Bulman v Q-COMP and Rockhampton Regional Council [2010] QIRC 39

CITATION: Steven Marc John Bulman AND Q-COMP and Rockhampton Regional Council (WC/2009/73) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission Steven Marc John Bulman AND Q-COMP and Rockhampton Regional Council (WC/2009/73) COMMISSIONER ASBURY 30 June 2010 DECISION Appeal against decision of Q-COMP - Medical evidence does not establish on balance of probabilities that an injury as defined was sustained - Conduct of appellant at or around the time of alleged injury does not establish existence of injury in the absence of medical evidence - Appeal dismissed. Overview [1] On 1 June 2008, Steven Marc John Bulman submitted a notice of claim for damages under s. 275 of the Workers' Compensation and Rehabilitation Act 2003 (the Act), for a back injury. Mr Bulman was employed as a trades assistant/tyre fitter by the Rockhampton City Council (now the Rockhampton Regional Council) from August 2003 until April 2008. In a decision of 17 March 2009, WorkCover rejected the notice of claim for damages on the ground that Mr Bulman had not suffered an injury in accordance with s. 258 of the Act. By application made on 11 June 2009, Mr Bulman sought a review of that decision. On 11 August 2009, the Q-COMP Review Unit confirmed the decision of WorkCover. Mr Bulman appeals against that decision. Evidence in the appeal was given by Mr Bulman and: • Mrs Deborah Jane BULMAN, Mr Bulman's mother; • Doctor Scott CAMPBELL, Neurosurgeon; • Neville William PITCHER, Foreman Mechanic, Rockhampton City Council; and • Murray George FINDLATER, Transport Inspector, Department of Main Roads, formerly a motor mechanic for the Council from 1995 to January 2007 and the workplace health and safety representative for the workshop where Mr Bulman worked. When the transcript of proceedings was provided, it was apparent that parts of the evidence of Doctor Campbell were indistinct and could not be transcribed. I have referred to my notes on Doctor Campbell's evidence. Copies of these will be provided to the parties upon request, following the release of this decision and are included on the file. Evidence for Q-COMP was given by: • Doctor Matthys KRITZINGER, General Practitioner; • Doctor Gregory Alan DAY, Orthopaedic Surgeon; and • Doctor Peter Bruce STEADMAN; Orthopaedic Surgeon. Evidence The incident on 27 July 2006 [2] Mr Bulman's evidence was that he sustained the alleged injury on 27 July 2006, at around 1.30 pm, when he changed the tyre on a grader at a landfill site at Lakes Creek Road. Mr Bulman attempted to lift the spare tyre off the back of a utility, and then made a counter balance from pieces of wood, which he used to manoeuvre the tyre. The tyre weighed 318 kg. There was no direct evidence about Mr Bulman's weight at the time. However, in his report (Exhibit 10) Doctor Steadman notes that Mr Bulman's weight had decreased from 82 kg to 71 kg between February 2007 and February 2008. It can be inferred that when Mr Bulman lifted the tyre on 27 July 2006, he weighed approximately 82 kg. [3] While he was picking the tyre up, Mr Bulman said that he felt the muscles in his lower back "lock up at once" and an aching pain like all of his muscles had stuck together. Five or ten minutes later, Mr Bulman drove back to the depot, and his back continued to ache. Upon returning to the depot, Mr Bulman unloaded the utility and told the Workplace Health and Safety Representative Mr Findlater, that he had hurt his back. Mr Findlater confirmed that Mr Bulman told him that he hurt his back while changing tyres on a grader down at the dump on Lakes Creek Road. Consultation with Doctor Kritzinger on 27 July 2006 [4] In his notice of claim for damages Mr Bulman said that he saw Doctor Kritzinger on 27 July 2006 for the injury that occurred on that day. In his evidence to the Commission, Mr Bulman said that he left the workplace before 3.00 pm on 27 July 2006, to attend an appointment with Doctor Kritzinger and that the appointment had been -- 1 of 14 -- 2 made earlier in the week, as Mr Bulman was suffering from a bad case of the "flu". Mr Bulman's mother attended the appointment with him because at the time he was also suffering from anxiety, and became anxious in small rooms. According to Mr Bulman's evidence, he told Doctor Kritzinger during the consultation on 27 July 2006 that he had a "really really sore back" as well as describing flu symptoms such as a sore throat, sore ears, tired eyes and a runny nose. Doctor Kritzinger typed on his computer during the consultation and said that aches and pains came with the "flu". Mr Bulman maintained that Augmentin Duo Forte prescribed by Doctor Kritzinger as a result of this consultation was a painkiller, and that he was prescribed Augmentin Forte every time he went to the Doctor for a sore back. [5] Although maintaining under cross-examination that he told Doctor Kritzinger that he had a sore back, Mr Bulman agreed that he did not tell Doctor Kritzinger about the cause of that pain. Mr Bulman also agreed that he was aware that there was a connection between removing the tyre and the back pain, and that on other occasions when he had gone to the doctor about a sore back, he had told the doctor what caused the sore back. In response to the proposition that he knew at that time that he could claim compensation for a work-related injury, Mr Bulman said that he did not know that this was the case until 2007. [6] Mrs Bulman said that she remembered Mr Bulman telling Doctor Kritzinger that he had a sore throat and back ache, but could not remember what else Mr Bulman said at the consultation, or what Doctor Kritzinger said in response. Mrs Bulman agreed under cross-examination that she had attended a large number of medical practitioners with Mr Bulman from 2005 onwards, and she could not now recite all the conversations he had with them. In response to the proposition that she might be in error about what Mr Bulman said to Doctor Kritzinger on 27 July 2006, Mrs Bulman said that she could not be in error because that was the start of Mr Bulman's back problems. [7] Doctor Kritzinger said in his evidence that it was his practice to take notes on his computer during consultations with patients, with the objective of documenting as accurately as possible, the complaints patients conveyed to him. In relation to the record dated 20 April 2005, indicating that Mr Bulman reported that he fell on his back at basketball and hurt his coccyx, Doctor Kritzinger said that this would indicate that Mr Bulman used this as his initial complaint at the outset of the consultation. [8] On 27 July 2006, the history in relation to Mr Bulman's attendance on Doctor Kritzinger states: "Sore throat, painful left ear, Sofradex/Ceclor not helpful. Still getting headaches - no improvement since on Endep.". [9] The notes indicate that Augmentin Duo Forte was prescribed. Doctor Kritzinger said in his evidence that Augmentin Duo Forte is an antibiotic. In response to the proposition that Mr Bulman told him that he was suffering from back pain, Doctor Kritzinger said that it would be impossible to document every single word that a patient said during a consultation, but that he tried to reflect the main reason for the consultation in his history. Doctor Kritzinger agreed that he would recall if he was told by a patient that the patient had been injured at work, as this would probably be the main reason for the visit. Further Doctor Kritzinger agreed that if a patient told him this, he would make a suggestion in relation to a patient's ability to claim