Farrell v Q-COMP [2013] QIRC 19

CITATION: Shane Joseph Farrell AND Q-COMP (WC/2011/234) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission Shane Joseph Farrell AND Q-COMP (WC/2011/234) DEPUTY PRESIDENT O'CONNOR 13 February 2013 Appeal - Decision of Review Unit, Q-COMP - CT Press operator - Reactive Airways Respiratory Syndrome - Employer granted leave to appear and be heard - Exposure to toxic fumes - Formaldehyde - Xiameter - Whether injury arose out of, or in the course of, employment or employment was a significant contributing factor - Appeal dismissed. DECISION [1] This is an appeal by Shane Joseph Farrell (the Appellant) against a decision of the Review Unit of Q-COMP (Q- COMP) dated 24 June 2011. 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). At the relevant time the Appellant was employed by Bandag Manufacturing Pty Ltd (Bandag). [2] Pursuant to s. 320 of the Industrial Relations Act 1999, Bandag was granted leave to be heard at the hearing of the appeal. Brief History of the Claim [3] The Appellant was employed by Bandag as a CT Press operator, manufacturing re-tread tyres for trucks and heavy machinery at its Wacol factory. [4] The Appellant lodged an Application for Compensation with WorkCover dated 12 May 2010 (Exhibit 1) claiming he was suffering from Toxic Fume Inhalation Syndrome said to have been sustained over a period of time whilst employed as a CT Press operator. [5] It is the Appellant's claim that during 2008 to mid 2010 he developed Reactive Airways Dysfunction Syndrome (RADS) as a consequence of ongoing exposure to toxic fumes, in particular, formaldehyde produced during the re-tread tyre manufacturing process. The operation of the CT Press involves manually spraying tyre mounds with an emulsion of water and Xiameter in order to release the rubber from the moulds at temperatures ranging from 185 to 190 degrees. [6] WorkCover issued a Statement of Reasons for Decision dated 26 July 2010 (Exhibit 1) rejecting the Appellant's claim for compensation. The Appellant then lodged an Application for Claim Review with Q-COMP dated 22 October 2010 (Exhibit 1). Q-COMP provided its Reasons for Decision dated 24 June 2011 (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. Issue for Determination [7] The issue for determination in this appeal is whether the Appellant suffered a personal "injury", namely an injury to his respiratory system, within the meaning of that term in s. 32 of the Act. 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." [8] Q-COMP conceded that, at the relevant time, the Appellant was a worker. -- 1 of 8 -- 2 Onus of Proof [9] The Appellant carries the burden of proof on the balance of probabilities: see Rossmuller v Q-COMP1. The Appellant must prove, on the balance of probabilities, that the claim is one for acceptance. In that regard, the Appellant must prove that: • he suffered an injury, being Reactive Airway Dysfunction Syndrome (RADS); • the injury arose out of, or in the course of, his employment with Bandag; and • the Appellant's employment with Bandag was a significant contributing factor to the injury. The Evidence [10] The Appellant gave evidence that he commenced work at Bandag in 2008 initially on the buff line and, after a short period of time, became a CT Press operator. [11] The CT Press is a system of eight moulds which presses, cures and cooks synthetic rubber to make tyre retreads. The Appellant's duties as a CT Press operator involved, amongst other things, the mixing and application by means of a hand held spray of a chemical called Xiameter to the moulds at temperatures between 185 and 190 degrees. The temperature was measured by means of a gauge at the operator's computer console. If the temperature varies too high or too low an alarm is raised. The computer also controlled and timed the curing process. [12] The purpose of applying the mixture of water and Xiameter to the moulds by the CT Operator was to ensure that the cured rubber could be released after the cooking process. The application process was repeated approximately three times per day and the process produced fumes, smoke, mist and vapours which were released around the CT Press. Mr Farrell suggested in evidence that the ceiling and ventilation system had been replaced but acknowledged in cross-examination that the ventilation system above the platens appeared to be the same. [13] Mr Farrell suffered from tuberculosis and asthma as a child. But in adult life he had no reoccurring symptoms and played grade rugby league until the age of approximately 34 years. [14] Mr Farrell complained about the working conditions - in particular, fumes, vapour and heat produced by the CT Press - to Mr Wayne Mills, the district organiser for the Australian Workers Union of Employees, Queensland. Mr Mills gave evidence that he met with Mr John Van Dongen, the manager of Bandag, to raise the complaint with management. Mr Mills stated that the union did not conduct any testing but adopted the approach that issues involving these types of complaints should be raised with the relevant division of Workplace Health and Safety. Subsequently, Mr Mills referred the matter to the Mt Gravatt depot of the office of Workplace Health and Safety for investigation. [15] Dr Kamal Ruban Ratnam gave evidence that he was Mr Farrell's general practitioner and had been so since February 2009. Dr Ratnam stated that Mr Farrell presented at his surgery on 19 April 2010 with a rash, watery eyes and dyspnoea (breathlessness). In his written report dated 17 August 2010 (Exhibit 11) Dr Ratnam diagnosed Mr Farrell as suffering from RADS. [16] Dr Ratnam referred Mr Farrell to Dr John Harrison, a consultant ophthalmologist, and Dr Harrum, dermatologist. However, no medical evidence was led by the Appellant as to the cause of the rash or the watery eyes, nor was it the subject of any claim to WorkCover Queensland. [17] Mr Farrell was referred by Dr Ratnam to Dr Maurice Heiner, a thoracic consultant and sleep physician. In the report of Dr Heiner dated 9 July 2010 (exhibit 16) it is stated: "… I have no doubt that this gentleman has a reactive airway dysfunction syndrome secondary to the chemical exposure and fume exposure which is ongoing at the workplace." [18] Dr Heiner diagnosed Mr Farrell as having reactive airways which has progressed to asthmatic airways. In evidence, Dr Heiner expressed the opinion that: "I think he fits the modern definition of RADS, and that is that some people, when they're left the workplace, they have ongoing respiratory symptoms just like asthma. I think that his RADS has now gone on and he's developed symptoms of ongoing hyper-reactive airways." [Transcript p. 2-7] 1 Eric Martin Rossmuller AND Q-COMP (C/2009/36) - Decision <http://www.qirc.qld.govau> at para [2]. -- 2 of 8 -- 3 [19] The evidence of Dr Heiner suggests a reliance on small airways testing in preference to a more conventional reliance on large airways testing results evident in the spirometry tests. In cross examination, Counsel for Q- COMP suggested to Dr Heiner that the small airways function is a very "noisy measurement" with the consequence that the error level can be high. Dr Heiner responded: "In modern day spirometers, the error level is not so high and as long as people who are interpreting it look at the curve, they can be reasonably sure that it is an accurate measure."[ Transcript p. 2-10] [20] By contrast, the evidence of Dr Ian Brown, a respiratory and sleep physician, was that: "… the diagnosis of asthma and RADS is generally based on changes in the large airway, the FEV1 and the FEV2 per cent. They are the most reliable, and they are the most validated in terms of comparisons with predicted values and reproduced ability with time and repeated efforts. [Transcript p. 3-4] [21] When asked about the reliability of small airways testing, Dr Brown replied: "… it's a noisier measurement, so the standard deviation, or the physical variation from patient to patient, within patient and the testing is a lot higher, so it just makes it a less reliable test, but when it's severely affected, it is a good marker of airways function." [Transcript p. 3-5] [22] In resolving the conflict in the medical evidence2, I find the evidence of Dr Brown to be the more persuasive. In coming to that conclusion, I have noted the evidence of Dr Ratnam that he did not record in his clinical notes any complaint by Mr Farrell of a cough or wheeze; the spirometry tests taken on 8 October 2010 and 2 June 2010 did not reveal any significant difference in the large airways testing; the lung function testing undertaken by Dr Heiner and Dr Brown returned a normal result; and the histamine challenge test performed by Dr Heiner on 9 June 2010 did not reveal a fall in lung function nor did it reveal a hyper-reactive airway. [23] Dr Brown further expressed the opinion that whilst the testing on 2 June 2010 revealed lung function within the normal range, the results were in the lower end of the normal range. This was, in Dr Brown's view, a consequence of fitness levels. Dr Brown stated: "The lower range of normal malfunction there, I felt, was somewhat to do with body habitus, because increased weight gain and pressure on the diaphragm does tend to reduce the lung quality proportionately, which is what's being seen there, rather than a disproportionate reduction in the amount that comes out in the first second compared to the total amount." [Transcript p. 3-6] [24] The factors which have been identified in paragraphs [22] and [23] support, in my view, the opinion of Dr Brown and militate against a conclusion that Mr Farrell suffered from work-related RADS. [25] In a telling piece of evidence, Dr Brown stated: "With an occupationally induced asthma or lung disease or reactive airways dysfunction syndrome, even a low dose RADS, you'd expect the symptoms to be maximal with exposure and to gradually improve away from the workplace and where there is sensitisation there can occasionally be worse symptoms overnight and improvement over the weekend and then worsening again with re-exposure in the workplace on the Monday or whenever the shift starts, but in general you would expect the symptoms and the abnormal lung function to be at its peak with continuing exposure and then to improve subsequently with withdrawal, time off, holidays and away from the workplace." [Transcript p. 3-9] [26] In further determining the conflict in the medical evidence, Counsel for the First Respondent submitted that I should take into consideration Dr Heiner's demeanour as a witness and his lack of objectivity in giving his evidence. In that regard, Counsel referred me to a number of authorities to support that submission. In particular, Griffith v Cockatoo Docklands Pty Limited3, Agius v Amaca and Anor4, and Muller v Queensland Electricity Commission5. [27] I accept Counsel for the First Respondent's submission, which is supported by my own impressions, that of the two medical specialists called to give evidence in this matter, Dr Brown gave the more considered, measured and dispassionate evidence. 2 See: Q-Comp v Donald Ungerer (C/2012/13) - Decision <http://www.qirc.qld.govau>. 3 Griffith v Cockatoo Docklands Pty Limited [2004] NSWDT 24 at para 22. 4 Agius v Amaca and Anor [2007] NSWDT 13 at para 15. 5 Muller v Queensland Electricity Commission [2000] QCA 212 per Pincas JA at para 5 and Helman J at para 52. -- 3 of 8 -- 4 [28] The management of Bandag ordered that preliminary testing for formaldehyde be undertaken. [29] Formaldehyde testing (exhibit 26) was conducted by Mr Alan Dyer, an employee of the Intervener, using a "Gastec" test kit. In Mr Dyer's statement (exhibit 34) dated 25 October 2012, which was tendered by consent, he states: "From my understanding of the readings, there was a concern that there could have been something there. Whether it was formaldehyde or not I'm not sure but from the reading it looked like there could be something there and I recall that's why the decision was made to get further testing done by an outside contractor – the NSCA (although the decisions was not mine)." [30] Mr Dyer explained in his statement that he had never used a "Gastec" test kit before; he could not recall what type of test tube he used for each test; it was possible that he used a combination of both test kits (91 Gastec Test Tube and 91L Gastec Test Tube); and he was never given any instruction in the use of the test kits. Further, it is apparent on the evidence that Mr Dyer did not store the test kits as recommended in the Gastec No. 91 Instructions for formaldehyde Detector Tube (exhibit 28). [31] Mr Dyer further states: "When I wrote down the readings from the test, I did so from the readings as best I could see them in the test tubes. I didn't correct the results for temperature, humidity or pressure. I didn't know I had to do that. I just wrote down the reading from the tube itself in each case." [32] The report of Alan Rogers dated 14 November 2012 (exhibit 33) deals with the methodology adopted by Mr Dyer in undertaking the Gastec tests. Mr Rogers states: "Prior to, during or after the tests, Mr Dyer did not record his exact method of use of the tubes when he conducted the air sampling exercise. He recorded the location at which the sample was taken but he did not record the time when the sample was taken or what the workers were doing at the time of sampling or how close the workers were to the point of sampling. He failed to record the tube type (91 or 91L) and in test numbers 12-15 he failed to record the number of pump strokes which in itself would have a considerable effect on the end result. He failed to adjust for temperature and atmospheric pressure. As such the values he obtained are of limited use in determining potential exposure and the degree of compliance." [33] Mr Rogers further concludes at page 5 of his report dated 14 November 2011 that the length of a chemical stain observed in the test tube post air sampling is not specific to formaldehyde and does not necessarily indicate the presence of formaldehyde. He notes: "The issue of 'false positives' in the detector tube sampling conducted by Mr Dyer is confirmed in subsequent testing of the process using more specific and comprehensive analytical sampling methods (such as 2,4 DNP derivatives) which are not subject to such interferences." [34] I am of the view that the testing methodology adopted by Mr Dyer in using the "Gastec" test kits to test for the presence of formaldehyde in the workplace was so fundamentally flawed as to render any results obtained by that means as unreliable. [35] As a consequence of the "Gastec" testing undertaken by Mr Dyer, the Intervener took steps, which one might expect of a prudent employer, and issued protective clothing. [36] An occupational hygiene survey was performed by the National Safety Council of Australia (NSCA) at Bandag's Carol Park premises on 20 to 21 May 2010 at the request of Mr Van Dongen of Bandag. [37] The NSCA results of testing during the day shift on 20 May 2010 recorded a concentration for Mr Farrell at 0.006 mg/m3 or 0.0052ppm. 6 [38] In Part 5, the Discussion and Recommendation section of the reports (exhibits 2 and 3) it was stated: "Recorded concentrations of formaldehyde and VCO's were well below nominated exposure standards for all monitored workers. At recorded levels no adverse health effects would be expected associated with exposure to formaldehyde for the majority of the working population." [39] Mr Gordon Stewart, an environmental engineer called by the Appellant, provided reports dated 11 March 2012 (exhibit 17), 9 October 2012 (exhibit 18) and 21 October 2012 (exhibit 19). 6 NSCA Report 28 June 2010 Part 4 at page 4 (exhibits 2 and 3). -- 4 of 8 -- 5 [40] Mr Stewart did not undertake any independent testing for formaldehyde at the Bandag premises and agreed in cross examination that he relied on the results of the testing undertaken by Mr Dyer to formulate his opinion. [41] In cross-examination by Counsel for the Intervener, Mr Stewart accepted the validity of the statement contained in the Priority Existing Chemical Assessment Report No. 28 of the National Chemicals Notification and Assessment Scheme (NICNAS) (exhibit 21) that "The lowest-observed-effect level (LOEL) for sensory irritation in humans is 0.5ppm." Further, Mr Stewart acknowledged that, having seen Mr Rogers' reports, the NSCA report, and the Adopted National Exposure Standards for Atmospheric Contaminants in the Occupational Environment (exhibit 29) there was nothing, with the exception of Mr Dyer's test results (exhibit 26), which approached or exceeded the NICNAS level of .5ppm or the recommendation of NICNAS that the new standard be .3ppm (Time Weighted Average). [42] Mr Rogers undertook testing at Bandag on 29 and 30 March 2012. In summary, his conclusion as contained in his written report (see: Appendix A1 exhibit 32) reveals that the testing undertaken by him, using the best analytical methods, could not detect any significant level of formaldehyde in the breathing zone of an operator of the CT Press. [43] In light of the evidence of Mr Farrell that the ventilation system had been replaced, Counsel for the Appellant put the following to Mr Rogers: "And if the ventilation system was a different system, are you likely to get a different result?" [44] Mr Rogers responded: "No, because the tests show, on the 29th of March when the ventilation was on and on the 30th of March when all the ventilation systems were off, no difference in the results. So ventilation isn't - does not effect the results because there's nothing there to measure in the first place. … If there was any contaminant released from the product, then it would be captured in a reasonable manner by the ventilation system and, in fact, I've mentioned that in part of my report. I think it's about 90 per cent efficient in removing any contaminants coming off the process. … All I can say is that without any ventilation system at all, you've got essentially zero or less that 0.004 parts per million and with a good ventilation system as I measured, you got the same results .004 parts per million. So you can add or subtract any type of ventilation system you like. It will not make any difference to the results that were obtained on Friday the 30th of March when there was no ventilation system… ."[Transcript pp. 3-24 to 3-25] [45] Whilst noting the cautionary warning contained in the Material Safety Data Sheets (exhibit 23) that Xiameter heated above 150 degrees may cause the release of formaldehyde, I accept Filsinger's conclusion (exhibit 27) which showed formaldehyde evolution rates near 200 degrees centigrade. [46] Having regard to the evidence, I cannot accept the submission of Counsel for the Appellant that "…temperatures of 185 to 190 degrees, are in fact temperatures 'beginning near 200 degrees' and there is no inconsistency with the proposition that formaldehyde was formed during the operation of the CT Press and Filsinger's conclusion." [47] When Counsel for the Appellant put the above submission to Mr Rogers the following exchange took place: "MR ROCHE: So, is it correct to say that your understanding of Filsinger's article is that the temperatures would need to be higher than the 180 to the 190 degrees centigrade?-- Well, according to Filsinger's report this - this material does not break down until it gets to around about 227 degrees centigrade. Would you consider the temperatures of 180 to 190 to be near 200?-- As a scientist, no. Well, when you're dealing with a carcinogenic material such as formaldehyde would you consider it to be near 200 degrees?--No" [Transcript p. 3-20] [48] I accept that on the evidence before me, in particular, the results of the testing undertaken by Mr Rogers on 29 and 30 March 2012 that, at most, .004 parts per million formaldehyde was present in the breathing zone of the worker. -- 5 of 8 -- 6 Jones v Dunkell Inference [49] Counsel for the Appellant submitted that the Commission should draw a Jones v Dunkell7 inference in relation to "…the Intervener's unexplained failure to give evidence, to call witnesses, or to tender documents or produce particular material to an expert witness." [50] Counsel for the Appellant submitted that the Commission was entitled to draw an inference that the uncalled evidence would not have assisted the Intervener's case. It was submitted that "… by failing to produce related documents including the results of the internal testing to any of the expert witnesses, failing to put into evidence the original NSCA report and failing to call the author of the report and or the manager, Mr Van Dongen, the Intervener has failed to put before its experts and the Commission evidence obviously detrimental to its own case." [51] The principle in Jones v Dunkell at its most fundamental is usually understood as an inference that can arise against a party who elects not to adduce evidence on a matter in issue. [52] Windeyer J, at 320 to 321, embraced the notion of "fear of exposure" on the part of the party who fails to call the witness, quoting Wigmore on Evidence: "The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstances or document or witness, if brought, would have exposed facts unfavourable to the party." [53] In Manly Council v Byrne & Anor,8 Campbell J cited the joint judgment of Gibbs A-CJ, Stephen, Mason and Aickin JJ in the High Court's decision in Brandi v Mingot9 to support the proposition that: "Insofar as the passage from Wigmore approved the drawing of an inference that a witness if called would have exposed facts unfavourable to the party who failed to call that witness, it is not the law in Australia . . . [L]ater cases confirm that the fullest extent of the inference which can be drawn is that the evidence which was not called would not have helped the party who failed to call the witness" and at paragraph 51: "Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn." [54] Whilst the authorities clearly support, in appropriate cases, the drawing of an adverse inference, this case is not one of them. [55] The submission by Counsel for the Appellant is, in my view, misconceived. Counsel for the Appellant has urged that I should draw an adverse inference in reliance on the principal in Jones v Dunkell notwithstanding that the report of the NSCA, the subject of the submission, was tendered into evidence by consent. The submission cannot be sustained and must accordingly fail. Disclosure [56] Counsel for the Appellant submitted that the Intervener had failed in its obligation of disclosure as required by the order of the Commission of 22 May 2012. [57] It was further submitted that the Intervener had failed to disclose documentation which revealed that, at the request of the manager of Bandag, Mr Van Dongen, the NSCA amended its original report (exhibit 2) to exclude reference to formaldehyde being a known sensitiser which may cause acute respiratory symptoms at exposure levels below the Australian Standards. [58] Counsel for the Appellant specifically objected to the removal of the following reference in the Discussion and Recommendation section of the NSCA report: "However, formaldehyde is listed in the Exposure Standards for Atmospheric Contaminants in the Occupational Environment NOHSC 3008 (1995) 3 rd Edition as a known respiratory sensitiser, and acute 7 Jones v Dunkell [1959] 101 CLR 298. 8 Manly Council v Byrne & Anor [2004] NSWCA 123. 9 Brandi v Mingot (1976) 12 ALR 551 at pages 559-560. -- 6 of 8 -- 7 reactive symptoms may sometimes be observed for sensitised individuals in concentrations well below the 0.84 mg/m3 Adjusted 10 Hour TWA and 2.5-mg/m3 STEL Australian Exposure Standard." [59] Notwithstanding the Appellant's submission that 'the Australian standards clearly indicate that for sensitized individuals, exposure standards for Formaldehyde have little relevance as those individuals may suffer acute reactive respiratory symptoms from levels well below the standards', the Appellant led no evidence before the Commission that Mr Farrell was sensitised to formaldehyde and would therefore be more susceptible to concentrations below the Australian Exposure Standard. [60] In argument, it was conceded by Counsel for the Appellant that the key findings contained in both NSCA reports were the same. [61] It would not be correct to characterise the NSCA reports (exhibit 2 and 3) as being adverse to the Intervener. The reports clearly state that concentrations of formaldehyde were well below nominated exposure standards and no adverse health effects would be expected associated with exposure to formaldehyde. [62] Counsel for the Appellant took instructions and did not seek an adjournment but advised the Commission that Mr Stewart would "…burn the midnight oil" and be in a position to give oral evidence on the NSCA reports. Mr Stewart subsequently gave evidence on Wednesday 28 November 2012. [63] It was never in issue in the hearing of this matter that formaldehyde was a known respiratory sensitiser. Nor could it be reasonably said that such a statement would have caught the Appellant off guard or it was an issue which the Intervener was somehow attempting to withhold. The report of Mr Rogers dated 27 July 2012 (exhibit 32) contains an annexure from Safe Work Australia which specifically contains a "Sensitiser notice". [64] I am satisfied that the Appellant has not suffered any prejudice as a consequence of the late disclosure of the amended NSCA report. Conclusions [65] The Appellant bears the onus for establishing, on the balance of probabilities, that: (a) he has suffered an injury; (b) his injury is one arising out of10 , or in the course of, employment11 ; and (c) his employment is a significant contributing factor to the injury.12 [66] On the consideration of the evidence before the Commission, I am not satisfied that the Appellant has discharged the onus of establishing that he has suffered an injury within the meaning of s. 32 of the Act namely, Reactive Airways Dysfunction Syndrome (RADS) or a Toxic Fume Inhalation Syndrome. [67] For the reasons advanced above, Mr Farrell's injury was not one arising out of, or in the course of, employment and his employment was not a significant contributing factor to the injury. [68] The Appellant's evidence, in my opinion, falls well short of any finding that formaldehyde was produced in sufficient quantities during the re-tread tyre manufacturing process at Bandag to produce the respiratory illness claimed. [69] There is no evidence before the Commission to support a contention that Mr Farrell was sensitised to formaldehyde which may cause acute reactive respiratory symptoms at levels that are well below the exposure standards. 10 Avis v WorkCover Queensland [2000] 172 QGIG 6 788; WorkCover Queensland v Curragh Queensland Mining Pty Ltd [2003] 172 QGIC 6. 11 Hartzimanolis v A.N.I. Corporation Ltd (1992) 173 CLR 473 at 484; WorkCover Queensland v BHP (QLD) Workers’ Compensation Unit [2002] QIC 27 at 2. 12 Chattin v WorkCover Queensland [1999] QIC 44 at 3; WorkCover Queensland v Cotmore [1999] 162 QIC 56; Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd.R. 519 at 529. -- 7 of 8 -- 8 [70] On the evidence before the Commission, I have formed the view that Mr Farrell has not discharged the requisite burden of proof and, as a consequence, I make the following orders: 1. that the appeal be dismissed; 2. that the decision of the Q-COMP Review Unit dated 24 June 2011 be confirmed; and 3. that the Appellant pay Q-COMP'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: 2012 November 27, 28, 29 Released: 13 February 2013 Appearances: Mr K. W. Roach, Counsel, instructed by Nathan Lawyers for the Appellant. Mr S. P. Gray, Counsel, directly instructed by Q-COMP. Mr G. Hampson, Counsel, instructed by Piper Alderman for the Intervener. -- 8 of 8 --