to have occurred but did not, would that change his view, to which he replied "Yes, that may - that may change my view" [Transcript p. 2-22]. [65] On the issue of whether there were significant degenerative changes within Reddicliffe's lumbar spine, Dr Campbell's evidence was that he had not cited the CT Scan, but indicated that no 43 to 44 year old would have a pristine spine and it was all normal wear and tear changes you would see in any spine for that age grouping [Transcript p. 2-23]. With regards to the disc herniations at L45 and L5S1, Dr Campbell's evidence was that having not seen the CT Scans, they would however more than likely go to normal age-related changes, accepting that without seeing the CT Scan he could not be 100 percent sure. [66] On the hip and back pain Reddicliffe had for some time prior to the alleged incident, Dr Campbell recalled that Reddicliffe had informed him of minor episodes of such pain over the years which, if correct, were not consistent with wear and tear. Although if there was a more significant history including active treatment for a bad back, then some of his problems could be due to a pre-existing back injury [Transcript p. 2-24]. [67] Dr Campbell opined that if there had not been an incident, then Reddicliffe is likely to have continued in an asymptomatic fashion with regard to his lumbar spine [Transcript p. 2-25]. On the issue of Reddicliffe's buttock pain, Dr Campbell's evidence was that lower back pain is a general term which covers buttocks, lower back, lower flanks, thoracolumbar junction, tailbone and hips. Dr Ryan [68] Dr Ryan, a General Practitioner, first saw Reddicliffe on 22 March 2011 in respect of tests that had been undertaken for some atypical chest pain. He next saw him on 15 August 2011 where he treated him for burstitis in his hip, in addition to left-sided paresthesia (numbness) that went down to his calf muscle. Dr Ryan ordered a CT scan for the purposes of an investigation into the left-sided paresthesia which had indicated that the nerve root was likely being compressed. [69] On 19 August 2011 the results of the CT scan were given to Reddicliffe and a course of treatment was taken in the form of "hydra cortisone local anaesthetic injections" which were performed by Sunshine Coast Radiology on 22 and 26 August 2011. [70] Reddicliffe attended for a consultation on 29 August 2011 where Dr Ryan's medical notes recorded there was improved back pain and that a letter was written to WorkCover. The issue of WorkCover, according to Dr Ryan, had "probably" been the discussion of the mechanism of his injury that had originally been presented to a colleague in the practice and Reddicliffe would have mentioned the injury had happened at work. Reddicliffe had further consultations in October 2011 where updated WorkCover Medical Certificates were issued. Submissions Q-COMP [71] Written submissions from Q-COMP supported the decision of the Review Unit being confirmed. Details of the Application for Compensation made by Reddicliffe on 29 August 2011 were provided that included reference to: • his employment status; • the injury happening on 15 March 2011; • the specifics of the injury; • the cause of the injury being lifting a television into a customer's vehicle; and • advising McCarney of the injury. [72] The findings of Q-COMP were said to be that there was no evidence to dispute that the incident did not occur other than Reddicliffe not reporting the incident or completing an incident report. [73] The evidence before the proceedings was subject to scrutiny with reference made in respect of a number of witnesses. -- 7 of 14 -- 8 McCarney [74] McCarney had indicated that Reddicliffe had never informed him of the incident in question but had stated in cross-examination that Reddicliffe was unable to complete regular duties in or around June/July 2011 and allocated other duties yet he denied in cross-examination that at that time having noticed Reddicliffe walking funny although earlier having given evidence to the effect that it was apparent Reddicliffe had suffered some sort of injury [Transcript p. 1-8]. Reddicliffe [75] In evidence Reddicliffe gave a detailed account of the incident which at the time he did not regard as serious hence the reporting to McCarney of the injury in a jokingly manner. He did not seek medical treatment on 15 March 2011 but as the pain got worse he raised the matter with a General Practitioner who was treating him for another condition. He had undertaken a range of treatments including physiotherapy and chiropractic and had only made the claim for Workers' Compensation when the pain had reached a point where he could not handle it any longer. The evidence was that McCarney over time had made enquiries about his back and towards the end of his employment also mentioning his back problem to Ayache when seeking unsuccessfully to get permanent part-time employment. Ayache [76] As the Proprietor, Ayache did not directly supervise Reddicliffe and gave evidence that he was not told that Reddicliffe had injured his back in March 2011 although in cross-examination he had stated that he knew Reddicliffe had not attended work for 90 days from August 2011 because of severe pain in his back. Despite Ayache denying knowledge of Reddicliffe's injury, the evidence is that by an email dated 12 March 2012 to Q-COMP, Ayache did have knowledge that he was having issues with his lower back and hips and that had been taken into account prior to late August 2011 when assigning work duties. [77] Reddicliffe was vigorously cross-examined but he did not depart from his evidence-in-chief that: • he had hurt his back on 15 March 2011 as described; • he had reported the incident, albeit informally to McCarney; and • McCarney had been kept informed of the chiropractic treatment he was receiving. [78] The medical evidence was that Reddicliffe saw Dr Smart (General Practitioner) on 21 March 2011 for chest pain but had raised the issue of recurrent hip and low back pain leading to the referral to a Physiotherapist. [79] Dr McCartney (Occupational Physician), based upon information received from Reddicliffe, opined that due to him lifting the television into the customer's vehicle at work had suffered a lumbar strain and aggravation of pre-existing lumbar spondylosis. [80] The opinion of Dr Campbell (Neurosurgeon) was that as a result of Reddicliffe manoeuvring a television into a customer's vehicle (the boot) it was consistent with causing "a soft tissue musculo-ligamentous injury of the lumber spine" and that the incident was the sole cause of the injury. Under cross-examination Dr Campbell was requested to accept that the 15 March 2011 incident involving Reddicliffe did not happen and that degenerative changes to Reddicliffe's lumbar spine could account for the symptoms he was suffering. Dr Campbell had answered that proposition in that degenerative changes could be one reason for the pain and suffering if the 15 March 2011 incident did not happen, however Reddicliffe's evidence was that he did not have a long-standing hip and back pain, only minor episodes of lower back pain which had not interfered with his day-to-day work activities. [81] It was submitted that if the Commission accepts that Reddicliffe had no significant lower back pain prior to 2011 that interfered with his work activities, and that the 15 March 2011 incident occurred, then on Dr Campbell's evidence the claim is one for acceptance. [82] Dr Shahr (Chiropractor) gave evidence that when Reddicliffe consulted him on 12 April 2011 he had informed him that the cause of the complaint was lifting a television whilst at work and this was supported on a patient information sheet where Reddicliffe had thought the problem was caused by "moving a TV" [Exhibit 2]. In re-examination, Reddicliffe's evidence was that he did not move any other television in 2011 that caused him pain. [83] The sections of the Act said to have application in the Appeal were identified as s. 32 and s. 559. -- 8 of 14 -- 9 [84] With regards to the nature of the Appeal, it was submitted that under the Act it was not an Appeal strictu sensu, but a trial of the claim of the injured worker. The Commission must be satisfied that the factual situation is such that the worker has suffered an injury within the meaning of the Act. [85] Authorities cited supporting this proposition were: • Qantas Airways Limited v Q-COMP2; • Labaj v WorkCover Queensland3 ; and • McDonald v Q-COMP4. [86] The onus of proof falls upon the Appellant on the balance of probabilities to prove that Reddicliffe did not suffer an injury within the meaning of the Act with reliance placed upon the following authorities: • State of Queensland (Queensland Health) v Q-COMP and Coyne5 ; • Labaj v WorkCover Queensland, op cit; • Briffa v Q-COMP6; and • Mimica v Q-COMP7 . [87] It was stated that whilst there is room for intuitive reasoning in the determination of whether a worker has suffered an injury within the meaning of the Act, in the process of determining the question of fact, the Commission cannot substitute speculation for satisfaction on the balance of probabilities. [88] There was, according to the submission, no doubt that Reddicliffe was a "worker" within the meaning of the Act and that he had suffered a personal injury. The Commission can be satisfied on the balance of probabilities that the personal injury to his lumbar spine arose out of or in the course of his employment and his employment was a significant contributing factor to the injury which was sustained when he was lifting a television into a customer's vehicle on 15 March 2011. [89] Reddicliffe had made his Application for Compensation following a suggestion from Dr Ryan with the case said to be similar in some respects to the matter of Goodman Fielder v WorkCover Queensland8 where President Hall had relevantly stated: "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 shoelaces 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 that there was proximity of time between the incident and the onset of a 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.". [90] In Reddicliffe's case, he immediately felt pain after the 15 March 2011 incident which gradually got worse, consulting Dr Smart on 21 March 2011 and then seeking chiropractic treatment from Dr Shahr on 12 April 2011. Dr Campbell's evidence was that if there was no significant lower back pain prior to 2011 that interfered with his ability to work and the 15 March 2011 incident occurred as it is said to have occurred then the claim is one for acceptance. [91] There was no evidence led by the Appellant that suggests that the injury sustained by Reddicliffe was other than from the work incident of 15 March 2011 and on the state of the evidence any other conclusion would be speculation. [92] In conclusion, it was submitted that the Appeal be dismissed, that the review decision be confirmed and that the Appellant be ordered to pay Q-COMP's costs. 2 Qantas Airways Limited v Q-COMP [2006] 181 QGIG 301 3 Labaj v WorkCover Queensland [2005] 174 QGIG 370 4 McDonald v Q-COMP [2008] 188 QGIG 180 5 State of Queensland (Queensland Health) v Q-COMP and Coyne [2003] 172 QGIG 1447 6 Briffa v Q-COMP [2005] 180 QGIG 70 7 Mimica v Q-COMP [2007] 184 QGIG 31 8 Goodman Fielder v WorkCover Queensland [2004] 175 QGIG 871 -- 9 of 14 -- 10 Appellant [93] The written submissions, in the first instance, provided details regarding Reddicliffe's employment and of his Application for Compensation that included: • commenced employment in September 2008; • employed as a Salesperson ("brown goods"); • alleges he injured his lower back on 15 March 2011 lifting a television set into a customer's vehicle (in the course of his employment); • did not make an Application for Compensation until 29 August 2011; • WorkCover rejected the application on the basis that he did not suffer an injury within the meaning of the Act (29 November 2011); • Reddicliffe sought review of that by Q-COMP (28 February 2012); and • Q-COMP set aside the decision of WorkCover finding the claim one for acceptance in that he suffered an injury within the meaning of the Act. [94] On the nature of the hearing, it was the position that the Appellant is required to adduce by way of admissible evidence those matters upon which it relies to escape liability, it is then of the Commission to determine in all the circumstances of the case whether Reddicliffe had suffered an injury within the meaning of s. 32 of the Act. [95] The submission also dealt with the aggravation of a pre-existing injury indicating that a worker was only entitled to benefits to the extent of any aggravation. [96] The issue for determination was whether in fact the incident alleged by Reddicliffe that he suffered an injury to his lower back lifting a television into a customer's car had occurred. [97] There was specialist medical evidence from Dr McCartney and Dr Campbell with the evidence of Dr McCartney being that if the incident (lifting the television into a customer's car) did not happen then the natural occurring degenerative changes within Reddicliffe's lumbar spine shown on radiology would be consistent with the symptoms that he had been suffering. Dr Campbell, it was suggested, had reluctantly agreed with the same proposition when stating: "Well I think that if the incident didn't happen then there are options as to what might have caused his lower back injury and one of them would be, of course, that he has developed a severe exacerbation of his previous degenerative changes. That would be one scenario, yes". [Transcript p. 2-26]. [98] The submission went to the credibility of the witnesses in the proceedings. [99] In the case of Reddicliffe, it was said that he was an unreliable, inconsistent and uncredible witness who would say anything to advance his cause. Further that he was evasive when answering questions and gave differing answers to similar questions in examination-in-chief and cross-examination. A number of examples, said to be in question, were provided on issues that included: • information given to Dr Shahr about the circumstances of his injury; • the alleged conversation with McCarney about his back; • evidence around the proposition that he was walking funny; • unconvincing, vague and untruthful in cross-examination about his consultation with Dr Smart on 21 March 2011; and • evasive about pre-existing hip and back pain. [100] In terms of Dr Shahr, the submission argued that he suffered the same evasiveness, inconsistency and uncredibility as Reddicliffe with a number of examples provided said to illustrate that point, including reference to whether Reddicliffe had informed him that he had hurt his back lifting a television whilst at work. [101] Dr Smart was said to be quite emphatic in terms of her evidence about recurrent left hip and low back pain, particularly that it comes and goes over a long to medium time, probably months rather than a few days and that if there had been mention by Reddicliffe of it happening at work, she would have noted it in her medical records because of previous experiences with WorkCover. On Reddicliffe receiving treatment from a Physiotherapist, Dr Smart had given evidence that this treatment was useful for long-standing back pain as a preventative theory and that physiotherapy was treatment for lumbar strain, although acknowledging she had not diagnosed Reddicliffe with lumbar strain. [102] The factual witnesses, despite some criticism of their evidence by Q-COMP, were said to be forthright and consistent with their answers. The criticism that McCarney and Ayache were unreliable witnesses was resisted. -- 10 of 14 -- 11 [103] In conclusion, it was submitted that: • the undisputed facts are that Reddicliffe attended Dr Smart on 21 March 2011 with recurrent left hip and lower back pain; • Reddicliffe then had some chiropractic treatment with no mention of any work-related injury; and • it was not until 29 August 2011 that Reddicliffe made any mention to a medical practitioner about the issue of WorkCover and this had occurred only after he had been denied permanent part-time employment. [104] Irrespective of what tests were to be applied, the Commission could not be satisfied that Reddicliffe suffered an injury at work on or about 15 March 2011 of which the first report of any work-related injury had been on 29 August 2011 to Dr Ryan. [105] The medical evidence supports the proposition that if the incident did not occur, then what Reddicliffe was suffering is consistent with the underlying degenerative process. [106] The witness evidence on behalf of the Appellant was credible and did not suffer the same degree of inconsistency, unreliability and untruthfulness of Reddicliffe's evidence. [107] On the whole of the evidence, it was submitted that the Commission could not be satisfied that Reddicliffe had suffered an injury at work on 15 March 2011. Reddicliffe had experienced back problems over the years and only made a claim for workers' compensation when the Employer refused his request to go on permanent part- time employment. [108] The decision of Q-COMP (dated 3 April 2012) should be set aside with the claim for compensation (dated 29 August 2011) being one for rejection. [109] There was no injury suffered by Reddicliffe within the meaning of s. 32 of the Act. [110] The Appeal should be allowed with Q-COMP ordered to meet the Appellant's costs of the Appeal. Conclusion [111] In the determination of this Appeal it was not of contest that at 15 March 2011 when Reddicliffe alleged he suffered an injury to his lower spine he was, for the purposes of s. 11 of the Act, a "worker". [112] On the matter of injury, there was in the course of proceedings evidence of a medical nature from two treating General Practitioners in addition to evidence from two Medical Specialists. [113] Reddicliffe had consulted with Dr Smart (General Practitioner) on 21 March 2011 for reasons identified in Dr Smart's clinical notes as "chest pain, tired and stressed". At that consultation, reference was made to a "recurrent left hip and low back pain". Dr Smart was forthright in her evidence that Reddicliffe had made no mention of the hip and low back pain being work-related or mention of the mechanism of injury. Dr Smart had, at the time, referred Reddicliffe to a Physiotherapist for treatment which was ceased by Reddicliffe after one visit as he felt it was of no benefit. [114] Dr Ryan (General Practitioner) had seen Reddicliffe on 22 March 2011 in respect to tests that had been ordered for Reddicliffe regarding atypical chest pain, however there was no evidence that at the consultation of Reddicliffe raising the issue of hip or back pain. Reddicliffe next consulted with Dr Ryan on 15 August 2011 where he was treated for burstitis in the hip and left-sided paresthesia that went down to his calf muscle and ordered to undertake a CT Scan which found that it was likely that for the left-sided paresthesia there was a compression of the nerve root. [115] Reddicliffe received a course of treatment in days following and saw Dr Ryan on 29 August 2011 at which time there was an improvement of the back pain. [116] In the case of the Medical Specialists, Reddicliffe saw Dr Campbell (Neurosurgeon) on 12 February 2012 with a diagnosis made that Reddicliffe had an injury that was chronic and unlikely to improve into the future. On 8 October 2012 Reddicliffe was examined by Dr McCartney (Specialist in Occupational Medicine) who diagnosed Reddicliffe to have "lumber strain and aggravation of pre-existing spondylosis". [117] Reddicliffe had visited Dr Shahr (Chiropractor) on around 50 occasions between 12 April and 7 December 2011. Dr Shahr gave evidence that on his initial examination on 12 April 2011 that Reddicliffe had pain in his hip that emanated close to the spine, radiating down towards his leg. -- 11 of 14 -- 12 [118] The medical evidence adduced on behalf of the Appellant and Q-COMP was sufficient in nature for a finding to be made that Reddicliffe had suffered a personal injury. [119] In terms of the Appeal, the question for the Commission is whether the personal injury suffered by Reddicliffe arose out of, or in the course of, his employment and if so was his employment a significant contributing factor to the personal injury said to have occurred at 9.00 a.m. on 15 March 2011 as contained in Reddicliffe's Application for Workers' Compensation dated 29 August 2011. [120] The Appellant, with whom the onus of proof falls, established through the evidence of McCarney and conceded by Q-COMP that Reddicliffe, following the alleged incident of 15 March 2011, had not completed an incident report in line with Employer's requirements that had been made known to all staff, including Reddicliffe, through induction processes and ongoing training provided by the Employer. Further, McCarney's evidence was that as Reddicliffe's direct Supervisor at 15 March 2011 he had no recollection of him reporting (verbally) an incident on that day. [121] Dr Smart called