Carroll v Q-COMP [2012] QIRC 440

CITATION: Matthew Carroll AND Q-COMP (WC/2011/355) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 appeal to commission Matthew Carroll AND Q-COMP and OneSteel Limited (WC/2011/355) COMMISSIONER THOMPSON 14 September 2012 DECISION Introduction [1] On 15 September 2011, Matthew Carroll (Carroll) filed 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) dated 5 September 2011. The decision of Q-COMP was to confirm the decision of the Insurer to reject, in accordance with s. 32 of the Act, the Appellant's Notice of Claim for Damages. Q-COMP further found that Carroll did not have an entitlement to seek damages for a psychological condition or back injury. [2] On 22 November 2011, in accordance with s. 549(3) of the Act, Commissioner Fisher ordered that OneSteel Limited (OneSteel) be given leave to become a party to the Appeal. Relevant Legislation [3] The Legislation pertinent to this Appeal is ss. 32 and 275 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. (2) However, employment need not be a significant contributing factor to the injury if section 34(2) or 35(2) applies. (3) Injury includes the following - (a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease; (b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation - (i) a personal injury; (ii) a disease; (iii) a medical condition if the condition becomes a personal injury or disease because of the aggravation; (c) loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing; (d) death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury; (e) death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease; (f) death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation. (4) For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.". "275 Notice of claim for damages (1) Before starting a proceeding in a court for damages, a claimant must give notice under this section within the period of limitation for bringing a proceeding for the damages under the Limitation of Actions Act 1974. (2) The claimant must - (a) give the notice of claim in the approved form to the insurer at the insurer’s registered office; and -- 1 of 20 -- 2 (b) if the worker’s employer is not a self-insurer, give a copy of the notice of claim to the worker’s employer.". Nature of Appeal [4] The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls to the Appellant. Evidence [5] In the course of proceedings, evidence was given by seven witnesses. [6] The Commission, in deciding to précis the evidence of each of the witnesses and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety. Witness Lists [7] The witnesses for the Appellant were as follows:  Carroll;  Dr Neil Craddick;  Dr Margaret King; and  Dr John Pentis. [8] The witness for Q-COMP was as follows:  Dr Colin Rigg. [9] The witnesses for OneSteel were as follows:  Troy Stretton (Stretton); and  Richard McLay (McLay). Preliminary Issue [10] On 23 July 2012 an Application was filed with the Industrial Registrar by the Appellant to amend the Appeal Grounds (contained in material attached to the Notice of Appeal filed on 15 September 2011). [11] The Appellant presented to the Commission argument supportive of the amendments. Q-COMP and OneSteel objected to the amendments. The Commission, in considering the positions of all parties, concluded [Transcript p. 1-23]: "It is in the mind of the Commission the amendments would seem to be casting a net far beyond the matter subject to what the insurer and Q-COMP to date have dealt with and, in that respect, is beyond the jurisdiction of the Commission to grant leave for the amendments to the grounds for the appeal as sought. Accordingly, the substantive matter will be heard, subject to the original grounds of appeal.". [12] Immediately following the Decision of the Commission to reject the amendment, OneSteel (supported by Q-COMP) sought to have the Appeal dismissed on summary grounds. This was opposed by the Appellant. [13] The Commission, having considered the competing arguments, declined to dismiss the Appeal stating [Transcript p. 1-29]: "I understand the basis upon which Mr Hampson has raised with the Commission and asked for the Commission to use its discretion and to not continue with the matter. However I'm of a view that in the circumstances that, Mr Hampson, I don't accept the proposal put by yourself or by Mr Lippett on behalf of Q-Comp and it would be my intention that the matter proceed.". [14] Q-COMP, at that time, made Application to have the matter adjourned, which was supported by OneSteel. The Commission advised the parties that it was inclined to grant the adjournment and vacate the current days set aside to hear the Appeal. [15] The parties had discussions (in the absence of the Commission) about the way in which the Appeal would proceed, and subsequently advised that agreement had been reached that would not require the adjournment as -- 2 of 20 -- 3 sought. The Commission was required to issue the following direction (agreed by the parties) to enable the matter to proceed [Exhibit 5]: "With the exception of evidence led as to the credit of any witness: 1. Evidence led concerning the appeal regarding any alleged event leading to an injury be confined to the evidence concerning the event alleged in the appellant's Notice of Claim dated 2 February 2011, namely an alleged event of 28 November 2008 occurring about 1.30 p.m. 2. That evidence led concerning the appeal regarding any alleged injury be confined to evidence concerning the alleged consequences of the alleged event referred to in paragraph numbered 1 in herein.". Appellant Carroll [16] Carroll was employed by OneSteel as at 28 November 2008, and whilst unloading a four tonne bundle of steel from a semi-trailer on that day, he pulled the chain he was using to assist with the unloading and at that time "felt a little ping in his back", with his evidence being that everyday since he has suffered from a sore back. [17] The steel, which is unloaded, is delivered from a range of different locations and is generally used for cutting and bending so as to meet orders that have been made to OneSteel by their customers. The method of unloading the truck, in this circumstance, was to use an overhead gantry crane. Photographic evidence [Exhibit 6] of the area in which the unloading occurred was provided to the Commission. [18] Carroll gave evidence that, upon feeling pain, he immediately alighted the truck and stretched his back, and at that time informed a fellow worker, by the name of Ryan Grimmett (Grimmett), that he had hurt his back. He continued to work, finishing the shift at the normal cessation time of 2.00 p.m. [19] Carroll indicated that the business was experiencing levels of high demand which required daily deliveries of steel to the factory at the time in question and that in the course of his employment not only did he unload semi- trailers but also loaded semi-trailers and other trucks with finished product. [20] On completion of the shift, he went home at which time applied a heat pack and took medication in the form of Nurofen Gel. He was rostered to work the next day, 29 November 2008 (Saturday), but due to the back pain, decided to visit the Maroochydore Seven Day Medical Centre where he saw a male doctor by the name of Dr Colin Rigg. In the course of the consultation with the doctor who was not his regular doctor, he indicated that he had a sore back, was supposed to work that day and required a medical certificate. The doctor did not, at the time, examine him, but prescribed medication (Mobic) which was an anti-inflammatory. Upon leaving the Medical Centre, he visited a chemist located next to the Medical Centre and had the prescription filled. [21] On the Monday immediately after the Saturday in question, his back was still sore and he returned to the Medical Centre where this time he undertook a consultation with Dr Margaret King where he informed her that he had hurt his back and this time he was subject to a full examination by the doctor which required bending and doing "the leg things". There was also a range of other movements that were undertaken by him and, at the time, his evidence was that they were painful, particularly in the area of the lower back. Dr King prescribed medication in the form of Panadeine Forte and also referred him to a local Physiotherapist. [22] Due to the continuing pain, he did not attend for work that day and was given a medical certificate by Dr King in respect of his condition. Carroll, in evidence, indicated that the medical certificate was a WorkCover form given to him by Dr King who advised him to hand the form to the receptionist so it could be faxed off to WorkCover. The Medical Certificate had given him two weeks off work. [23] At the conclusion of the two weeks, he returned to work and, over the period of the next four to five months, worked on the basis of one day on and one day off until he finished work some time in 2009. [24] In going back to the visit with Dr King, Carroll's evidence was that as well as the WorkCover form he also had a Medical Certificate and at this time contacted McLay, who was his foreman, and advised him that he had injured his back and would be off work for two weeks. McLay indicated to him that he would need to call him back and a short time later Carroll received a call where he was advised that the employer was a self insurer and that they have their own paperwork. McLay advised Carroll to contact Dr King's office and have the WorkCover form cancelled. [25] OneSteel, through McLay, arranged for Carroll to visit a Dr Neil Craddick, whereupon he was examined, given no additional medication, and provided with a Medical Certificate to return to work on light duties. Carroll did -- 3 of 20 -- 4 not return immediately, but in evidence indicated that after being threatened with the sack, he recommenced work in the third week of December 2008. [26] On other treatment undertaken by Carroll regarding the injury, his evidence was that he had seen also a General Practitioner in Beerwah, a Physiotherapist on three or four occasions, and had made a number of visits to Dr King who had continued to provide "pain medicine". [27] In further evidence regarding the unloading duties undertaken by him, his evidence was that, in the first instance upon the arrival of a truck to the workplace, he would obtain a delivery docket from the driver and then confirm that the load met the content identified on the delivery docket. That docket was then later placed in the office, generally on McLay's desk. The bundles of steel that were unloaded and placed into racks also had "heat numbers" which were also required to be signed off. [28] Carroll was subject to extensive cross-examination from Q-COMP and OneSteel. Cross-examination by Q-COMP [29] On his discussion with Grimmett on 28 November 2008, Carroll stated that the gist of his conversation was "Yeah, my back's sore again" [Transcript p. 1-57]. On his attendance at the Medical Centre on 29 November 2008, he stated "No doubt about it, because I know, specifically, it was the Saturday morning" [Transcript p. 1-57]. He had not informed the doctor that he had hurt his back, just indicating that he needed a medical certificate because he was supposed to be at work. [30] In terms of the incident on 28 November 2008, Carroll acknowledged that he did not make a Workers' Compensation application in respect of that injury, but did make an application on 1 December 2008 for an injury claimed to have happened in June 2008 [Transcript p. 1-60]. He was prompted to make the claim during his consultation with Dr King on 1 December 2008. [31] Carroll was taken through a number of incident reports lodged by him for the period of his employment from 1 May 2008 until 17 February 2009 [Exhibits 7 and 8]. It was put to Carroll that it seemed he had, by way of incident reports, identified everything out of the ordinary that happened at work, except for the incident of 28 November 2008. Carroll accepted the proposition and, when asked for a reason why he had not, stated "No, No, I can't - I wish I had've" [Transcript p. 1-77]. Carroll accepted that as a diligent worker he was particular in filing incident reports [Transcript p. 1-78]. [32] In response to a previous claim for compensation for an injury that was said to have occurred in June 2008 and subsequently rejected before the Magistrates Court, Carroll accepted that he had, after that rejection, decided to launch a claim for the incident said to have happened on 28 November 2008 [Transcript p. 1-80]. [33] A series of questions were put to Carroll around his consultations with medical practitioners Rigg, King and Craddick. Further, during cross-examination, it was put to Carroll that the consultation with Dr Rigg was on 30 November 2008 rather than the proceeding day, to which he replied "I'd say that's not correct" [Transcript p. 1-83]. Carroll was questioned about an injury he sustained to his ribs in January 2009 as a result of a surfing injury when "wiped out" paddling on a big wave. Cross-examination by OneSteel [34] Carroll, in his Notice of Claim, had identified 28 November 2008 as the date that the injury occurred, then on 25 July 2012, in a statutory declaration [Exhibit 13] at paragraph 9, stated: "I confirm that I believe my injury was sustained over the course of the months from July 2008 to November 2008 while completing my work duties at OneSteel and that the symptoms of my injury only commenced on 28 November 2008.". [35] There was significant questioning around the discrepancy in dates when the injury was said to have occurred, with Carroll suggesting that he suffered an injury in July 2008 and 28 November 2008 [Transcript p. 2-33]. [36] Carroll confirmed previous evidence that:  the incident occurred on 28 November 2008;  he attended the Medical Centre on 29 November 2008; and  he had a prescription (Mobic) filled on 29 November 2008. -- 4 of 20 -- 5 [37] On the suggestion that the Medical Centre and Medicare records show that the date in which the consultation occurred and when the prescription was filled as being 30 November 2008, Carroll refused to accept that was the case [Transcript p. 2-45]. [38] Carroll was questioned about his attendance with Dr King on 1 December 2008 with him giving evidence that Dr King had either told him or directed him that he should put in the Workers' Compensation claim form that the incident took place in June or July 2008 [Transcript p. 2-47]. On documents signed by Carroll relating to the matter before the Commission, he gave evidence that he often signed such documents without reading them [Transcript p. 2-49]. [39] In relation to the surfing incident, Carroll accepted that he had not informed Dr John Pentis (Orthopaedic Surgeon), or Dr King of the injury arising from that event. [40] The cross-examination went, in length, to the process of unloading semi-trailers and, in particular, the paperwork associated with that task. Carroll was taken to a range of delivery dockets including those dated around 28 November 2008. In terms of a delivery document "received" on 27 November 2008, Carroll accepted that it would have arrived either on 27 November 2008 or 26 November 2008. The documents presented to Carroll did not relate to the unloading on 28 November 2008 with this being confirmed by him [Transcript p. 1-59]. The proposition that there was no semi-trailer unloaded by Carroll on that day was denied, with Carroll's evidence being that the records were wrong. Re-examination [41] In re-examination, Carroll was asked questions about the unloading of the semi-trailer on 28 November 2008 and of other employees present at the time. On the incident reports [Exhibit 7], Carroll's evidence was that such reports should be completed within a 24 hour period after the event [Transcript p. 1-72]. He did not complete an incident report on 28 November 2008 but had informed McLay on 1 December 2008 about the incident. On questions around the Statutory Declaration [Exhibit 13], Carroll indicated that paragraph 5 of that document confirmed he had injured his back on 28 November 2008. In concluding the re-examination, Carroll was taken to a delivery document (dated 21 November 2008) which showed the earliest delivery date as 28 November 2008 and the latest delivery date also as 28 November 2008 [Transcript p. 1-79]. Craddick [42] Dr Craddick, a General Practitioner, first saw Carroll on 4 December 2008 at which time Carroll had complained about back pain said to have been as a result of an injury at work. At the time of consultation, Carroll was accompanied by representatives of OneSteel, with the doctor's evidence being that he understood they wanted a further opinion in relation to Carroll's condition [Transcript p. 2-7]. At that time, he undertook an examination of Carroll and found there was some restriction of movement and that he had a painful tender lower back. Carroll, in the course of the consultations with Dr Craddick ongoing, had been the recipient of a number of Workers' Compensation Medical Certificates dated 4 December 2008, 11 December 2008, 20 March 2009, 23 March 2009, 11 February 2010 and 11 June 2010. The Workers' Compensation Medical Certificates contained a range of comment which included Carroll being:  unfit for work for a period, fit to return to normal duties; and  that he not lift heavy objects and avoid bending. [43] The clinical notes relating to Carroll's attendance with Dr Craddick had confirmed that around 20 March 2009, Carroll was feeling down and depressed and was subsequently diagnosed with depression and anxiety. It was Dr Craddick's evidence that Carroll was a "susceptible individual" and given the environment of reduced financial capacity, reduced work, loss of goal and suffering an injury, can bring about depression. It was the opinion of Dr Craddick that this is what occurred. His evidence also included references to the fact that Carroll had suffered depression previously. A mental health plan was prepared and Carroll was referred to a Psychologist. On 20 March 2009 Dr Craddick conducted an examination of Carroll and the clinical notes from that consultation reflected that he was suffering mental stress, was anxious and depressed, and was feeling harassed at work as they "don't believe him". A Workers' Compensation Medical Certificate was issued at that time which indicated that he was not able to work for the period 20 to 25 March 2009. [44] In a report prepared by Dr Craddick dated 16 July 2012, his evidence was that after perusal of his notes in relation to Carroll, he stated that when Carroll had attended on 4 December 2008, accompanied by representatives of OneSteel, he confirmed that his opinion was that the injury suffered by Carroll had been consistent with an injury occurring within weeks prior to the consultation. The report had also made reference to a diagnosis of depression with mood disturbances first noted in March 2009 and in the opinion of Dr Craddick the condition was consistent with the recent back injury being one of the factors leading to the condition. -- 5 of 20 -- 6 Cross-examination by Q-COMP [45] Cross-examination of Dr Craddick by Q-COMP had an acceptance that there are differences in relation to injuries that come about as a result of lifting, slipping and falling. On reaching a conclusion about the cause of Carroll's depression, Dr Craddick accepted that his view of causation could be affected marginally or quite dramatically if there were other factors that contributed to the depression. In respect to a consultation that occurred on 14 May 2009, Carroll was said to describe an auditory hallucination by television or radio eight years previously when he was said to be taking amphetamines and ecstasy, with the clinical notes indicating that Carroll remained convinced, as at that time, that a delusion was in fact a reality. Dr Craddick accepted that this tended to suggest that Carroll unfortunately did suffer from perhaps some distorted perception or impaired ability to reason accurately. Clinical notes of a consultation on 19 May 2010, according to the evidence of Dr Craddick, indicated that Carroll at that time was perhaps abusing alcohol and illicit drugs. Cross-examination by OneSteel [46] Dr Craddick confirmed, in evidence, that Carroll had not informed him in the early part of 2009 about being involved in a surfing accident which had left him with a fractured rib. On describing the incident in which Carroll had given evidence of being injured in big surf, Dr Craddick accepted that such an accident of such force could either cause a discrete back injury or, alternatively, aggravate someone who had a vulnerable back. Re-examination [47] In re-examination, it was put to Dr Craddick matters relating to the history of Carroll's symptoms of depression and the evidence was that from the first consultation of 4 December 2008 up until the notation of 20 March 2009, Carroll had presented as well and not displaying symptoms of the condition of depression. King [48] Dr King, a General Practitioner who works out of the Maroochydore Seven Day Medical Centre, provided medical services to Carroll at 2.57 p.m. on 1 December 2008. An examination of Carroll was undertaken