workers compensation. [10] In cross-examination, Doctor Kritzinger agreed that it would be an impossibility to document all symptoms at all times, particularly when they were not the main reason or part of the main reason for the consultation. In relation to the notes for the consultation with Mr Bulman on 27 July 2006, Doctor Kritzinger said that a lay person or a patient might see some of the symptoms as being consistent with the "flu". Such symptoms could also include aches and pains across the body. In response to the proposition that if Mr Bulman had told him that he had flu-like symptoms, sore throat, painful left ear and a really, really sore back, that he may have considered the back complaint to be part of the "flu" symptoms, Doctor Kritzinger said that he would still have been inclined to make a note of the sore back. Doctor Kritzinger conceded that it was a possibility that if the back pain was mentioned at a later stage in the consultation and did not appear to be prominent at the outset, he may have not documented it. [11] Mr Bulman's medical records after the consultation on 27 July 2006, indicate that he told Doctor Kritzinger about lower back pain on 21 August 2006, and that he was attending a physiotherapist for that pain. On 11 November and 8 December 2006, Mr Bulman reported painful joints and back pain. Mr Bulman continued to report back pain during consultations on 23 February, 7 March, 16 April and 25 May 2007. Events after the incident of 27 July 2006 [12] Mr Bulman said in his evidence that he had a rostered day off on 28 July 2006, and did not do much, other than applying hot and cold packs to his sore back. On the following Monday, Mr Bulman returned to work, but had some time off during August because of his sore back. Mr Bulman also said that he was struggling to perform his normal duties in the two months following the incident on 27 July 2006. In particular Mr Bulman said that after that incident he could not do a lot of things he had previously been able to do and had difficulty bending down and lifting things. Mr Bulman said that the pain in his back was intense and unlike any he had previously experienced, and he had difficulty relieving that pain. Mr Bulman said that his back felt tight and as if a nerve is -- 2 of 14 -- 3 pinched and that his back ached. In addition, Mr Bulman said that his muscles felt tired and his back would not unlock after stretching. [13] Mr Findlater said that after the incident of 26 July 2006, he could remember Mr Bulman telling him about his back a few times. Mr Findlater acted in the position of foreman and while doing so did not give Mr Bulman any jobs where he would injure his back further. Under cross-examination Mr Findlater agreed that he had not put Mr Bulman on a suitable duties program. Mr Findlater also agreed that Mr Bulman did not tell him that he hurt his back playing basketball and that he did not know anything about a reported injury sustained by Mr Bulman on 7 March 2005, while lifting an oil drum. According to Mr Pitcher, Mr Bulman's work performance went downhill after the incident of 27 July 2006, and he was unable to perform some of the tasks required in his role servicing vehicles. Mr Pitcher also said that there were a number of instances prior to July 2006 when Mr Bulman had four or five consecutive days away from work on sick leave, and in one instance this was for a sore back. [14] Under cross-examination, Mr Pitcher agreed that Mr Bulman told him that there were things he could not do. Mr Pitcher also agreed that Mr Bulman had a history of taking sick leave and that there was a pattern in relation to this. In response to the proposition that Mr Bulman's pattern of taking sick leave did not alter from 2004 until his employment ceased in 2008, Mr Pitcher said that Mr Bulman took more sick leave towards the end of his employment in 2008, and that this may have been as a result of a back injury. Mr Pitcher also agreed that it was not until February 2007 when Mr Bulman submitted a claim for workers' compensation, that he started working less hours and performing restricted duties. Prior to that time, Mr Bulman worked his normal working week and performed his normal duties. Mr Bulman said that he told Mr Pitcher about the incident on 27 July 2006 a week after it occurred, as Mr Pitcher was absent from the workplace. Mr Pitcher confirmed that he became aware of the incident involving Mr Bulman approximately one week after it occurred, when he returned to work, either in late July or early August. [15] Mr Bulman did not lodge a formal incident report about the incident of 27 July, until 16 October 2006. Mr Bulman said that he did not do so because workers at the Council had been told there would be a free barbeque if they went for three months without an incident report being filed, and he did not want to be responsible for the barbeque not being held, fearing that he would be picked on by his colleagues. Mr Bulman said that eventually he completed an incident report on 16 October 2006, after being asked to do so several times by Mr Findlater, and being told by Mr Findlater not to worry about the barbeque and to look after himself. Mr Bulman said under cross-examination that the announcement about the free barbeque was made in July 2006, and that he had filled in the form before the three month period expired. Mr Bulman also agreed that in 2005 and 2007 he had not been concerned about filling in incident forms. [16] Mr Findlater confirmed that he told Mr Bulman several times to complete the incident report and finally got to the stage where he told Mr Bulman that he needed to submit the report to cover himself in the event that he had a serious injury. Mr Findlater said that he could not recall a practice at the Council of throwing a free barbeque for workers when there was a period without an incident report being filed but was aware that there was talk about this and that the practice had been implemented by other employers in the Rockhampton area. Mr Findlater also said that he could recall a suggestion about a free barbeque being made in late 2006 after Mr Bulman reported that he hurt his back. [17] Mr Bulman said that he raised the injury to his back at "toolbox" meetings and made a request during such a meeting for a tailgate loader to be mounted on to the back of a vehicle for the purpose of lifting tyres. The minutes of a "toolbox" meeting on 2 August 2006 record an item in the following terms: "When compressor is used on call out ute no room for large tyres (Suggested cut toolbox in half for more space)." (Exhibit 8). Mr Bulman maintained under cross-examination that he suggested that the compressor toolbox be cut in half to enable the crane to be used to lift large tyres so that employees did not hurt their backs. Further, Mr Bulman maintained that he told everyone at that meeting that he hurt his back. Mr Pitcher said that he could recall Mr Bulman making the request to change the design of the compressor on the back of a vehicle, and put in a request to management to allocate funds for this purpose. Previous injuries [18] In the notice of claim for damages, Mr Bulman indicated that he had sustained a number of other personal injuries before the event in respect of which the claim for damages was made, as follows: • A back injury in 2001 while playing basketball at State League National Titles, for which Mr Bulman had one month off playing basketball and five sessions of physiotherapy; • Pain in his back in April 2005 while lifting an oil drum at work, after which Mr Bulman had 14 sessions of physiotherapy, consulted his general practitioner Doctor Kritzinger and attended the Hillcrest Hospital, but only took a few days off work; and • Ongoing back pain since July 2006. -- 3 of 14 -- 4 [19] Mr Bulman said in his evidence that in 2001, he fell over while playing basketball for Queensland in a national competition. As a result Mr Bulman had a few sessions of physiotherapy at the tournament and then some more sessions when he returned to Rockhampton. After this injury Mr Bulman had pain in his lower back which moved up the sides and middle of his back to his shoulders, and also suffered from headaches. These symptoms differed from those Mr Bulman suffered after the incident on 27 July 2006, and he said that he did not feel much pain in his neck and shoulders after the later incident. Under cross-examination, Mr Bulman said in 2001 he had been playing basketball for ten years and had fallen over on the court previously, as often as once per game. Mrs Bulman maintained that Mr Bulman did not put his back out playing basketball in 2001, stating that this was a minor event. Mr Bulman played basketball in 2002, 2003, 2004 and 2005. Mr Bulman stopped playing basketball in April 2005 before the season began, as he was getting headaches. Mr Bulman also played competition cricket, tennis and soccer and gave up these sports at around age thirteen. Mr Bulman refereed basketball games and ceased to do this in late 2005 because he was suffering from headaches and could not concentrate. [20] A note made by Doctor Kritzinger (Exhibit 6) of a consultation on 20 April 2005 records in relation to Mr Bulman: "hurt back - basketball - fell on back - hurt coccyx...has been to Barry Griffin already - no relief pain in lower back, radiating up to shoulder, neck area lightheaded dizzy/headachy at present.". [21] Mr Bulman also gave evidence about an incident on 7 March 2005 when he was injured at work while lifting an oil drum. This injury caused Mr Bulman to suffer pain in his lower back for approximately one month. However, Mr Bulman did not stop performing his normal duties at work. Under cross-examination Mr Bulman said that he completed an incident report a few hours after this injury stating: "Was tight at beginning of work - set off when lifting 20 lt oil drum from rack became sore when unloading and loading tyres from forklift before smoko and is still strained whenever slight pressure is put on lower back." (Exhibit 1). [22] Mr Bulman said that he could not be sure whether the reference to being tight related to his back, but agreed that what was set off by lifting the drum was the strain in his back. On 16 March 2005 Mr Bulman attended an "after hours" consultation with Doctor Sally Buchan. The note made by Doctor Buchan in relation to that consultation recorded that Mr Bulman stated that he put his back out playing basketball over the past three days, and had pain in his neck, headache, nausea and was lightheaded. The notes also record that Mr Bulman stated that he had attended physiotherapy. (Exhibit 5) Mr Bulman said that he attended a chiropractor, Mr Griffin, that day and the day before, and that this treatment caused his back pain to flare up so that he consulted Doctor Buchan. As a result of that consultation, Mr Bulman had x-rays of neck, thoracic and lumbar spine taken the next day. [23] Mr Bulman was asked in cross-examination why he did not mention the work injury of 7 March 2005, during the consultation with Doctor Buchan, and said that whenever he was questioned about how he first hurt his back, he would say basketball, because of the injury in 2001. Mr Bulman also said that he was not playing basketball after he hurt his back lifting the oil drum and he could not explain why he said he was playing basketball on 16 March when this was not the case. When asked whether he ceased playing basketball after the injury on 7 March 2005, Mr Bulman said that he stopped playing for a little while in March 2005 and then went back to training in April, but did not play any fixtures. Mr Bulman agreed that he hurt his back training for basketball. Mrs Bulman said that Mr Bulman was not playing basketball in March 2005, but was playing in January that year and gave it up due to neck pains and headaches. Mrs Bulman said that Mr Bulman may have injured his back in January and been suffering neck pain in March. [24] Mr Bulman also agreed that in April 2005 when he saw Doctor Kritzinger, he had not been told to make an application for workers' compensation notwithstanding that he claimed to have told Doctor Kritzinger that he suffered a workplace injury in March. Further, Mr Bulman agreed that after seeing Doctor Kritzinger in April 2005 he had a CAT scan and a series of 14 physiotherapy treatments, which were paid for either by him or his parents. Mr Bulman maintained that he did not know that he could make a claim for workers' compensation for the March 2005 injury in respect of these expenses. Mr Bulman could not remember whether documents he completed in relation to the CAT scan had asked whether the injury had been suffered at work. [25] Doctor Kritzinger's records in relation to Mr Bulman were Exhibit 6. There are a number of records relating to pain in Mr Bulman's back and neck and indicating that Mr Bulman suffered from headaches. On 20 April 2005, the records indicate that Mr Bulman reported falling on his back while playing basketball and hurting his coccyx and that his symptoms included local tenderness in his lumbar spine. On 8 July 2005, among other symptoms, Doctor Kritzinger records that Mr Bulman had local tenderness of his cervical spine. On 21 August 2006, Mr Bulman attended Doctor Kritzinger complaining of lower back pain. The history indicates that Mr Bulman was attending a physiotherapist for back pain and needed a medical certificate. On 23 February 2007 there is a record of Mr Bulman attending Doctor Kritzinger for musculo-skeletal pain, and being given exercises for his lower back/thoracic spine and neck. On 7 March 2007 Mr Bulman consulted Doctor Kritzinger about lower back pain, said to be aggravated by bending and lifting. On 12 March 2007, Mr Bulman again attended Doctor -- 4 of 14 -- 5 Kritzinger with reasons for the visit being recorded as upper respiratory tract infection and lumbago (or lower back pain). Mr Bulman attended Doctor Kritzinger (and on occasion Doctor van Heerden) for back strain on 30 March, 16 April, 11 May, 5 June, 28 June, 29 October, 29 November, 11 December, 20 December 2007. During this period Mr Bulman's medical records also indicate that he attended for other reasons including anxiety, depression and vertigo. These attendances continued in 2008 on 14 January, 24 January, 22 February, 26 March and 21 July. [26] Mr Bulman said that in the month before the injury on 27 July 2006, he was not suffering any pain in his lower back and was pretty much back to normal. In the weeks prior to the injury on 27 July 2006, Mr Bulman said that he renovated and painted his house, and was performing all of his normal duties at work. Other applications for compensation [27] In March 2007, Mr Bulman lodged an application for compensation for an injury said to be a strain to his back (Exhibit 3). The injury is said to have happened in the workshop in Dooley Street and to have been "ongoing" and to have been reported to Mr Bulman's supervisor on 26 February 2007. Mr Bulman also completed an incident report form on 5 March 2007 (Exhibit 4) at the same time as the application for compensation. The incident report stated that Mr Bulman hurt his back through continuously lifting heavy objects - tyres and oil bottles - throughout the day. Mr Bulman agreed that he completed both the application for compensation and the incident report form at the same time, and that neither document made any mention of an incident in July 2006. [28] On 10 January 2008 Mr Bulman filed a further application for compensation for an injury described as strain to his lower back, with pain moving up and down his legs (Exhibit 2). The injury was said to have happened in the Dooley Street workshop and to have been ongoing since February/March 2007. It is also stated that the injury subject of this claim occurred while Mr Bulman was lifting a large grader tyre onto a work ute, and that all Mr Bulman's muscles became tired and sore. In relation to any previous injuries, Mr Bulman stated in the application that the injury was ongoing and started in July 2006. [29] Mr Bulman agreed under cross-examination that the 2008 application for compensation related to the injury on 27 July 2006. Mr Bulman said that when he filled out this application he was told by a manager that as he had already reported this he should just state that the injury was ongoing from the date he last reported the injury. Mr Bulman agreed that he did not include the date of the incident with the grader tyre on that application, other than to refer to the injury starting in July 2006. [30] In the notice of claim for damages filed on 1 June 2008, Mr Bulman stated that: "1. On 27 July 2006 I was manually manoeuvring an AOH grader tyre on to the back of a ute. 2. I was performing this task by myself. 3. The weight of the grader tyre and rim is approximately 318 kilograms. 4. No mechanical lifting device was provided for the lifting of this object. 5. Whilst I was performing this task I felt tightness and tension in my back. 6. I reported this injury to Murray Findlater, the Workplace Health and Safety Officer at work. 7. I then saw Dr Matt Kritzinger at City Heart Medical for this injury on the day of this incident.". [31] It is also asserted in the notice of claim for damages that since injuring his back in 1996 Mr Bulman's physical and social activities have declined, and that Mr Bulman has been forced to give up a number of sporting activities he previously engaged in, as they cause too much stress on his back. Medical Evidence [32] There is contradictory medical evidence about the alleged injury. Doctor Campbell interviewed and examined Mr Bulman on 6 October 2008 for the purpose of providing a medico-legal report at the request of Mr Bulman's legal representatives. That report (Exhibit 7) indicates that there were two work related accidents: • 7 March 2005; and • 27 July 2006. [33] According to the Report Mr Bulman stated that he was involved in a work accident on 7 March 2005 when while lifting a 20kg oil drum he noted the onset of lower back pain. Mr Bulman stated that he was involved in a more severe work accident on 27 July 2006, when he was lifting a grader tyre weighing up to 300 kg, and noted a severe aggravation of the lower back injury while performing this activity. It is reported that Mr Bulman continues to complain of lower back pain and stiffness daily with pain radiating across to both hips and down both buttocks with intermittent thigh pain and leg numbness. Examination of the spine was reported to reveal decreased extension by 30% to 40% with pain and stiffness at the extremity of this movement. There was also tenderness and guarding over the lumbar paraspinal muscles bilaterally. Lower limb power, reflexes and sensation were normal. -- 5 of 14 -- 6 [34] In the opinion of Doctor Campbell: "The accident on 07 March 2005 was consistent with causing a soft tissue musculo-ligamentous injury of the lumbar spine. The lower back injury that occurred in 2001 was minor and has not contributed to the overall impairment. The second accident on 27 July 2006 resulted in a severe aggravation of the injury and symptoms failed to settle. 10% of the impairment can be attributed to the first accident on 07 March 2005 and 90% of the impairment can be attributed to the second work accident, dated 27 July 2006. The current symptoms of lower back pain/stiffness, bilateral hip/buttock pain, thigh pain and intermittent leg numbness are consistent with the injury sustained.". [35] In his evidence to the Commission, Doctor Campbell said that a soft tissue musculo-ligamentous injury will rarely show up on a scan. In relation to the proportion of the injury allocated to the incident on 27 July 2006, Doctor Campbell said that he was largely relying on the history he took from Mr Bulman about the severity of the injury and which injury caused the most symptoms. Doctor Campbell also said that the mechanism of the injury described by Mr Bulman was consistent with the injury, and that lifting a grader tyre up to 300 kg is a heavy lift. [36] Doctor Campbell said that he did not recall reading Doctor Buchan's notes about the after hours consultation with Mr Bulman on 16 March 2005. Doctor Campbell knew about Mr Bulman suffering a basketball injury in 2001, but said that the injury in March 2005 had either been overlooked or not mentioned by Mr Bulman. According to Doctor Campbell, an injury that required three months to heal would need to be taken into consideration and the significance of basketball injuries would depend on how long those injuries lasted. [37] Doctor Campbell confirmed that Mr Bulman reported that he had two weeks off work after the second injury on 27 July 2006, and stated that this probably indicated that Mr Bulman had two weeks off work immediately after the injury. Doctor Campbell also confirmed that Mr Bulman had reported ceasing playing sports such as basketball, after the second injury. In relation to the time delay between the July 2006 injury and his examination of Mr Bulman, Doctor Campbell said that the time supported the existence of the injury and indicated definite chronicity. [38] Doctor Campbell said that Mr Bulman reported tenderness during the examination he conducted on 6 October 2008. Dr Campbell agreed that patients sometimes complained of physical pain, when the underlying problem is psychiatric or psychological. Doctor Campbell also agreed that in the absence of objective signs there was really no way of determining with precision whether that is actually happening to the patient. Doctor Campbell was not aware that Mr Bulman had undergone x-rays and scans of his neck, lumbar and thoracic spines on 17 March 2005, after the first accident. In response to the proposition that he would have been interested to see them, Doctor Campbell said that an x-ray would not have assisted. In relation to the bone scan and the MRI scan Doctor Campbell said that he was only provided with reports, not with the scans themselves. In 5% of cases Doctor Campbell would write a medico legal report without seeing any original radiological investigation, and while this was not unusual, it was not the best case scenario. [39] Doctor Day prepared a report in relation to Mr Bulman at the request of the Queensland Local Government Workcare Scheme, dated 18 May (Exhibit 9). In that report Doctor Day answers a series of questions and states that Mr Bulman reported that he injured his back as a tyre fitter while employed by the Rockhampton City Council and that the incident which caused most of his symptoms occurred in late July 2006 while Mr Bulman was lifting a tyre. According to the report, Mr Bulman stated that the tyre weighed 50kg, and that after the injury he continued to work but took Nurofen and Panadol. Mr Bulman also stated that there was no specific incident on 26 January 2007, but at that time Mr Bulman was unable to continue duties because of continuing lower back pain, and consulted his general practitioner Doctor Kritzinger. With respect to the relationship between the injury and employment, Doctor Day stated: "There are some pre-existing problems in Mr Bulman's lumbar spine which date back to the year 2001. Mr Bulman was symptomatic in 2001 and 2002 as well as 2005, although Mr Bulman stated that the incident in 2005 occurred after he lifted an oil drum at work. It is conceivable that Mr Bulman injured his back in late July 2006 after lifting a 50 kg grader tyre.". [40] Doctor Day goes on to indicate in relation to factors outside employment relevant to the injury that Mr Bulman hurt his back playing basketball in 2001; had a sore back for three months; and had physiotherapy at the time. Mr Bulman also stated that he had imaging and scans of his spine in 2002. Doctor Day noted that after the incident in April 2005, Mr Bulman also had a CT of his lumbar spine and stated that there were no disc protrusions or injuries noted. Doctor Day stated that this past history of back pain may have had an effect on Mr Bulman's current work incapacity. In relation to the question of whether there are pre-existing conditions relevant to the injury, Doctor Day states that the incidents in 2001 and April 2005 are relevant. [41] After reviewing an MRI report of 5 June 2007, Doctor Day prepared a further report dated 15 June 2007 (Exhibit 9). Doctor Day states that there did not appear to be a specific injury; and there does not appear to be any specific pathology to Mr Bulman's spine; and he cannot relate an injury to employment. In relation to pre- -- 6 of 14 -- 7 existing conditions, Doctor Day notes that Mr Bulman has mild scoliosis of the spine which is probably not relevant, and maintains that the incidents in 2001 and April 2005 are relevant. [42] Under cross-examination, Doctor Day agreed that it is conceivable that Mr Bulman injured his back in late July 2006 after lifting a grader tyre. In response to the proposition that if the tyre weighed substantially more than 50 kg, that the likelihood of an injury or at least an aggravation would be increased, Doctor Day said that the problem was that he could not find much in terms of an injury, but it could conceivably injure someone's spine. Doctor Day also agreed that he envisaged that lifting a grader tyre that weighed at least 50 kg could cause an injury. In response to the proposition that soft tissue and/or muscular-ligamentous injuries do not present themselves by way of diagnostic imaging, Doctor Day said that there are five grades of whiplash injury in the spine. Grades one and two are generally relatively mild, and usually have no abnormalities on imaging. Grade three, four and five have significant abnormality up to fracture and facture dislocation, so the same principles would apply to the lumbar spine. When asked whether he considered that Mr Bulman may have suffered a soft tissue and/or musculo-ligamentous injury that did not present itself on diagnostic imaging, Doctor Day said that this was a possibility. [43] When asked why he did not put this possibility in his report, Doctor Day said that he could not find a specific injury to the spine or specific pathology. Doctor Day also said that he could not detect any pathology in Mr Bulman's spine so he did not have a target to report on. Doctor Day said that the detection device he employed was an MRI and a CT. Doctor Day also carried out a clinical examination of Mr Bulman. According to Doctor Day, Mr Bulman had a CT of his spine in April 2005 that was within normal limits after a work-related injury when he lifted an oil drum. Doctor Day said that other than a bone scan, he did not know of too many other implements for diagnosing or trying to find pathology. [44] Doctor Day also said that if there was a soft tissue or musculo-ligamentous injury it was minor. Where there is no evidence of pathology, there must be some significant clinical signs to look elsewhere or to look for evidence of impairment. Doctor Day said that he could not find it. Doctor Day uses diagnostic imaging to clarify what he thinks clinically. If something is not there clinically, and cannot be seen on imaging, then it is probably not there. If it is there, it could be minor. The proposition was put to Doctor Day that where a patient has not complained of lumbar pain before an alleged incident, or not complained very much of lumbar pain, and there is an event followed by numerous complaints of lumbar pain, it is consistent with an injury having occurred in the manner alleged. Doctor Day said in response that this did not apply in Mr Bulman's case, because he had pain for a minimum of five months before the event. According to Doctor Day's notes, Mr Bulman hurt his back playing basketball in 2001 and had pain for three months. Mr Bulman also lifted an oil drum in 2005 and had a CT scan at that time. Mr Bulman had pain for two months following that incident. Doctor Day said that this indicated that Mr Bulman had a sub-chronic condition which he could not diagnose, prior to the injury in February 2007. [45] Doctor Steadman examined Mr Bulman and prepared a report dated 13 February 2008 (Exhibit 10). In preparing that report, Doctor Steadman had regard to pathology reports and a bone scan resulting from investigations he organised, with the intention of excluding an inflammatory disorder. According to Doctor Steadman's report Mr Bulman had a long history of back problems, involving six incidents. The first occurred on 2 October 2001, when Mr Bulman was at the Australian Basketball championships while he was still at school. For the next five years Mr Bulman was symptom free until he was shifting a 20 kg oil drum at work on 7 March 2005 and developed some pain. Mr Bulman had extensive treatment until 23 June 2006 and then improved, although he was not symptom free. On 27 July 2006 Mr Bulman experienced pain while changing a grader tyre, and required treatment through to 21 February 2007. The fourth incident occurred at home when he developed pain. Mr Bulman had treatment including chiropractic work. A fifth incident occurred while Mr Bulman was at work. According to Doctor Steadman, there were now issues beginning to penetrate Mr Bulman's case in terms of stress and depression and problems with his financial situation and future. Mr Bulman went to a psychologist after the onset of these problems and had been on anti-depressants since. Most recently Mr Bulman had the sixth incident. Doctor Steadman's report indicates that when he saw Mr Bulman he complained of lower back pain. [46] In relation to relevant medical history, Doctor Steadman reports that Mr Bulman has a history of back problems stemming back to late teenage years. The first two incidents were not claimed as WorkCover events, but the last three were work aggravations, at the lighter end of causation given the mechanisms. In summary, Doctor Steadman reports that Mr Bulman has a sore back. Blood tests and bone scans to determine whether Mr Bulman has an underlying inflammatory condition were unhelpful, and Mr Bulman does not have an inflammatory disorder from the normal bone scan and blood tests, though his right SI joint is mildly hot. Doctor Steadman also expresses the view that given the issues around Mr Bulman's case and the stressors that he nominated, Mr Bulman's problem, based on objective imaging, is non-physical. [47] In respect of specific questions, Doctor Steadman states that his clinical findings and prognosis indicate a man with relatively normal examination with nothing specific. The relationship between the injury and employment appears to be tenuous at best. Mr Bulman has an underlying back problem or he has an underlying anxiety disorder, all of which are compounding his situation. The relationship between a specific employment and/or the deterioration is most likely to be temporary exacerbations rather than permanent long-term temporal changes. -- 7 of 14 -- 8 The original onset of the condition was when he was a teenager, and was outside employment. The next five events have been at work, and have all been associated with some lifting. There has been a gradual deterioration of his non-physical function. In relation to any pre-existing conditions and their effects on Mr Bulman's incapacity, these have been considered, but ultimately the MRI seems essentially normal, and there is no defined pathology to identify. [48] Doctor Steadman said that when he first saw Mr Bulman he was concerned because Mr Bulman reported having lost 11 kg in weight and he was anxious that Mr Bulman was suffering from something serious such as a cancerous process or an auto-inflammatory disorder, because of the chronicity of his pain. Doctor Steadman did a bone scan and a blood test to try to ascertain whether Mr Bulman had another condition that could be causing that deterioration. The bone scan was not so much to ascertain whether Mr Bulman had a musculo-ligamentous injury as opposed to excluding more serious conditions. A bone scan in the presence of inflammatory disease would show a hot spine and very hot sacroiliac joints on both sides. Mr Bulman's scan did not show this. In that sense, the scan excluded more serious conditions that young people get that could cause terrible spinal pain. At the time Doctor Steadman saw Mr Bulman he said that he was suffering from pain in his cervical thoracic and lumbar spine and in his torpus. According to Doctor Steadman, the conclusion in the bone scan "No abnormality lumbar sacral spine" covers bony and soft tissue abnormalities. [49] Under cross-examination, Doctor Steadman agreed that if Mr Bulman had suffered an aggravation of a soft tissue musculo-ligamentous type in July 2006, it would not be demonstrated by a bone scan. Doctor Steadman said that such an injury would be demonstrated by an MRI. According to Doctor Steadman, an MRI is the definitive soft tissue investigation in medical practice and works with other investigations such as bone scan and CT to actually image the soft tissues. If there is an abnormality such as oedema or inflammation in the soft tissues it will show up. In response to the question of whether a strain type injury would show on an MRI, Doctor Steadman said that if there is a lapsed period of two years between the injury and the report, a strain will still cause changes in the tissue in its acute stage, but the acuity will resolve and as it does a lot of the tissue changes may pass. [50] Doctor Steadman agreed that of the mechanisms of injury described by Mr Bulman, the more strenuous nature of manually placing a grader tyre weighing 300 kg onto the back of a vehicle, was more likely to have caused an aggravation than the last three mechanisms described by Mr Bulman, but maintained that Mr Bulman's MRI showed no structural abnormality. Doctor Steadman also said that he was drawing conclusions based on what Mr Bulman told him. In response to the proposition that if the last three mechanisms described by Mr Bulman were work aggravations, then the July 2006 incident also represented a work aggravation, Doctor Steadman said that if Mr Bulman had a chronically sore back, then anything he did was going to aggravate it. [51] The proposition was put to Doctor Steadman that there is a strong likelihood that Mr Bulman suffered a musculo-ligamentous injury or at least an aggravation, while lifting the grader tyre. In response, Doctor Steadman said that the current situation is that it is hard to find anything wrong with Mr Bulman, and if all of the facts were accepted, at the end of the day, an MRI to assess Mr Bulman's back, could not determine any reason for or cause of his pain. Doctor Steadman agreed that it is a fair comment that an MRI confirms a soft tissue injury, but a negative MRI does not necessarily exclude a soft tissue injury. [52] In re-examination, Doctor Steadman maintained that a number of factors in Mr Bulman's case did not add up. It was accepted that if a person lifted a 318 kg tyre that the person would get a sore back. Doctor Steadman said that every contemporary investigation available in modern medicine had been undertaken with respect to Mr Bulman, and disclosed no reason for the pain he was complaining of. Doctor Steadman also performed a physical examination of Mr Bulman. In relation to his conclusion that Mr Bulman's problems were non- physical, Doctor Steadman said that it was obvious that Mr Bulman had some kind of stress disorder. Doctor Steadman also said that lifting a 318 kg tyre could cause severe pain which would last for a year, but this did not mean that Mr Bulman had anything wrong with him. Submissions The Council [53] It was submitted for the Council that the chronology of Mr Bulman's injuries involved an initial back injury in October 2001. This was not the injury to Mr Bulman's coccyx as evidenced by the notes from the physiotherapist who treated that injury. Those notes (Exhibit 11) refer to insidious onset of pain during a basketball tournament, perhaps as a result of sleeping in a different bed, and not to a fall resulting in Mr Bulman injuring his coccyx. The next incident was on 7 March 2005, where Mr Bulman reported injuring his back while lifting an oil drum at work. There was no time off work as a result of this injury, and no claim for workers' compensation. It was submitted that a particularly important event then occurred when Mr Bulman attended a private hospital and was seen by Doctor Buchan on 16 March 2005. The notes from that visit state that Mr Bulman reported that he put his back out while playing basketball over the last three days. This was said to be evidence that Mr Bulman had a recent event at basketball, and that this reference was not to the injury in October -- 8 of 14 -- 9 2001. This is confirmed by Doctor Kritzinger's notes of 20 April 2005, where it is reported that Mr Bulman fell on his back while playing basketball and hurt his coccyx. [54] It is contended that these notes do not relate to an injury in October 2001, but to an injury that occurred between 7 and 16 March 2005. Doctor Kritzinger referred Mr Bulman for a CAT spine of the thoracic and lumbar spine. There was no mention at this visit of a work injury on 7 March 2005, despite Mr Bulman being referred for a not inexpensive medical procedure. Further, Mr Bulman underwent fourteen sessions of physiotherapy between 22 April and 27 August 2005. Subsequent visits to Doctor Kritzinger do not relate to back pain but rather to dizziness, vertigo, headaches and depressive anxiety disorder. There is then a claim for an incident on 26 July 2006. In the statement of claim relating to this incident, in response to question 38, Mr Bulman said that he saw Doctor Kritzinger for the injury on the date it occurred. It is submitted that the medical records suggest that this was not the case. It was also submitted that Doctor Kritzinger conceded that back pain might have been mentioned by Mr Bulman in the context of "flu" symptoms, but there was no mention of a work-related incident causing back pain. [55] Reference was also made to Mr Bulman's application for compensation in March 2007 (Exhibit 3) which states that the injury occurred in the workshop and not at a site where Mr Bulman was changing tyres. The incident report filled out at the time the application for compensation was made (Exhibit 4) states that Mr Bulman hurt his back lifting heavy objects continuously throughout the day. The application for compensation made on 3 March 2007 is the first application in relation to the 26 July 2006 incident. [56] Mr Bulman bears the onus of proof. Doctors Day and Steadman confirm that Mr Bulman suffered no specific injury on 27 July 2006. Even if Mr Bulman did suffer some back pain in the circumstances alleged by him on that date, Doctor Kritzinger's records, combined with other evidence of previous injuries and attendances on medical practitioners do not support a finding that Mr Bulman's employment was a significant contributing factor to that injury. While Mr Bulman is a young man who appears to genuinely believe that he has been suffering a significant back injury and pointing particularly to the alleged incident on 27 July 2006 as causing the injury, as a matter of law, Mr Bulman's case failed. Q-COMP [57] It was submitted for Q-COMP that the nub of this case is whether Mr Bulman suffered an injury as defined in the Act, and particularly whether Mr Bulman suffered an injury that caused the incapacity and detriment alleged. Mr Bulman as the appellant bears the onus of proof and the standard of proof is the balance of probabilities. Mr Bulman has not demonstrated on the balance of probabilities that he suffered an "injury" on 27 July 2006. The incident may have caused some short-lived pain or discomfort, however any continuing symptoms, if they existed, were the product of some other cause or causes unrelated to Mr Bulman's employment. The core of Mr Bulman's case is his own evidence. The only "independent" evidence is that of Mr Bulman's mother. If it is concluded that Mr Bulman is an unreliable historian, the appeal must fail. It cannot be said that Doctor Campbell's views necessarily support Mr Bulman's case, because as Doctor Campbell acknowledged, those views are based entirely on his observations of Mr Bulman and what Mr Bulman told him. [58] Mr Bulman is an unreliable witness. In particular, Mr Bulman's contention in the statement of claim that he saw Doctor Kritzinger for the injury on the day it occurred was not correct, as Mr Bulman had made an appointment with Doctor Kritzinger a few days earlier because he had the flu. Doctor Kritzinger's records do indicate that Mr Bulman consulted him on 27 July 2006 but the consultation had nothing to do with a work incident. Mr Bulman said that Doctor Kritzinger prescribed pain killers, when the clinical notes record that an antibiotic was prescribed. The Commission should conclude, given the completeness of Doctor Kritzinger's records and his evidence, that there is a high likelihood that a symptom like a "really really sore back" would have been documented if it had been mentioned. It should also be noted that Mr Bulman conceded that despite the alleged severity of the back injury, he did not tell Doctor Kritzinger how the injury occurred. That is to be contrasted with other entries in records which include the mechanism of the injury - for example basketball. [59] Mr Bulman completed an incident report concerning the 27 July incident on 16 October 2006, and explained the delay by saying the Council had told workers a free barbeque would be provided if they had an incident free period of three months, and he was concerned that he would be criticised by his colleagues if he was the cause of the barbeque not happening. Mr Findlater's evidence contradicted that of Mr Bulman. Mr Findlater said that there was no definite offer of a barbeque, but a suggestion was raised at a tool box meeting, later in 2006, and after the incident of 27 July. It is also notable that Mr Bulman did not have an aversion to completing incident reports on previous occasions. [60] Mr Bulman gave evidence that a consequence of the incident on 27 July 2006 was that he was forced to stop playing a number of sports. Doctor Campbell also reported that Mr Bulman told him this. Mr Bulman admitted in cross-examination that he stopped playing basketball in April 2005 because he was getting headaches but played some social games in August 2005. Mr Bulman also admitted that he stopped playing tennis, cricket and soccer at 13 years of age because he was busy with other sports. Doctor Campbell also reported that Mr Bulman had two weeks off after the incident of 27 July 2006, in contrast with Mr Bulman's evidence that he had a -- 9 of 14 -- 10 rostered day off on the day after this incident (a Friday) and returned to work on the following Monday. Mr Bulman's inability to remember back injuries due to falling when playing basketball was also contrasted with notes in medical records made by Doctor Kritzinger and Doctor Buchan. [61] Mrs Bulman was said to be an unreliable witness who could not recall various consultations with medical practitioners that she attended with Mr Bulman. Notwithstanding this Mrs Bulman claimed to recall Mr Bulman telling Doctor Kritzinger on 27 July 2006 that he was suffering from backache, this inability to recall details was said to suggest that her recollection about what Mr Bulman told Doctor Kritzinger on that date may be in error. It should also be noted that Mrs Bulman was not asked to try to remember what was said at the 27 July 2006 consultation, until early 2009, at which time she was aware that the matter of what was said to Doctor Kritzinger on 27 July 2006 was of some import. [62] It is submitted that Mr Bulman has a history of psychological difficulties and that Doctor Steadman said that people sometimes attribute physical injury to what is in reality, a psychiatric or psychological problem. Doctor Campbell also said that in the absence of any objective evidence of a physical injury, it is not possible to determine whether, in any particular case, the problem is physical or psychiatric/psychological in nature. In this case it is clear from the reports of all specialists who gave evidence that there is no CT, MRI or X-ray evidence that would support the existence of a physical back injury. In those circumstances, and having regard to Mr Bulman's unreliability it is submitted that Doctor Campbell's views should not be given as much weight as they otherwise might. [63] Reference was also made to Doctor Campbell's note that Mr Bulman told him that the symptoms of his 2001 basketball injury persisted for four to six weeks, and the evidence of Mr Bulman in these proceedings that the injury took three months to heal. Doctor Campbell acknowledged that a back injury that took three months to heal would be a significant injury. It was also submitted that Doctor Campbell did not refer to or have any recollection of reading the report of Doctor Buchan dated 16 March 2005 or the report of Doctor Kritzinger dated 20 April 2005. Doctor Campbell made no mention of Mr Bulman's psychiatric/psychological difficulties and there is no evidence that he considered the possibility that Mr Bulman's problem might be non-physical. This can be contrasted with the report of Doctor Steadman, which is extremely comprehensive and demonstrates extreme thoroughness in examination and investigation of Mr Bulman. Doctor Steadman's views are also supported by those of Doctor Day. Mr Bulman's reliability is critical in this case, and Mr Bulman has not established that he suffered an injury as defined on 27 July 2006. Mr Bulman [64] It was submitted for Mr Bulman that the definition of "injury" in the Act includes aggravation of any pre- existing condition. The real questions or issues to be determined are whether there was a personal injury sustained, and whether it arose out of or in the course of employment, because the employment was a significant contributing factor. If Mr Bulman injured himself on 27 July 2006 while changing a grader tyre, then work was a significant contributing factor. One could envisage a soft tissue lower back injury occurring while lifting and loading single-handedly, a tyre and rim weighing in excess of 300 kg. Evidence of the weight of the tyre was not challenged at any point. [65] In relation to whether Mr Bulman suffered an injury, much of the case was about reporting of the incident and the injury. There is overwhelming evidence that Mr Bulman did report the incident to his employer through Mr Findlater, the Workplace Health and Safety Officer. That report was made on the on the day the injury occurred and Mr Bulman reported that he hurt his back lifting a grader tyre at the dump. Mr Pitcher, Mr Bulman's supervisor, confirmed that he became aware of the injury a week later upon returning from annual leave. There is no doubt that the employer, through its servants, was aware of the injury. The fact that Mr Bulman did not fill in an incident form in relation to the injury until October 2006, does not mean that there was no injury. There is no precedent in law to the effect that if a worker does not fill in an incident report within a specified time, that in fact the injury or incident did not happen. When Mr Bulman did complete the form, it was in accordance with what he told Mr Findlater on the day the incident occurred. Mr Findlater confirmed that there had been talk of a free barbeque, and importantly that he effectively directed Mr Bulman to complete the report. [66] In relation to the attendance on Doctor Kritzinger on 27 July 2006, it was submitted that the failure on the part of a medical practitioner to make a note of a particular symptom is a common phenomenon particularly given their workloads. While Doctor Kritzinger said that he tries to record all the symptoms he is told about, he also acknowledged that he does not always accomplish that and it is more likely that he won't do so if the symptom is not part of the main reason for the consultation. Doctor Kritzinger said that it is more likely that he will miss recording a symptom if it as at the end of a patient's recitation of a number of symptoms. Mr Bulman identified in his evidence that he was at the end of his recital of symptoms when he mentioned the "really really sore back". Doctor Kritzinger also gave evidence that Mr Bulman told him of "flu" like symptoms and that a sore back can be consistent with such symptoms. In the end, Doctor Kritzinger conceded that Mr Bulman may have told him of lumbar symptoms and this was not recorded. -- 10 of 14 -- 11 [67] It was submitted that a significant area to look at in determining whether an injury has occurred, is to look at the pre and post symptoms of the alleged incident. Mr Bulman's evidence was that he suffered some lower back symptoms in 2001 when he fell at basketball, and an incident at work on 7 March 2005 after lifting an oil drum. On both occasions, Mr Bulman underwent conservative treatment by way of physiotherapy and/or chiropractic treatment. Mr Bulman did not attend on any medical practitioners with respect to the March 2005 incident and says that his lower back was symptom free in the months leading up 27 July 2006, although he was experiencing other ailments and symptoms such as shoulder and neck pain. [68] It is important to distinguish between those symptoms and the lumbar symptoms and those symptoms should not be fused together and described generally as back symptoms. It is clear from the evidence that there are lumbar symptoms after the incident on 27 July 2006, in addition to the other symptoms. Although Mr Bulman did have a history of upper spine and in particular cervical spine complaints, he did not have a significant history of pre- incident lower back complaints. After July 2006, that changed and this is supported by Doctor Kritzinger's notes. Prior to July 2006 there are attendances on medical practitioners in relation to lower back complaints on 16 March 2005 when Mr Bulman attended Doctor Buchan. Although there is no mention of lower back pain, Doctor Buchan did order an X-ray of Mr Bulman's lower back. The second instance of lower back pain was on 20 April 2005. These are the only attendances on Doctor Kritzinger in relation to lower back pain, prior to 27 July 2006. This is despite numerous other attendances on Doctor Kritzinger. [69] Significantly, after the incident on 27 July 2006, there are attendances in relation to lumbar pain on that day where Doctor Kritzinger failed to record the complaint, and on 21 August and 8 November. There is an attendance on 8 December where back pain is indicated although lower back is not specified. On February 23 2007, Mr Bulman was given exercises for lumbar pain although no complaint was recorded. On 12 March, 30 March and 16 April 2007, there are references to lumbar pain and the progress of Mr Bulman's back complaints. There is also evidence that Mr Bulman attended physiotherapy for lower back pain subsequent to 27 July 2006, and this is recorded in Doctor Kritzinger's notes. [70] It was further submitted that another relevant consideration in determining whether someone has suffered an injury, is work performance. Mr Bulman's evidence is that his work performance deteriorated after the incident on 27 July 2006, and that he avoided heavy lifting tasks. This evidence was supported by Mr Pitcher and Mr Findlater. Mr Findlater's evidence was that after the incident, Mr Bulman complained of a sore back, and was given lighter duties. There is no evidence of poor work performance before the incident of 27 July 2006. Neither is there evidence of avoidance of work duties or complaints to other workers of a sore back, before that incident. While Mr Bulman may have taken some sick days in the years before 27 July 2006, there is no evidence that those days related to lumbar back pain. [71] Mr Bulman is a credible witness, and the majority of his evidence was supported by that of other witnesses. There were very few discrepancies in the evidence of Mr Bulman, given the level of cross-examination to which he was subjected, and the many medical attendances spanning a number of years that Mr Bulman was questioned about. The evidence of Mr Pitcher and Mr Findlater, two independent co-workers, was not seriously challenged. The evidence of Doctor Campbell should be preferred, particularly in light of the continuing argument about soft tissue and musculo-ligamentous injuries as they appear on diagnostic imaging. Doctor Campbell was quite certain with regard to his evidence. In any event, the evidence of specialists in this case is of limited probative value, given that they all rely on what Mr Bulman told them, and more importantly their examinations and diagnostic imaging were conducted quite a time subsequent to the alleged injury. Doctor Steadman conceded that there could have been an injury at the time and it was understandable that it did not show up when the MRI was done. [72] In relation to Mr Bulman's psychiatric or psychological condition, no evidence was put before the Commission by a psychiatrist. