Davidson v Q-COMP [2013] QIRC 81

CITATION: Steven Frederick Davidson AND Q-COMP (WC/2012/160) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to Commission Steven Frederick Davidson AND Q-COMP (WC/2012/160) DEPUTY PRESIDENT O'CONNOR 31 May 2013 Appeal - Decision of Review Unit, Q-COMP - Plumber - Lower back injury - Evidence - Witnesses - Medical evidence - Appellant bears onus of proof on the balance of probabilities to show injury falls within s. 32(1) of the Act - Finding - that injury sustained by the Appellant on 9 December 2010 and the subsequent disc prolapse at L4/5 were not causally linked - Disc prolapse at L4/5 - Determined injuries did not arise out of or in the course of employment and employment was not a significant contributing factor - Appeal dismissed. DECISION [1] This is an appeal by Mr Steven Frederick Davidson (the Appellant) against a decision of the Review Unit of Q- COMP (the Respondent) dated 30 March 2012. That Q-COMP decision confirmed an earlier decision of WorkCover Queensland (WorkCover) not to accept the Appellant's claim for compensation, contending that he did not sustain an injury within the meaning of that term in s. 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act). Brief History of the Claim [2] The Appellant was employed by Tacoma Plumbing North Queensland Pty Ltd as a plumber. [3] The Appellant lodged an Application for Compensation with WorkCover dated 13 December 2010 (Exhibit 1) for an injury described as "Ankle, Other fractures not elsewhere classified" which was said to have been sustained as a result of fall from a trestle at a construction site at Mooroobool. [4] WorkCover issued a Statement of Reasons for Decision dated 19 December 2011 (Exhibit 1) rejecting the Appellant's claim for compensation. [5] The Appellant lodged an Application for Claim Review with Q-COMP dated 15 March 2012 (Exhibit 1). [6] Q-COMP provided its Reasons for Decision dated 30 March 2012 (Exhibit 1) which confirmed the WorkCover decision and indicated that the Appellant did not sustain an "injury" within the meaning of that term in s. 32 of the Act. It is against this Q-COMP decision that the Appellant appeals. Issues for Determination [7] The key issues for determination in this appeal are as follows: (a) whether the Appellant was a worker within the meaning of that term in s. 11 of the Act; (b) whether the Appellant suffered a disc protrusion at the L4/5, and whether this was an injury within the meaning of that term in s. 32 of the Act; and (c) whether the alleged injury sustained by the Appellant and the subsequent acute back pain was causally linked to the work accident on 9 December 2010 in which the Appellant suffered an open fracture dislocation of his right ankle. [8] Section 32 of the Act relevantly provides as follows: "32 Meaning of injury (1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury." -- 1 of 6 -- 2 [9] It is not in dispute in these proceedings that the Appellant suffered an open fracture dislocation of his right ankle as a consequence of a fall from a trestle on 9 December 2010. [10] The injury was accepted as a compensable injury by WorkCover. [11] The Respondent conceded that, at the relevant time, the Appellant was a worker. Onus of Proof [12] The Appellant carries the burden of proof on the balance of probabilities.1 The Appellant must prove, on the balance of probabilities, that the claim is one for acceptance. Nature of Hearing [13] The appeal to the Commission is by way of a hearing de novo. The Evidence [14] The evidence in this matter was short in compass. [15] The Appellant gave evidence that he worked at Tacoma Plumbing North Queensland Pty Ltd as a plumber. His duties included, amongst other things, digging holes and trenches, and roofing, repairing and replacing guttering and burst water pipes. [16] On 9 December 2010 the Appellant was engaged in some roofing work at a residence. He was working from a scaffold which was approximately 2.5 metres above the ground. Just prior to the accident, he was using tin snips to cut a piece of facia. He recollects that as her turned around, he felt the trestle move slightly and he lost his balance. In an attempt to avoid falling sideways onto the fence, he twisted his body towards the building. The Appellant landed on his feet on a steeply angled slope. He experienced severe pain in his right ankle radiating up the bottom part of his leg. [17] As a consequence of the fall on 9 December 2010, he sustained a compound fracture dislocation of the right ankle and was transported by Ambulance to the Cairns Base Hospital where he underwent surgical intervention. Post operatively, he was immobilised for a period of about four months. He wore a heavy "moon boot" and relied on crutches to move around the house. [18] After four months he commenced physiotherapy. He was fitted with a light weight "moon boot" for a period extending to October or November 2011. [19] The Appellant gave evidence that, on 28 September 2011, he rode his bicycle down to a shopping centre with his children who were on school holidays. When he got to the shopping centre, he did not experience any lower back pain. [20] The Appellant recalls that he was standing in the shopping centre watching some school holiday entertainment when he suddenly experienced the onset of back pain. His back pain began to worsen and he went and sat on a plastic café chair to try