to given evidence on behalf of the Appellant was the first Medical Practitioner to see Reddicliffe after 15 March 2011 and her evidence supported by her clinical notes was that he had seen her for the primary reason of chest pain, tiredness and stress. The clinical notes contained a mention of recurrent left hip and low back pain. [122] The definition of "recurrent" is found in the Macquarie Dictionary as: "adjective 1. that recurs; occurring or appearing again, especially repeatedly or periodically". This would seem to support a proposition that the pain Reddicliffe was experiencing on 21 March 2011 was pain that had been ongoing rather than a new condition necessarily from around the time of 15 March 2011. A crucial aspect of Dr Smart's evidence was that Reddicliffe had not identified that the condition relating to his hip and lower back was work-related, nor had he informed Dr Smart of a mechanism of injury. [123] At the consultation with Dr Ryan on 22 March 2011 there is no evidence of Reddicliffe having raised the issue of hip or lower back problems. [124] On 12 April 2011 Reddicliffe commenced what was to be an extensive chiropractic treatment program (some 50 visits) and in doing so completed at the time a "Confidential Patient Information" form [Exhibit 2] in which he identified the main problem as being his "hip". There were references in the document that his condition was aggravated by driving, working and sleeping. Also, the effect on his work was identified as decreased productivity and exhausted at the end of the day. [125] Reddicliffe indicated in the form that the cause of the problem was "moving TV" but made no mention of the incident being work-related or happening as a result of a work-related activity. [126] In evidence, Dr Shahr (Chiropractor) conceded that he had not made a note that the injury was work-related and that it was his normal practice to make such a note as he was aware of the ramifications of the failure to do so in terms of a claim for workers' compensation. [127] On examination of the contemporaneous medical evidence and clinical notes for the period 21 March to 12 April 2011, it is clear that on three occasions Reddicliffe had the opportunity to disclose to the General Practitioners and the Chiropractor that he had suffered a work-related injury, however did not made such a disclosure until his claim for workers' compensation dated 29 August 2011. [128] It is open to the Commission to conclude that the evidence before the proceedings supports findings that at the time (15 March 2011) Reddicliffe alleges he injured his lower back lifting a television into a customer's vehicle that he: • did not report the incident to his supervisor (McCarney); • did not complete an incident report in line with the Employer's policies and procedures; • made no claim for workers' compensation (at that time); • made no disclosure of a work-related injury to treating Medical Practitioners between 21 March and 12 April 2011; and • first disclosed to a Medical Practitioner that he had suffered a work-related injury regarding his claim for compensation to Dr Ryan on 29 August 2011, some five months after the date of the alleged incident. -- 12 of 14 -- 13 [129] The Specialist medical evidence of Dr McCartney and Dr Campbell was that at the time of their examinations, they had both relied upon a history as provided by Reddicliffe with there being common ground in that each made a diagnosis that Reddicliffe had suffered an injury that was consistent with the version of the incident by Reddicliffe regarding the mechanism of injury. [130] Dr McCartney, in evidence, accepted that if there had not been an incident as described by Reddicliffe, the radiology would have accounted for the symptoms naturally occurring. [131] Dr Campbell, in cross-examination, when asked whether he would change his view of the cause of Reddicliffe's injury if the incident as described by him had not occurred, replied "Yes that may - that may change my view" [Transcript p. 2-22]. [132] The Commission, as documented earlier, relied upon the evidence of the Medical Specialists in determining that Reddicliffe has suffered a personal injury in accordance with the Act. However their evidence regarding the causal nature of that injury needs to be considered in relation to the information relied upon by them in reaching their conclusions. [133] The information upon which the Medical Specialists relied was that solely provided by Reddicliffe and that evidence was uncorroborated in the proceedings. Upon examination of Reddicliffe's evidence there appeared to be a number of occasions where his evidence was "at odds" with the evidence of McCarney, Dr Smart and Dr Shahr. [134] In the case of McCarney, it is a matter of reaching a view as to whether it was safe to accept the evidence of him over Reddicliffe or vice versa based upon their presentation and demeanour. Dr Smart, on the other hand, was a witness from outside the area of employment and her evidence was supported by clinical notations made contemporaneously at the time of the consultation with Reddicliffe. Reddicliffe's evidence-in-chief was that he had informed Dr Shahr that he had hurt his back lifting a television into a vehicle. However, in cross-examination, added to that claim that he had informed Dr Shahr that it happened when he was at work. That evidence was then challenged through the "Confidential Patient Information" form which contained no mention of work being the cause of the injury. Reddicliffe's truthfulness was also placed into question over evidence he had given about having no knowledge of the procedure of incident reporting then retracted that evidence when he was recalled to give further evidence. [135] The Commission does not take issue with the submissions advanced by the Appellant that Reddicliffe was an unreliable, inconsistent and not a credible witness. On that basis, the history of the alleged incident of 15 March 2011 given to the Medical Specialists is unlikely, in the circumstances, to have been reliable to the extent their opinions on the causal capture of his injury could be accepted with any reasonable level of confidence. [136] In areas where Reddicliffe's evidence differs from that of McCarney and Dr Smart, the Commission is inclined to accept the evidence of the latter over that of Reddicliffe. [137] The argument of the Appellant was that the Commission could not be satisfied that Reddicliffe suffered an injury at work and the evidence before the proceedings was such that a finding of that nature could be reached. [138] Q-COMP had put the case that there was no evidence led by the Appellant that the injury was caused by other events outside of work and any other conclusion would be speculation. In support of their position around the matter of speculation, Q-COMP relied upon the authority of Goodman Fielder v WorkCover Queensland9, specifically the following passage of that decision where President Hall had stated: "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 shoelaces 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 that there was proximity of time between the incident and the onset of a 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.". [139] The Commission accepts that on the evidence before the proceeding that a finding of some causal incident other than the injury alleged to have occurred on 15 March 2011 would fit comfortably within the definition of speculation. However that does not mean then by default the alleged incident of 15 March 2011 is automatically accepted as the causal event of Reddicliffe's injury. 9 Goodman Fielder v WorkCover Queensland [2004] 175 QGIG 871 -- 13 of 14 -- 14 [140] The Appellant has, through evidence in line with the appropriate standard of proof, identified that Reddicliffe had at 21 March 2011 a recurrent left hip and low back pain of some standing. The evidence of McCarney and Ayache was that around July/August 2011 Reddicliffe had some form of injury or discomfort as he was allocated duties of a "lighter" nature. The Commission has found he suffered a personal injury. [141] There is accepted evidence that on 15 March 2011 Reddicliffe did not report to McCarney an incident said to be that he injured his back whilst putting a television into a customer's vehicle. It is not of dispute that Reddicliffe did not complete an incident report on 15 March 2011 documenting pain or discomfort as a result of the incident said to have caused his injury. [142] The evidence is overwhelming that in consultations with Dr Smart and Dr Ryan on 21 and 22 March 2011 that Reddicliffe made no disclosure that he had suffered a work-related injury on 15 March 2011 nor is there evidence that on 12 April 2011 in his initial visit to the Chiropractor that he identified the cause of his condition as being work-related. [143] In all there is insufficient evidence before the Commission that would support a determination that on 15 March 2011 Reddicliffe suffered an injury to his lower back whilst loading a television into a customer's vehicle. [144] There has been in the proceedings some suggestion that Reddicliffe had only made the Application for Compensation following the refusal of the Employer to allow him to alter his employment status from permanent full-time to permanent part-time. The Commission declines to comment on this suggestion as to do so would be pure speculation. Finding [145] On consideration of the evidence, material and submissions in these proceedings, the Commission finds that when applying standard of proof, being that of "on the balance of probabilities", Reddicliffe did suffer a personal injury in accordance with the Act. [146] The Commission further finds that the personal injury suffered by Reddicliffe did not arise out of or in the course of employment and accordingly his employment was not a significant contributing factor to his injury. [147] Therefore the Appeal is upheld and the decision of the Q-COMP Review Unit dated 5 April 2012 is set aside with the Application for Compensation (dated 29 August 2011) by Reddicliffe being not one for acceptance. [148] The matter of costs is reserved. [149] I order accordingly. J.M. Thompson, Industrial Commissioner. Hearing Details: 2013 2 and 3 April 29 May (Q-COMP's submissions) 25 June (Appellant's submissions) 13 August Released: 13 August 2013 Appearances: Mr P. Rashleigh of Counsel, instructed by Gillis Delaney Lawyers for the Appellant. Mr J. Merrell of Counsel, instructed by Q-COMP. -- 14 of 14 --