which required him to bend and perform other functions such as a straight leg raise. From the examination, Dr King deduced that Carroll did not have any neurological problems, but had a lumber disc injury. [49] Carroll, in the course of the consultation, had provided information that he was a steel worker and on the basis of the injury that was causing him pain, limitation of movement and mechanisms of injury, Dr King issued a Medical Certificate indicating that he was "totally incapacitated for work from 29 November to 15 December 2008". Referrals were given to Carroll to seek treatment from a Physiotherapist and Occupational Therapist. Additionally, he was prescribed medication in the form of Panadeine Forte. [50] On 15 December 2008, Dr King reviewed Carroll, at which time it was determined that he could return to work on light duties. A Medical Certificate (not a Workers' Compensation Medical Certificate) was prepared for his employer. Cross-examination by Q-COMP [51] Under cross-examination, Dr King was taken to the Medical Certificate issued on 1 December 2008 which stated that Carroll's injury had commenced in June 2008 when picking up trench mesh and, through repetitive lifting and bending, the injury had become chronic. Dr King accepted that her notes had not recorded Carroll informing her about the chain pulling incident of 28 November 2008 and it would be out of the ordinary for her not to have made a notation if he had informed her. Also, with regards to the Medical Certificates having a commencement date of 29 November 2008, Dr King confirmed the first consultation date was 30 November 2008 and any reference to 29 November 2008 would be a typographical error [Transcript p. 2-98]. [52] Dr King confirmed her records made no mention of an acute event on 28 November 2008 having occurred in respect of Carroll's injury [Transcript p. 2-98] and that Carroll had not informed her of the surfing accident in January 2009. Cross-examination by OneSteel [53] Dr King confirmed that it would be the practice that if a patient had a work injury, there would be a record taken of the acute injury and the specific event. On whether it was the practice to help a patient complete a Workers' Compensation (application) Form, Dr King's evidence was that "I don't think I've ever actually seen one. Don't know what they look like" [Transcript p. 2-100]. When asked whether she would be surprised that Carroll's evidence was that she had (on 1 December 2008) directed him to put the date of injury on a Workers' Compensation Form as being in June 2008, Dr King answered in the affirmative [Transcript p. 2-100]. -- 6 of 20 -- 7 Re-examination [54] In re-examination, Dr King agreed that an Application for Workers' Compensation had been "faxed" out of the practice and that this would have been done by the reception staff. On the matter of an acute event, Dr King gave evidence that chronic disc problems were often a multitude of small injuries which was the assumption she had made in this case and she might not always record "all of those things" [Transcript p. 2-102]. Pentis [55] Dr Pentis, an Orthopaedic Surgeon, saw Carroll on 6 April 2010 which resulted in a report being produced on 8 April 2010. In preparing the report [Exhibit 15], he relied upon Carroll to provide a history of his previous accidents, illnesses, surgical problems, any other medical problems, work history, time off due to injury, sport and recreational pursuits and history in respect of medications. [56] Carroll had provided (according to the report) information that in June or July 2008 he had hurt his back carrying mesh and then in November 2008 had further injured his back on the back of a truck chaining up bundles of steel. On examination, Dr Pentis found that Carroll had tenderness in the lumber musculature and that he had:  normal motor and sensory function in the limbs;  could stand on the heels and toes without difficulty;  jerks were present at the knees and ankles;  straight leg raising of 85 on the right and left - some slight tightness; and  range of movement of the spine, decreased forward flexion, slightly decreased extension - rotation was stiffish, lateral flexion to the right was sore. [57] Dr Pentis opined that Carroll had sustained injuries to his lower spine in the stated incidences damaging the lower discs in both accounts. The first one settling a partial tear and the second one a further tear with more problems. [58] Having observed X-rays and MRI's, Dr Pentis holds the opinion that the injury is consistent with the event described to him as having occurred in November 2008. Cross-examination by Q-COMP [59] Under cross-examination, Dr Pentis accepted that he had no objective way of determining whether he had been given an accurate history and that the injury could have been the product of a number of activities. Dr Pentis did not "think" there was a history of major problems in between the two incidents [Transcript P. 1-65]. Cross-examination by OneSteel [60] Dr Pentis was questioned on the forms of work undertaken since November 2008 by Carroll and gave evidence that Carroll had not informed him of being put to work on a coil machine after the November 2008 incident [Transcript p. 1-65]. [61] Dr Pentis re-affirmed his earlier evidence that it was difficult to give medical opinions when not in possession of full or accurate medical history from the patient. Re-examination [62] In re-examination, Dr Pentis affirmed that if Carroll had suffered any other injury after the 28 November 2008 incident and prior to his consultation, his opinion in relation to the mechanisms of his injury would not have changed [Transcript p. 1-66]. Q-COMP Rigg [63] Dr Rigg, a General Practitioner, working out of the Maroochydore Seven Day Medical Centre, gave evidence that Carroll had attended his surgery at 8.55 a.m. on 30 November 2008 which was the first time he had met Carroll. In terms of the consultation, his clinical notes [Exhibit 16] recorded that he questioned Carroll about the possible cause of his sore back, however Carroll was unable to recall anything of particular note that may have caused him to hurt his back. Dr Rigg stated that it was "highly unlikely" that he would have made comments to the effect that Carroll had probably hurt his back while "out on the piss". His clinical notes had stated Carroll had been sore in his back for a few weeks prior to the consultation. Dr Rigg was confident that he had not -- 7 of 20 -- 8 provided Carroll with a Medical Certificate relating to an incapacity to work, however he did prescribe medication in the form of Mobic. [64] Under cross-examination, Dr Rigg's evidence was that the Medical Centre operated on a walk in arrangement (no appointments) on weekends. Carroll had informed him that he had woken on Saturday morning with a sore back and that he was employed in a steel shed. The conclusion reached by him following the consultation was that there had likely been an event that had caused a ligament injury which was followed by muscle spasms, however it was not possible to determine when or how his back had become sore. Dr Rigg accepted that pulling a 20 kilogram chain on 28 November 2008 could present pain and mechanisms that would create a muscle spasm [Transcript p. 2-86]. OneSteel Stretton [65] Stretton, a part-time employee of OneSteel, has been employed at the same place since 1997, albeit with a number of different employers as a result of the business changing hands. In November 2008 he was a Team Leader on the afternoon shift with responsibilities for stock control, loading and unloading trucks, as well as assisting with crane work. He gave evidence of the procedures (in November 2008) for unloading trucks at OneSteel premises, both body trucks and semi-trailers. In the case of semi-trailers, they would come into the shed where cranes were used to unload the product. [66] The procedures were:  guide driver to loading bay;  collect paperwork (from the driver);  driver un-straps the load;  OneSteel employees then cross reference paperwork with the load; and  paperwork taken into the office, stamped "received" with date of receipt and entered on to a computer by office staff. [67] Stretton was taken to a number of documents (individually) which identified the date of trucks arriving for unloading, weight and description of the product, and the received stamp on the document. In the case of Exhibit 24, a semi-trailer had arrived on 26 November 2008 at around lunchtime and had been unloaded by Stretton. The document had been stamped received on 27 November 2008. In terms of the processing by the office staff, his evidence was that it does not necessarily get stamped on the date it arrives with the example being given that a load arriving on a Friday evening would likely be stamped the following Monday [Transcript p. 3-8]. Note [68] At this stage of Stretton's evidence, Counsel for the Appellant raised issue with a document put to Stretton being tendered in the proceedings on the basis that Stretton had not personally been the signatory of the document in question. OneSteel, supported by Q-COMP, argued that the documents in question were business records of OneSteel. The Commission considered the arguments of each of the parties and, following a short adjournment, gave the following Decision from the Bench: "The counsel for the appellant has objected to the admission in the proceedings of a document which is a OneSteel dispatch advice which was sought to be tendered through the witness Stretton. The advice in question has on the top, which - it's headed OneSteel and dispatch advice and then the top right hand side it's dated the 25th of November 2008. The document on the bottom line, under the section identified as received in good order, has a signature which I understand to be that of Matthew Carroll. The validity of that signature is, in my view, from my own recollection, been confirmed by Carroll in the course of cross-examination yesterday, although I do not have access to the transcript at this time to confirm my recollection. The document also has on it a stamp which has two colours, red and blue. Blue says received and the red stamp is dated the 27th of November 2008. The Commission itself, and I wish to make some comments about the Commission, is established under the Industrial Relations Act of 1999 and under that Act, section 320 of the Act, there is a provision which talks about the basis of decisions of the Commission and Magistrates. The - in that, at section 322, it says the following: 'In proceedings, the Commission or Industrial Magistrate Court, (a) is not bound by technicalities, legal forms or rules of evidence and (b) may inform itself on a matter it considers appropriate in the exercise of jurisdiction.' At 3 it goes on to say: 'Also the Commission or Industrial Magistrates Court is to be governed in its decisions by equity, good conscience and a substantial merits of the -- 8 of 20 -- 9 case, having regard for the interests of at (a) the person immediately concerned and (b) the community as a whole.' The Commission - further on at 6, it says: 'In exercising its jurisdiction, the Commission must have appropriate regard for the rules'. The opposition - the appellant's opposition to the tendering of the particular document to which I've referred has been based on sections 92 of the Evidence Act of 1997 and the argument is, in essence, that the document can not be tendered through the witness Stretton as it is not a document that has been made by him, nor it is a document to which he has had some direct involvement. Counsel for the intervener, in the course of arguing against the position adopted by the appellant, indicated that the document is entitled to become part of the proceedings on the basis that it is a business document and Counsel went on to correctly say that the - that in relation to matters about the onus of proof, in cases of this nature that it's upon the appellant and it's not a matter for the intervener or the respondent for that matter to prove a case. And the intervener went on to indicate that if the document in question wasn't necessarily accepted into the proceedings, it did not necessarily disrupt their particular case. The appellant's Counsel did argue though in the course of matters that the appellant didn't have access to the - to documentation in relation to when loads were delivered to the business or otherwise and, whilst that may have been the case, there certainly was the opportunity in the view of the Commission for the appellant, through the course of discovery, at any time in this matter to seek such document from the employer. The case for the appellant has been concluded and no such documentation was placed before the Commission in the course of that case. The Commission in considering the argument to set aside - sorry. The Commission, in considering the argument to withhold this document from being tendered into proceedings, has determined at this stage to set aside the particular document in question until the conclusion of the evidence-in-chief of Stretton, then the Commission would inform that parties on whether the document would become an exhibit in the matter or otherwise. In saying that, the Commission notes that there may well be some other documents that the Commission might be required to deal with in the same way, and in terms of conducting the matter, it's my view that the Commission would be best placed to deal with it in the manner that I've described. So, if we call the witness back. With this particular document at this stage, I'll keep it on hold." [Transcript pp. 3-20 and 3-21]. [69] Stretton, in continuing with his evidence-in-chief, was taken to a number of other documents which went to the matter of deliveries made to the OneSteel premises and a number were tendered in to the proceedings [Exhibits 25 to 32 inclusive]. The information contained in the exhibits included:  dates particular loads were unloaded;  descriptions of such loads;  locations from where loads were dispatched. [70] Stretton, in giving evidence in relation to the documentation he had been taken to in the course of his evidence, informed the Commission that he was the person responsible for extracting such documents from OneSteel's archives. In undertaking that task, he searched for inwards goods forwarded to his branch (Kunda Park) from July 2008 until December 2008 and, in particular, dates for anything to do with 28 November 2008 [Transcript p. 3-32]. All documents were then sought to be tendered in the proceedings. The Commission, following the content of the previously mentioned Decision from the Bench, allowed the two documents [Identification numbers 2 and 3, now Exhibits 31 and 32] that had been withheld to be admitted into the proceedings. [71] The cross-examination of Stretton by Counsel for the Appellant was extensive, going to a range of matters including:  Stretton's employment at Kunda Park;  roles undertaken including monitoring of other staff;  incident reports;  observing Carroll in the sick bay;  knowledge of Carroll having a previous injury; and  work tasks undertaken by Carroll including EBG coil machine. -- 9 of 20 -- 10 [72] The most significant component of the cross-examination surrounded the documents tendered in the course of his evidence [Exhibits 24 to 32 inclusive] with questioning going to:  various signatures;  dates of delivery;  dates on received stamps; and  signing of delivery documents but not unloading the semi-trailer. [73] Stretton gave evidence that he had undertaken a "painstaking" search of OneSteel business records, but could not find any for 28 November 2008 [Transcript p. 3-65]. McLay [74] McLay, a former employee of OneSteel of some 16 years service, gave evidence of knowing Carroll for 27 years. His evidence was that he was at work at Kunda Park on 28 November 2008 but did not recall witnessing an accident involving Carroll on that day. The systems in place at that time required an incident report to be filled out if there was an incident or injury. The report forms were located just outside his office and, on completion, were handed to him. Upon receipt of the form, he would "fill out the rest" of the form and do the investigation. According to McLay's evidence, Carroll was familiar with the system "because he had filled out plenty before" [Transcript p. 3-68]. [75] In relation to 28 November 2008, his first conversation (by telephone) with Carroll was on 1 December 2008 when he asked Carroll why he had not attended for work on 29 November 2008 whereby Carroll informed him he had been to the doctor and would contact him later that afternoon. Contact was made later that day by Carroll (as promised) advising that he had been given more time off work and that he had hurt himself on Friday (28 November 2008) although he did not say "how, when, where" [Transcript p. 3-69]. Carroll gave no specifics about any activity he had been doing. After the conversation, he checked to see if there was an incident report, but did not find one. His evidence was that he completed a report on 1 December 2008 that Carroll had a back injury and being a "report only", which meant that if someone injures themselves on the weekend rather than at work. If it is proven later that it is an aggravation "then so be it". The purpose was to place on the record that there was a problem with Carroll. Cross-examination by Q-COMP [76] Cross-examination of McLay went to evidence given in another Court about a back injury suffered by Carroll in June or July 2008 where he could not recall finding an incident report relating to that incident and further he had no recollection of Carroll reporting a back injury at that time. McLay gave evidence that Carroll had been diligent in completing incident reports. Cross-examination by Appellant [77] The cross-examination undertaken on behalf of the Appellant went firstly to the systems in place a the time relating to the reporting of incidents. McLay accepted that Carroll woke on Saturday morning (29 November 2008) with back pain and that his reporting it on 1 December 2008 was within the parameters of OneSteel's requirements. McLay accepted that the "report only" report completed by him on 1 December 2008 had not been changed, despite receiving notification from Carroll that he had hurt himself at work and been given a Medical Certificate giving Carroll two weeks off work. [78] On the evidence given by McLay in another Court in a case involving Carroll, he had acknowledged that he could not find an incident report relating to having observed Carroll having muscle spasms and that it was possible for incident reports to go missing [Transcript p. 3-76]. [79] McLay was taken to a statement given by him in March 2009 where he put the view that Carroll's back injury was work-related from Friday 28 November 2008 when he must have aggravated his back and it got worse over the weekend. He did not believe Carroll was a liar and went on to say that there had been no incident report put in for that date [Transcript p. 3-78]. McLay was not asked to comment but he did not refute the remarks. [80] In a further statement (given on 6 June 2011) from McLay which was given willingly with no pressure or inducement, he was said to have stated "In late 2008/2009 we were really busy. It is possible Matthew [Carroll] might have twinged his back at work on the Friday and didn't feel the effects until the - that night or Saturday morning, but he never put in an incident report for it. Matthew wasn't naïve about incident reporting" [Transcript p. 3-79]. [81] McLay accepted that Carroll did tell him on the Monday morning (1 December 2008) that he injured himself and that McLay completed an incident report on his behalf marked as "report only". He accepted it was possible that -- 10 of 20 -- 11 Carroll could have twinged his back on the Friday (28 November 2008) [Transcript p. 3-79] and that it was busy at that time with an estimated 74 tonne per week coming in to the workplace. [82] On the entering of delivery information, McLay's evidence was that it was entered onto the computer almost always at the same time it was delivered and nearly always by "ourselves" and not the office staff [Transcript p. 3-82]. [83] The delivery documents are stamped by the office or the person that receives it. McLay accepted that it was possible for delivery material (documentation) to go missing, including documentation from a delivery arriving on 28 November 2008. [84] In cross-examination from Q-COMP, McLay gave evidence that he had never experienced paperwork relating to a whole semi-trailer loaded with material go astray and he had no recollection of paperwork missing from a load in November 2008. Re-examination by OneSteel [85] In re-examination, McLay gave evidence of how paperwork (if lost) could be retraced and his evidence included dealings with delivery drivers. Submissions [86] Following the completion of evidence, there was agreement that written submissions would be provided and the parties (if necessary) be given the opportunity to speak to their submissions. Appellant [87] In opening the submission, the brief history of the claim was identified in the following terms:  At 28 November 2008, Carroll was a Labourer for OneSteel.  