and relieve the pain. He recalled walking back to his bicycle and riding the kilometre and a –half back to his home. When he reached home around lunchtime, he laid down on the lounge for the remainder of the day. [21] On the morning of 29 September 2011, the Appellant woke with back pain. The Appellant said that, after getting out of bed, he managed to reach the lounge room before the pain became so intense that he was transferred by ambulance to Cairns Base Hospital for treatment. [22] He was diagnosed with a large left posterior L4-5 disc protrusion, extending inferiorly and compressing the left L5 nerve root within the spinal canal. [23] It was the Appellant's evidence that apart from some minor complaints of lower back pain in the lead-up to the incident in the shopping centre the Appellant was essentially free of lower back pain and left leg sciatic pain. [24] It was accepted by the Appellant in cross-examination that he had on at least six occasions between 2006 and 2010 attended at the Cairns Central Medical Centre, In Form Chiropractic and Physio Health for treatments. 1 See Eric Martin Rossmuller AND Q-COMP (C/2009/36) - Decision <http://www.qirc.qld.gov.au> at [2]. -- 2 of 6 -- 3 Medical Evidence [25] The Appellant called Dr Gayle Curtis, Orthopaedic Surgeon and his three reports were admitted into evidence. [26] Dr Curtis expressed the view that the L4/5 disc was in good condition at the time of the fall from the trestle in December 2010 and the ultimate disc protrusion took longer than if it had of been in a degenerative state prior to the fall. [27] Dr Curtis stated: "There's been a whole cascade of events that have occurred, in retrospect, to bring about the extrusion that Dr McPhee talks about. It's sequestrated; there's a bit that's come out and it's sitting there free, sort of. Whatever's brought this about, we seem to think normally that there's been a violent episode that's done that on a background of degeneration, but with this fellow if - if you look at his history, there was only one violent event. He fell 2 metres off a plank. He had a bit of backache before but what 47 year old doesn't have backache, but they came to nothing much. He didn't have any downtime from work. He went to a chiropractor, I didn't make much of that in his prehistory. The events that gave rise to the sequestration was almost nothing. He was sitting looking at a magician at a shopping centre, so I presume that this was quite spontaneous. It was the end result of something that commenced in terms of causation analysis, nine months before, where he had a significant injury, dislocating his ankle, fracturing it. He also shore off the blood supply to the talus and it went dead. So, whatever the forces went through his ankle, it's biologically very plausible that the same very forces went through down the spine and on this event, it didn't fracture the bone, but I suspect it set off a lot of events within this L4/5 disc, giving rise to this painful difference in nine months between injury and the onset of symptoms. I'm very comfortable with this. It's biologically plausible. We've always accepted that those events from the ankle occurred 12 months, 18 months after the event. But as far as I'm concerned, the very same forces have produced a similar change in his L4/5 disc."2 [28] In his evidence before the Commission, Dr Curtis maintained the firm view that it was "biologically very plausible" that the torsional forces created by the fall caused a progressive annular tear and the eventual disc protrusion some nine months later. [29] In the report of Dr Curtis dated 4 July 2012 (Exhibit 9) he opined: "… prolonged sitting loads the lumbar spine excessively and even at nine months following the event of his injury and given that the remainder of this man's lumbar spine is pristine, the large prolapse at L4/5 is likely, indeed a probability greater tan 51%, to be traumatic in origin." [30] He notes in his report of 26 Match 2012 that in the absence of any signal changes or degenerative facetal changes it is suggestive of the possibility of a traumatic basis for the Appellant's prolapsed disc. [31] In cross-examination Dr Curtis did not agree that there were any major degenerative changes other than those at L4/5. Counsel for the Respondent put the following to Dr Curtis: "But the lumbar spine is not pristine, is it?-- Well, for a man of 37 it is, yes." [32] The evidence before the Commission is that the Appellant was 47 years of age when he had the MRI and 49 when he presented at Dr Curtis' rooms. [33] The evidence of Dr Curtis that the Appellant had a "pristine" lumbar spine did not accord with the evidence of Professor McPhee or Dr Todd. [34] The report of the MRI scans taken on 21 October 2011 was, in the opinion of Professor McPhee, incorrect. In his opinion, the scans revealed changes in the L3/4, L4/5 and the L5/S1 intervertebral discs with a slight narrowing of the L3/4 intervertebral space. In his opinion, the changes were consistent with degeneration in the three discs. [35] Dr Todd's opinion that the MRI scan taken on 21 October 2011 shows degenerative changes and disc desiccation accords with the evidence of Professor McPhee. Dr Todd went on to conclude that: "The MRI scan performed 21/10/2011 shows degenerative changes and disc desiccation in the L3/4, L4/5, L5/S1 discs. There are also earlier thoracolumbar degenerative changes. There's a large left sided L4/5 prolapse compressing the adjacent nerve root and spinal cord."3 2 T 1-49 3 T 2-5 Ll 46-48 -- 3 of 6 -- 4 [36] Dr Todd gave evidence that significant degenerative change could occur in the L 4/5 disc in the time between the initial fall from the trestle and the onset of lower back and left leg pain at the Shopping Centre in September 2011. However, he expressed the view that for such a scenario to be correct then he would have expected a report of back pain. [37] In cross-examination, Dr Todd accepted that it was possible, but not probable, that the Appellant could have a weakening of the L 4/5 disc without pain accompanying that process. Dr Todd was of the view that the disc was degenerate and it was prone to prolapse. But, in the absence of pain, it is difficult to correlate significant further damage to that disc prior to his prolapsing on the 28th of September. [38] Counsel for the Respondent put to Professor McPhee the following question: "If I was to suggest to you that there were a number of presentations, at least six in the period between 2006 and 2010 of episodes of low back pain of the appellant prior to the disc extrusion, each one of them requiring physio and/or chiropractic treatment, but not requiring any significant time off work, would that add anything to the history in relation to the appellant? [39] Professor McPhee responded: "It just confirms what you see on the - on the scans, that most back pain is related to degeneration somewhere in the back and, you know, the fact is that the degeneration that you see on the MRI scans is not something that's appeared in the short term. That's a long term change and that would fit with symptoms going back a number of years."4 [40] In the report of Professor McPhee dated 12 October 2012 (Exhibit ?) he expressed the opinion: "The MRI understates the extent of the degeneration. There is degeneration at L3/4 and L5/S1. The overwhelming pathology is a disc extrusion at L4/5 which is concordant with the claimant's symptoms. There was no history of sciatica prior to September 2011. It is improbable that Mr Davidson would not have had sciatic symptoms from the workplace injury in December 2010 and had the disc extrusion been present. The symptoms came on in September 2011. This has occurred either spontaneously or as a result of some minor everyday action. The force required to cause extrusion is inversely proportional to the extent of the pre-existing denegation." [41] In oral evidence, Professor McPhee expressed the opinion that it would be "… drawing a very, very, very long bow"5 to reach a conclusion that the injury in December 2010 resulted in the eventual outcome of the extrusion of the disc in September 2011. [42] In cross-examination, Professor McPhee expressed a contrary view when he suggested that the fall may have been a significant factor in the extrusion of the disc. In response to the following question from Counsel for the Appellant, Professor McPhee stated: "More likely than not; just 51 per cent, 50.00, that's good enough-----?-- Yeah. Do I believe the fall contributed to that extent? The answer is no. Do I believe it's significant under that extent, if we're looking at the - what do you call it, the industrial interpretation of what is significant, then, yes, it is - it is significant in that sense; it's not trivial." [43] In re-examination, Counsel for the Respondent attempted to clarify the apparent conflicting evidence given by Professor McPhee by putting the following question to him: "Professor McPhee, you said earlier in your evidence to me - earlier in your evidence, regardless of who it was to, that it was drawing a long bow to say there was a causal connection, for want of a better word, between the fall in December 2010 and the disc extrusion in September 2011. You have now said that you agree that the fall from the scaffold was a significant contributing factor to the extrusion of the disc in September 2011. Can you explain the - or reconcile those two views?-- There is no way that the disc extrusion is directly related to the fall. Historically, it just does not fit. So, you come back and you - you then say, "Well, had the injury in any way, shape or form produced some alteration of that disc or some significance, even though on the - on the full scale of what ultimately occurred, it might be proportionately of a lesser nature. The answer is, I can't exclude that it wasn't and----- 4 T 2-34 Ll 9-14 5 T 2-35 -- 4 of 6 -- 5 So-----?-- -----you know----- Sorry?-- -----it's certainly a major incident that would have put strain on the back. So, your evidence is that you can't exclude it?-- I can't exclude it, no." [44] In the Respondent's submissions, it is argued that Professor McPhee became confused as between the giving of expert medical evidence and questions of law which were properly matters for the Commission to decide. [45] Professor McPhee accepted, as a theoretical possibility, that the fall from the scaffold which ruptured the Appellant's talar bone could possibly have transmitted very significant forces through his L4/5 disc segment. In his evidence, he stated: I don't know what evidence there is that he had a change at the time of the fall. 6 [46] In considering the evidence of Professor McPhee, I am of the view that whilst he thought that it was conceivable that there was a nexus between the fall and the disc protrusion, there was not, in his expert medical opinion a direct casual link between the disc protrusion and the fall. In other words, it was possible but not probable. Conclusions [47] The Appellant bears the onus of establishing, on the balance of probabilities, that the L4/5 disc protrusion was casually related to the injury which occurred on 9 December 2010. [48] In my view, the medical evidence is not sufficient to support a finding that the fall from the scaffolding on 9 December 2010 can be casually linked to the Appellant's disc protrusion at L4/5 in September 2011. [49] At the highest, the medical evidence is that it was a "theoretical possibility" or "conceivable" that the insult of falling from the scaffolding contributed to the disc prolapse, but it is not probable. [50] In Fernandez v Tubemakers of Australia Ltd (1975) 2 NSWLR 190 Mahoney JA of the New South Wales Court of Appeal wrote: "The question remains whether, accepting that the trauma was a possible cause of the condition, it was open to the jury to infer that it was the actual cause of it. If the condition appeared the day after the occurrence of the possible cause, then it would normally be open to conclude that the possible was the actual cause 'The state of medical skill may be such that it can be said by an expert that, if the condition occurs after such and such a period, then the possible cause is to be excluded as the actual cause. But there this cannot be done, then, if a possible cause occurs sufficiently closely related to the condition, the jury may draw the inference of causal connection.' Medical science may say in individual cases that there is no possible connection between the events and the death, in which case the judge cannot act as if there were a connection. But if medical science is prepared to say that is a possible view, then the judge after examining the lay evidence may decide that it is probable. It may be the case that medical science will find a possibility not good enough on which to base a scientific deduction, but Courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try." [51] Both Dr Todd and Professor McPhee accept that somebody with a degenerate disc has an increased chance of suffering a prolapse or an extrusion just from performing everyday activities. [52] I further accept the evidence of Dr Todd and Professor McPhee that the process of disk protrusion and extrusion is a process of degeneration which can be caused by constitutional or genetic factors. [53] I prefer the evidence of Dr Todd and Professor McPhee over that of Dr Curtis. The evidence of Dr Curtis was contradictory and, at times, difficult to reconcile. In this regard, I accept the submission of Counsel for the Respondent that the evidence of Dr Curtis falls short of a coherent, consistent and independent expert evidence of an orthopaedic surgeon with current expertise in spinal surgery. [54] I accept the evidence of Dr Todd that he did not consider it likely that the disc prolapse was sustained in the accident of 9 December 2010. [55] I accept the evidence that the MRI scans reveal degenerative changes and disc desiccation in the L3/4, L4/5, L5/S1 discs and also earlier thoracolumbar degenerative changes. 6 T2-46 Ll 16-17 -- 5 of 6 -- 6 [56] I do not accept that the injury sustained by the Appellant on 9 December 2010 and the subsequent disc prolapse at L4/5 were causally linked. [57] In Newberry v Suncorp Metway Insurance Ltd (2006) QCA 48 (per Keane JA with whom de Jersey CJ and Muir J agreed) wrote: "Further, there is no warrant in the language of s32 of the WCRA for reading the words 'if the employment is a Significant contributing factor to the injury' as lessening the stringency of the requirement that the injury 'arise out of the employment', as was suggested in the course of argument on the appeal. It is clear, as a matter of language, that the words 'if the employment is a significant contributing factor to the injury' are intended to be a requirement of connection between employment and injury additional to each of the requirements that the injury occur in the course of employment or arising out of the employment. It cannot, in my respectful opinion, sensibly be read as lessening the stringency of the latter or increasing the stringency of the former." [58] The evidence does not support a conclusion by the Commission that the back injury arose out of or in the course of employment and employment was a significant contributing. [59] On the consideration of the totality of the evidence before the Commission, I am not satisfied that the Appellant has established that he has suffered an injury within the meaning of s. 32 of the Act. [60] The Appellant has not discharged the onus in proving, on the balance of probabilities, that the decision of the Respondent should be rejected, and the Appellant's claim should be one for acceptance by the Commission. [61] Accordingly, I make the following orders: 1. That the appeal be dismissed; 2. That the decision of the Q-COMP Review Unit dated 2 July 2012 be confirmed; and 3. That the Appellant 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. D. L. O'CONNOR, Deputy President. Hearing Details: 10 & 11 December 2012 Released: 31 May 2013 Appearances: Mr D.G.H. Turnbull of Counsel, instructed by Dean & Bolton Solicitors for the Appellant. Dr M Callaghan of Counsel, directly instructed by THE RESPONDENT. -- 6 of 6 --