On that day, he injured his back while chaining a two tonne bundle of steel. In performing that task, he stated that he suffered a "tightening sensation in his back".  Doctor's notes record that he attended Dr Rigg at around 8.55 a.m. on 30 November 2008. He was diagnosed with a likely ligament injury and then muscle spasm.  On 1 December 2008 at approximately 2.57 p.m. he re-attended the same Medical Centre where he was examined by Dr King who diagnosed a lumber disc injury which she stated was based on Carroll's pain, limitation of movement and mechanism of injury. His restrictions on observation were "caused by a spasm in the lower back". He was prescribed Panadeine Forte and referred to a Physiotherapist.  Dr King completed a Q-COMP Workers' Compensation Medical Certificate diagnosing a lumbar disc injury with the cause relating to repetitive lifting and bending. Carroll was totally incapacitated for work from Saturday 29 November to 15 December 2008. On 15 December 2008 Dr King certified him fit to return to work on light duties and in a letter to the employer stated: "Matthew is fit to return to work from the 16th of December, should not lift more than 5kgs or perform duties requiring frequent bending until the 31st of December.".  On 2 April 2009, Dr King issued a further Medical Certificate diagnosing Carroll with an injury of the 4th and 5th lumbar discs.  On 2 February 2011, Carroll lodged with OneSteel (through its self-insurance unit) a Notice of Claim for Damages for injuries resulting from an "event" that occurred at approximately 1.30 p.m. on 28 November 2008.  On 8 June 2011, OneSteel's self-insurance unit rejected Carroll's claim for compensation on the basis that he did not sustain an injury within the meaning of s. 32 of the Act.  On 9 June 2011, Carroll lodged with Q-COMP an Application for Review in which Q-COMP found (as did the insurer) that Carroll had sustained a "personal injury" lumbar back L4/L5 level, but as there were a "lack of witnesses to the alleged incident on 28 November 2008" the injury did not arise out of or in the course of his employment. -- 11 of 20 -- 12  Q-COMP had considered evidence from Messes Grimmett, Tomkins, Billingham, Hingist and Kilner, none of whom were called to give evidence at the trial.  McLay, who gave evidence after being called to do so by OneSteel, had made a statement on 26 March 2009 which he stated: "From my view I only think Matthew's back injury was work related in any way from the Friday 28 November when he must have aggravated his back and it got worse over the weekend. I do not believe Matthew to be a liar and would be very surprised if he did. The matter was not reported as a work related injury. There has been no incident report put in for the 28 November 2008.".  McLay, in evidence, confirmed that he had not worked on 29 and 30 November 2008. Carroll had reported the incident to him on 1 December 2008 which was within the parameters of OneSteel's requirements. Carroll did not complete an incident report (admitted by Carroll) and that McLay recorded the incident as being a "report only".  It is not in dispute that Carroll suffered an injury to the back, however what is of dispute is the credit of Carroll in whether he injured himself at work on 28 November 2008. That is the decision that Carroll appeals. [88] On the issues for determination in the submission, it is alleged in the Notice of Claim for Damages that Carroll had lower back and psychological injuries caused by an "event that occurred on 28 November 2008". Carroll has always maintained that no-one witnessed the event. There is abundant evidence from Doctors Rigg and King that Carroll had, as at 30 November 2008, injuries to the back region of his body. [89] In order to succeed, Carroll must satisfy the elements of s. 32 of the Act, therefore proving, on the balance of probabilities, that the "event" giving rise to his back pain occurred on 28 November 2008 and that there is a "causal or consequential" relationship between his employment and the injury. It does not require a direct or proximate relationship as per the interpretation of "arising out of" in Lackey v WorkCover1. [90] There were concessions from Q-COMP and OneSteel that Carroll was a "Worker" at the relevant time, he sustained a personal injury diagnosed as a lumbar back disease at the L4/L5 level and further, a personal injury of a psychological nature in the form of depression. [91] The issues for determination were identified as:  whether the Appellant's back injury, namely "disc injury/strain" and the secondary psychological depression arose out of, or in the course of, the Appellant's employment; and  whether that employment was a significant contributing factor to those injuries. [92] It is Carroll that carries the burden of proof (see Rossmuller v Q-COMP2) and to succeed he must, on the balance of probabilities, prove that he:  suffered an injury;  that the injury arose out of, or in the course of, his employment with OneSteel; and  the employment with OneSteel was a significant contributing factor to the onset of the injury. [93] In relation to the power of the Commission, which is found at s. 558 of the Act, the submission provided a definition of "more probable" said to mean no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood, it does not require certainty (Bradshaw v McEwans Pty Ltd3). [94] Matters on which the proper disposition of the Appeal does not depend were identified and included:  Carroll's appreciation of the causative relationship between his back pain and the nature and circumstances of his employment.  Carroll's confusion of the date and time he attended medical practitioners as the accident occurred four years ago. 1 Carmel Lackey v WorkCover [2000] 165 QGIG 22 2 Eric Rossmuller v Q-COMP (C/2009/36) - Decision <http://www.qirc.qld.gov.au> 3 Bradshaw v McEwans Pty Ltd [1951] 217 ALR 1 -- 12 of 20 -- 13  Carroll's statement to Dr Rigg that he could not recall any particular event that could have hurt his back.  Carroll's decision not to complete an incident report leaving it to his Manager.  Carroll's attempt to amend his Notice of Claim to plead an over period of time issue.  Adverse finding by Industrial Magistrate in relation to a June 2008 injury.  Questions put to Carroll that were mischievous, about the nature of his back pain or lack of reporting. [95] The questions of Carroll's credibility were ill-founded as they relate to his evidence that he injured himself while chaining a load as neither Q-COMP nor OneSteel (despite volumes of records) were able to establish that a two tonne load of steel was not delivered to the workshop on 28 November 2008. McLay had given evidence that OneSteel documents could go missing. According to "The Rule on Browne v Dunn"4, Q-COMP and OneSteel cannot rely on contrary evidence that a load was not delivered on 28 November 2008. [96] OneSteel was in the position of being able to call Grimmett, Tomkins, Billingham, Hingst and Kilner yet elected not to, leaving the inference to be drawn that their evidence would not be of assistance (see Jones v Dunkel5). [97] The test for whether Carroll's injury arose out of, or in the course of, his employment is whether his employment was "a" significant contributing factor to the onset of pain. The evidence from witnesses called by OneSteel was of no assistance as they were not medical experts. Drs King, Rigg and Craddick accepted that when Carroll had presented, he had symptoms consistent with a muscle spasm and that there had been a recent event that was consistent with the pulling of a chain on 28 November 2008. [98] Dr Pentis had accepted the history provided by Carroll and that the major contributor to the problems that he is now experiencing was the event of 28 November 2008. Dr Pentis observed X-rays and MRI scans which he said were consistent with the mechanism of injury described by Carroll. Although unaware of the surfing incident with Carroll in early 2009, Dr Pentis' opinion was it would not have changed the mechanism of the event of 28 November 2008. [99] On findings of fact, it was said that the following should be accepted:  Carroll was a "Worker" within the meaning of the Act.  Carroll's evidence, in respect of his work duties.  Carroll's evidence on the 28 November 2008 being a busy time of the year.  It is more probable than not that Carroll was chaining a load on 28 November 2008 and Carroll's injury resulted from pulling on the chain.  Carroll's sore back was caused by his work duties on 28 November 2008.  Medical evidence supports the stated cause and the version of events stated in the Notice of Claim. [100] The submission in support of Carroll's injury arising out of, or in the course, of employment relied upon the following authorities:  Federal Broom Co Pty Ltd v Semlitch6; and  Newberry v Suncorp Metway Insurance Ltd7. [101] On whether Carroll's employment was a "significant contributing factor" to the injury, there was reliance upon the following authorities:  Chattin v WorkCover Queensland8; and  Croning v Workers' Compensation Board of Queensland9. 4 "The Rule on Brown v Dunn" [1993] AUConstrLawNlr - Justice Rolfe 5 Jones v Dunkel [1959] 101 CLR 298 6 Federal Broom Co Pty Ltd v Semlitch [1964] 110 CLR 626 7 Newberry v Suncorp Metway Insurance Ltd [2006] 1 QdR 519 8 Chattin v WorkCover Queensland [1999] QIC 44 -- 13 of 20 -- 14 [102] The only medical evidence on the issue of employment before the proceedings was that of Dr Pentis who gave evidence that Carroll's work was a significant contributing factor to his back injury. [103] In concluding, it was submitted that the earlier event of June/July 2008 was a separate event and ought not to be muddled with this claim. In the matter of OneSteel v Q-COMP and Schofield10, it was accepted that s. 32 of the Act does not require the Commission to determine "the" significant contributing factor, but to determine whether the employment was "a" significant factor to an injury or aggravation of an injury. The evidence of Carroll on the pain he experienced on 28 November 2008 and reported to Dr Rigg, along with the evidence of Dr Pentis, was said to constitute with the mechanism of injury reported in the Notice of Claim. [104] It was submitted that the decision of Q-COMP was wrong and the Appeal should be allowed with costs of, and incidental to, the Appeal being awarded to the Appellant. Q-COMP [105] The submission went to the history of events commencing with reference to the Notice of Claim for Damages completed on 2 February 2011 where Carroll had indentified the injury happening at 1.30 p.m. on 28 November 2008 whilst he was chaining a two tonne bundle of steel and he had suffered a tightening sensation in his back. OneSteel Limited, a self-insurer, had rejected the claim and Q-COMP had confirmed the rejection. [106] Carroll's evidence was that he spoke to Grimmett at the time who said words to the effect "you'll be right mate". He completed his shift went home and applied a heat pack in addition to taking some pain killers. Carroll was in no doubt that the incident occurred on 28 November 2008 and that he visited Dr Rigg on the following morning. Dr Rigg did not undertake an examination of Carroll, but did issue a prescription which he had filled at a Chemist next door to the Medical Centre. A Medical Certificate was issued for 29 November 2008. [107] On the following Monday (1 December 2008) he saw Dr King telling her that he hurt his back at work. Carroll's evidence was that, on the advice of Dr King, he completed an application for Workers' Compensation for an injury he claimed to have suffered in June 2008, claiming that Dr King gave advice not mention to the incident of 28 November 2008. On the same day he rang McLay and told him that he had injured his back and was referred to Dr Craddick where he did, at this time, mention the incident of 28 November 2008. [108] The submission went to Carroll's failure to complete an incident report in respect of the 28 November 2008 incident acknowledging that during the period 1 May 2008 until 17 February 2009 he was the author of twenty- three incident reports, all compiled before leaving work on the relevant day. Also covered was the matter of a previous unsuccessful Workers' Compensation claim in the Magistrates Court. [109] Q-COMP indicated that in this case there was only "one live issue", that being whether the Commission can be satisfied on the balance of probabilities that Carroll hurt his back in the manner described whilst at work on 28 November 2008. If the Commission is so satisfied, then that is the end of the matter because clearly the injury happened in the course of employment and that employment was a significant contributing factor. [110] The position of Q-COMP is that the incident of 28 November 2008 did not occur. [111] So far as the evidence on whether there was a workplace incident on 28 November 2008, it was accepted that the period of three and a-half years that had elapsed could lead to witnesses' recollections being hazy about details and some latitude should be allowed for that factor. In this case, Carroll was adamant throughout his evidence that he first went to the doctor on 29 November 2008 and wanted a Medical Certificate because he was supposed to be at work. The Medical Centre's records show that Carroll attended at 8.55 a.m. on 30 November 2008 and two independent records, that of Medicare and Patient Benefit Summary (PBS) confirm 30 November 2008 as the date. [112] On the consultation with Dr Rigg, the evidence of the doctor was that he did not issue a Medical Certificate to Carroll, he denied having made the comment "you probably hurt yourself on the piss", and his notes of the visit made it clear that there was a discussion about causation, which Carroll had mentioned having hurt his back six months earlier and taking two months to heal. [113] The notes of Dr King, along with her evidence, indicate that at the consultations on 1 and 15 December 2008, and in January 2009, Carroll made no mention of there having been a workplace injury on 28 November 2008. 9 Croning v Workers' Compensation Board of Queensland [1997] 156 QGIG 100 10 OneSteel v Q-COMP and Ronald Schofield - (WC/2010/175) - Decision - http://www.qirc.qld.gov.au> -- 14 of 20 -- 15 [114] The submission raised issue with Carroll providing different information to each of the doctors as to how he had suffered his injury. [115] On the failure of the Appellant to call Grimmett to give evidence following the evidence of Carroll about his (Grimmett's) involvement, the Commission, in line with the authority of Jones v Dunkel11, can draw an inference against a party who does not call a material witness, but it is at the discretion of the tribunal. In this case, it was said that there can be no more material witness than Grimmett and it was suggested that the Appellant had made a conscious decision to not call him, therefore in the circumstances it would be appropriate to draw an adverse inference against Carroll on his credibility on account of the absence of Grimmett. [116] Whilst in some circumstances it would be unfair to criticise an employee for not completing an incident report, in this case it is different in that Carroll had agreed he was diligent about completing incident reports and the absence of such a report about the incident of 28 November 2008 indicates that there may well have not been an incident on that date. Carroll did not leave the workplace immediately after the alleged incident, remaining until the end of his shift. Carroll could not offer any explanation for not completing an incident report. [117] The evidence of Carroll that Dr King had advised him to make an application for Workers' Compensation was denied by her and went further to the extent that her evidence was that she had never advised a patient about the content to be included in such an application. [118] There were circumstances that might properly give cause for concern about Carroll's reliability with the submission focussing on the previous claim and his medical conditions relating to Carroll who remained convinced that he had suffered hallucinations. [119] In view of the combination of all of the circumstances, together with the absence of any evidence supporting or confirming Carroll's allegations, it was submitted that the Commission could not be satisfied, on the balance of probabilities, that there was a workplace incident resulting in Carroll's back injury on or around 28 November 2008. OneSteel [120] OneSteel's submission firstly went to the Appellant bearing the onus of proving that, on the balance of probabilities, he had suffered an injury as defined in s. 32 of the Act. The Appellant, in the Notice of Claim, gave details of the alleged event occurring at 1.30 p.m. on 28 November 2008 and left blank (Question 36) where an incident is alleged to have occurred over a period of time. Q-COMP, in their Reasons for Decision, made it clear that their decision was based upon whether or not an "injury" was sustained at work on 28 November 2008. The jurisdiction of the Commission is to clearly make a determination about the Review Decision which specifically identified the time of the alleged injury as being 1.30 p.m. on 28 November 2008. [121] Carroll, in the course of his evidence, did not deviate from his version of events that the incident occurred on 28 November 2008 when unloading a semi-trailer. [122] OneSteel does not dispute that at the time Carroll was a "Worker" for the purposes of the Act and it is apparent that he has an injured back. The critical point in dispute is whether he has suffered an injury (both back and psychological) as alleged as the result of an event alleged to have occurred at 1.30 p.m. on 28 November 2008. This is the only consideration for the Commission. [123] On the credit of Carroll, it was said to have been put sharply in focus during the trial. At the commencement, he had sworn an affidavit [Exhibit 13] that his "injury" was sustained over the course of the months from July 2008 to November 2008 and "that the symptoms of my injury only commenced on 28 November 2008". Carroll had, in evidence (cross-examination), stated that "both were corrected" which must go to his credit as he was quite happy to alter or add to his story. It was submitted that Carroll's credit also suffered in the context of other evidence given in the proceedings. [124] The medical evidence of Dr Rigg and Dr King around the initial consultation with Carroll is of little question as notes and computer records confirm such times as being correct. [125] The Medicare Report and PBS Summary [Exhibit 23], tendered into evidence by consent, shows:  Carroll attended Dr Rigg's surgery on Sunday 30 November 2008 and not Saturday 29 November 2008;  Carroll obtained medication prescribed by Dr Rigg on 30 November 2008; and 11 Jones v Dunkel [1959] 101 CLR 298 -- 15 of 20 -- 16  Carroll attended Dr King's rooms on Monday afternoon 1 December 2008 and not Monday morning as he maintained. [126] Despite the unchallenged evidence of Drs Rigg and King, and the overwhelming weight of documentary evidence to the contrary, Carroll refused to concede that :  he did not attend Dr Rigg's surgery on 29 November 2008; and  he attended Dr King's surgery on the afternoon of 1 December 2008 and not the morning. [127] When challenged on the records of Medicare, he stated that those records must be wrong, making only a small concession that he may have collected the prescription the next day which was contrary to his evidence-in-chief. [128] On the evidence that clearly shows that Carroll did not attend Dr Rigg on 29 November 2008 and did not attend Dr King in the morning of 1 December 2008, and with Carroll's refusal to accept that he could be wrong even when challenged exhibited a stubbornness or level of unreasonableness, means the Commission ought consider his evidence with healthy suspicion. [129] The submission questioned the failure of Carroll to complete an incident report considering that he had regularly completed incident reports including for what had been described as a "near misses". The obvious explanation was said to be that "the incident did not happen" as alleged. [130] On the question of the evidence given by McLay about his first conversation with Carroll after 28 November 2008, it was argued that the Commission should prefer that evidence over Carroll's version. That evidence was that:  Carroll advised that he had been to the doctor and would call him (McLay) later that day.  Carroll did not say "how, when, where" something had happened on the previous Friday.  In a contemporaneous document [Exhibit 35], completed by McLay at about the same time of his conversations with Carroll he recorded: "The Employee notified me of a back complaint this morning from phone on his way to doctor says it stated on Saturday, was due to work on the Saturday (and did not notify us he was not coming in)". The contemporaneous document, whilst inconsistent with McLay's oral evidence which was based on recollections of almost four years after these conversations, should be preferred.  Importantly, neither the document nor McLay's evidence-in-chief indicate that Carroll had told him anything about the cause of his injury. [131] McLay had made previous statements in March 2009 [Exhibit 38] and June 2011 [Exhibit 39] and had made the comment that he believed Carroll to be truthful, which is not unusual as the pair had known each other for 27 years. [132] In relation to the statement [Exhibit 38] which was given in respect of an earlier claim, it is consistent with the previously mentioned contemporaneous document in that Carroll did not tell McLay anything specific about any incident occurring on 28 November 2008. The statement indicated that Carroll had told McLay he had a back complaint that had started on the Saturday. [133] The submission turned to documents completed by Carroll which included:  the Notice of Claim [Exhibit 1];  the Statutory Declaration [Exhibit 13];  the Application for Worker's Compensation (1 December 2008) (Carroll agreed that the Application had not mentioned an incident on 28 November 2008); and  the Application for Compensation (signed by Carroll - 3 March 2009) [Exhibit 14]. [134] Under cross-examination, in what was described as an "extraordinary exchange", Carroll's evidence was that he did not read any of the documents he signed because he trusts people. On that basis, it was submitted that the Commission could not rely upon any document signed by Carroll as being true and accurate and, in fact, the Notice of Claim is not reliably his document. -- 16 of 20 -- 17 sence. [135] The submission dealt with the failure of Grimmett to given evidence, despite being named as a witness to the alleged incident in the Notice of Claim suggesting that, in the circumstances, it is proper for the Commission to apply the rule in Jones v Dunkel12, particularly as there was no evidence either in affidavit or oral form to explain his ab [136] The OneSteel delivery documents, which was the subject of Stretton's evidence, were records of trucks unloaded at the premises of OneSteel Limited and had been taken from archival records by Stretton who, at the time of the alleged incident, was the person responsible for stock control. Stretton gave evidence that he could not find any document that, in his view, related to a load being received on 28 November 2008. He had given further evidence about the procedures for unloading trucks and how the paperwork trail operated. This evidence, coming from his close and intimate knowledge of the system, is relevant and of considerable weight. [137] Of those documents [Exhibits 27 and 28] identified by Stretton, they were shown to Carroll when cross- examined with him accepting that it was not the sort of load had described for 28 November 2008. In relation to other OneSteel documents [Exhibits 24, 25 and 26], it was accepted by Carroll that they were not the load subject to his allegations. Additionally, other similar documents were the subject of Stretton's evidence and shown to Carroll in cross-examination. There was some argument about Exhibit 32 which had born Grimmett's signature (confirmed by Carroll) with Carroll accepting that this did not relate to the truck in his incident. [138] At the close of cross-examination of Carroll on the documents relating to truck arrivals, the following exchange occurred: "Hampson: Mr Carroll, what I put to you is what I've shown you, all the load records that are in the possession of OneSteel Limited for all incoming loads from 27 November 2008 to 2 December 2008. Now none of those documents, you would agree, that I have shown you, are a load that you say you were unloading on 28 November 2008. Carroll: That's right, yeah.". [139] Despite there being no record that the truck was definitely there, Carroll's evidence was that it was absolute that it was there and the records were wrong. [140] In terms of the relevance and weight of these documents, it was submitted that it was not for OneSteel to prove that the incident alleged by Carroll did "not" occur, but for Carroll to prove that the incident "did" occur. Nevertheless, the documents tendered through Stretton were the same documents shown to Carroll in cross- examination and do not, on Carroll's evidence, corroborate his assertion that he was unloading a semi-trailer loaded with steel on 28 November 2008. [141] Any doubt that may be created around the detail of these documents was said to not at all help the Appellant who had failed to produce a single corroborating witness or a single contemporaneous corroborating document supporting Carroll's assertions that he unloaded a semi-trailer on 28 November 2008. If the Commission was minded to believe Carroll that the records of OneSteel were wrong, it would be unsafe in that Carroll had, in evidence, stated that the records of Dr King, Dr Rigg, Medicare and PBS were also wrong when it was demonstrated they were not. [142] In conclusion, it was stated that Carroll's Appeal proceeds on the basis that he suffered an injury in a specific incident at work on 28 November 2008 at around 1.30 p.m. [143] It was further stated:  the only alleged witness to the incident has not given evidence;  no lay witness has corroborated this allegation;  McLay's evidence does not corroborate Carroll's story;  contemporaneous medical evidence does not corroborate his allegations;  Carroll's other evidence about events immediately following the incident (related to medical treatment) is clearly shown to be wrong; and  Records kept by OneSteel do not support Carroll's assertions. [144] For the Appeal to succeed, the Commission must believe Carroll despite his lack of corroborating evidence and in the face of evidence showing his evidence to closely related matters cannot be trusted. OneSteel submits that Carroll has failed to prove, on the balance of probabilities, that the alleged incident occurred, therefore that he suffered an "injury" as a result of an event at work on 28 November 2008. 12 Jones v Dunkel [1959] 101 CLR 298 -- 17 of 20 -- 18 Conclusion [145] The Appellant, in seeking to have the decision of Q-COMP set aside, bears the onus of proof in convincing the Commission that decision was wrongly made. [146] In this matter, it is not of question that Carroll, for the purposes of s. 11 of the Act, was a "Worker" at the time of the alleged incident on 28 November 2008. In terms of whether Carroll had suffered an injury in accordance with s. 32 of the Act, both Q-COMP and OneSteel, in the course of the proceeding, conceded that Carroll has an injured back. However it was not conceded that the injury had occurred in the course of his employment. Q-COMP, in submissions, indicated that there was only "one live issue" for determination, and that is whether the Commission can be satisfied, on the balance of probabilities, that Carroll hurt his back in the manner described whilst at work on 28 November 2008. The submission stated that if the Commission is so satisfied, then that is the end of the matter because clearly the injury would have happened in the course of employment and that employment would have been a significant contributing factor. [147] The Commission, in the early stages of the hearing, rejected an application by Carroll to amend the Appeal Grounds that had been filed with the Industrial Registrar on 23 July 2012, therefore clearly establishing that the matter for determination was whether Carroll had injured his back whilst unloading steel from a semi-trailer on 28 November 2008 and not an injury that had occurred over a period of time. In that application, Carroll had, in a sworn affidavit, identified in paragraph 5 that his back was injured on 28 November 2008 and then further on at paragraph 9 confirmed that he believed the injury was sustained over the course of the months from July 2008 and November 2008 with the symptoms of his injury only commencing on 28 November 2008. [148] Whilst concessions were made that Carroll had suffered a back injury and the Commission was not required to make a finding in respect of whether an injury occurred, it is the case that Dr Pentis, in giving evidence-in-chief upon his examination of Carroll in April 2010, opined that he had sustained injuries to his lower spine and that the injury was consistent with the event described to him by Carroll as having occurred in November 2008. Dr Pentis, in the cross-examination phase of his evidence, accepted that he had no objective way of determining whether Carroll had given him an accurate history and conceded that the injury suffered could have been the product of a number of activities. [149] In the course of consultations with Drs King, Rigg and Craddick, they had all diagnosed that Carroll had some form of back injury and prescribed various forms of pain relief medication. In the case of Dr Craddick he had, in 2009, diagnosed Carroll as suffering from depression. [150] The evidence before the proceedings was that Carroll was unloading a bundle of steel from a semi-trailer at OneSteel's premises at around 1.30 p.m. on 28 November 2008 and whilst pulling a chain, felt a "tightening sensation in his back". He stated that he had mentioned the incident to a fellow employee, Grimmett. The evidence of Carroll on what he said to Grimmett was not able to be corroborated in the course of proceedings as Grimmett was not called by Carroll to give such evidence. It is of record that Counsel for Carroll made submissions from the bar table on the inability to locate Grimmett who no longer works for OneSteel, but as argued by those opposing the Appeal, there was no affidavit or oral evidence for the Commission to consider on that matter, with the Commission being requested to make an adverse finding in line with Jones v Dunkel13. Whilst the Commission is not prepared to make a finding that Carroll deliberately chose not to call Grimmett, it must be said that his absence is not of assistance to the prosecution of the Appeal. Carroll completed his shift, ceasing work around 2.00 p.m. It is of fact that despite having been a diligent employee in respect of previously completing incident reports for an array of incidents over the course of his employment, including a number which were described as "near misses" and not of a type that caused injury, he did not complete an incident report prior to leaving work and was unable to satisfactorily explain this failure, except to say "he wished he had've". [151] Carroll stated that on arriving home, he placed a heat pack on his back and took some pain killing medication. The next morning (29 November 2008) he had been rostered to attend for work, but due to the injury to his back, he instead visited Dr Rigg that morning where he was prescribed medication and upon leaving the Medical Centre, had the prescription filled at a Chemist situated near the Medical Centre where he had received his treatment. The clinical notes of Dr Rigg indicated that Carroll attended on 30 November 2008 and when questioned by Dr Rigg as to the possible cause of his injury, was unable to recall anything particular that may have caused his back to become sore, except that for a few weeks prior he had suffered a sore back. The clinical notes had no record of Carroll indicating that there had been an incident at work on 28 November 2008. Also Dr Rigg's notes did not indicate that he had issued a Medical Certificate on that day. Carroll was adamant that he visited Dr Rigg on 29 November 2008, despite the Medical Centre records, Medicare and PBS all confirming 13 Jones v Dunkel [1959] 101 CLR 298 -- 18 of 20 -- 19 that the visit had been made the following day being 30 November 2008. The evidence before the proceedings is of a level to confirm that the consultation with Dr Rigg was on 30 November 2008. [152] Carroll then visited Dr King on the afternoon of 1 December 2008 (confirmed in Dr King's clinical notes) and not in the morning as suggested by Carroll, where an examination was undertaken whereby Dr King diagnosed that he had a lumber disc injury. Dr King, in evidence, confirmed her records made no mention of an acute event occurring on 28 November 2008 and it would have been out of the ordinary if Carroll had informed her of such an incident and she had not noted the event. Carroll's evidence was that he was prompted by Dr King to make a Workers' Compensation claim and did so, further following a directive of Dr King to put in the claim that the incident took place in June or July 2008. Dr King gave evidence that she was surprised at Carroll's evidence that she had, on 1 December 2008, directed him to put the date of injury on a Workers' Compensation claim form as being in June 2008. Dr King gave evidence that she had never seen a Workers' Compensation claim form. The evidence of Dr King, in terms of the time of Carroll's visit and his claim that she had directed him to put a particular date on the Workers' Compensation claim was at odds with that of Carroll. [153] It was at around this time that Carroll informed McLay that he had injured his back and would be off work for two weeks. Carroll at that time, according to McLay, provided no specifics about any activity he had been undertaking on 28 November 2008. McLay, after his conversation, checked to see if an incident report had been completed and was unable to find one. McLay's evidence was that Carroll was familiar with the incident report process as "he had filled out plenty before". McLay had filled out a "report only" report on 1 December 2008 but this was never changed to an incident report. [154] It was acknowledged by Carroll in cross-examination that he did not (at the time) make a Workers' Compensation claim in respect of any injury arising out of an incident on 28 November 2008. [155] In evidence, Carroll offered a version of the processes involved with the unloading of vehicles that delivered product to the OneSteel premises. The evidence referred to obtaining a delivery docket from the driver of the vehicle and confirming that the load was consistent with the information contained within the delivery documentation. [156] The evidence of Stretton was somewhat similar in respect of those procedures. Carroll, in cross-examination, was questioned at length in relation to the paperwork associated with the unloading duty and, in particular, was presented with a number of delivery dockets relating to loads said to have arrived around 26 and 27 November 2008. It was confirmed by Carroll that none of the documents identified a vehicle being unloaded on 28 November 2008. Stretton, in his evidence, was taken through a number of documents which identified the dates trucks had arrived at the OneSteel premises for the purposes of being unloaded. The documents contained information relating to the weight and description of the product and a received stamp. The documents in question were obtained in a search of the company archives carried out by Stretton who had searched for documentation on inward goods received between July 2008 and December 2008. Stretton's evidence was that despite the painstaking search of OneSteel records, he could not find any that related to a truck being unloaded on 28 November 2008. McLay, in cross-examination, accepted that it was possible for delivery documentation to go missing, but in his time with OneSteel he had never experienced paperwork to a whole semi-trailer load of material go astray. Carroll's response to the lack of documentation was that the records were wrong. Finding [157] Upon consideration of the evidence, submissions and material before the proceedings, the only task for the Commission is to determine whether, on the balance of probabilities, Carroll injured his back whilst unloading a semi-trailer loaded with steel on 28 November 2008. [158] In the prosecution of the Appeal, the only evidence adduced in the proceedings relating to the alleged incident was that of Carroll, and in the absence of corroborating evidence of Grimmett (said to have been informed by Carroll of the injury at the time of the event), it is necessary to examine Carroll's evidence, particularly as issues have been raised in respect of his credit. [159] The evidence given by Carroll about his consultation, firstly with Dr Rigg and then Dr King, is crucial in that this occurred around the time of the alleged incident on 28 November 2008 and therefore contemporaneous. In addition there is the benefit of the clinical notes and records kept by each of the practitioners of those consultations. The oral evidence of both doctors was contradictory to that given by Carroll, particularly as it related to the date of the visit to Dr Rigg and the time of the consultation with Dr King. In the case of his attendance with Dr Rigg on 30 November 2008, Carroll was adamant that the visit had occurred on the previous day, despite the fact that the Medicare, PBS and Medical Centre records, all computer based, have him attending on 30 November 2008. Carroll simply advanced the position that all the records were wrong. Carroll had also, on the evidence of Dr Rigg, made no mention of any event on 28 November 2008. -- 19 of 20 -- 20 [160] The evidence of Carroll that, in the course of his consultation with Dr King, he was directed to fill in a Workers' Compensation claim form identifying the date of injury as June 2008, beggars belief in that this was done three days after the alleged incident was said to have occurred on 28 November 2008 and would have been fresh in his mind. Dr King was unequivocal in that no such advice was given to Carroll and further that during the visit with her on 1 December 2008 he had made no mention of any event that may have occurred on 28 November 2008 that could have been causative of his back injury. Dr King's evidence that no such advice was given to Carroll is preferred by the Commission to that of Carroll and questions, in a serious way, the credibility of his evidence before the proceedings, especially as it relates to such a significant issue. [161] The major issue of contest between the parties that emerged in the course of the proceedings was whether or not there was a semi-trailer load of steel that arrived at the OneSteel premises on 28 November 2008. The Appellant relied upon only the evidence of Carroll (uncorroborated by Grimmett) to indicate that such a load did arrive on the date in question and that whilst unloading the truck, Carroll had injured his back. OneSteel, through the evidence of Stretton, tendered numerous inward delivery documentation, all of which was put to Carroll who, in cross-examination, accepted that not one of those documents related to the load he said had arrived on 28 November 2008. Stretton's evidence was that he had conducted a painstaking search of OneSteel's archives for delivery documents for the period June to December 2008 and there was no such document that confirmed a load of steel, as described by Carroll, had arrived at the premises and been unloaded on 28 November 2008. The position of Carroll was that the OneSteel records were wrong. [162] The Commission accepts the evidence of Stretton in regards to the search undertaken by him of the OneSteel inward documentation for the period as it related to the dates of 26 November to 1 December 2008 that there was not a semi-trailer load of steel unloaded on the premises of OneSteel on 28 November 2008 and, as such, it was not possible for Carroll to have injured his back as claimed in the absence of that truck. [163] Whilst the issue of the credit that should be given to Carroll's evidence is certainly enlivened by the contradictory evidence given by Drs Rigg and King, it is also of note that Carroll's work history showed that he was proficient at having completed a number of incident reports throughout his employment for a multitude of events, some of which were not causative of injury, and they had always been completed prior to leaving the employers premises on the day in question. In this case, it is alleged that "he felt a little ping in his back" requiring him to hop down from the truck and he then raised the matter with Grimmett, yet failed to adhere to what had been a common practice of completing an incident report and then offers no reasonable explanation as for the reason to depart from past practice. It is open, in the circumstances, for the Commission to draw the inference that the reason for not completing an incident report on 28 November 2008 was that there was no incident. [164] Consequentially, in the prosecution of the Appeal, Carroll has failed to establish, on the balance of probabilities that he suffered an injury to his back on 28 November 2008 arising out of, or in the course of, employment and that the employment was a significant contributing factor to the injury and, on that basis, the Appeal must fail. [165] The Appeal is dismissed and the decision of Q-COMP to confirm the decision of the insurer stands. [166] I reserve the matter of costs. [167] I order accordingly. J.M. Thompson, Commissioner. Hearing Details: 2012 25 to 27 July 30 August 14 September Released: 14 September 2012 Appearances: Ms O. Perkiss of Counsel, instructed by Ms M. Singleton of Everingham Lawyers for the Appellant. Mr F. Lippett of Counsel, instructed by Q-COMP. Mr G. Hampson of Counsel, instructed by Ms V. Blacker of Piper Alderman for OneSteel Limited. -- 20 of 20 --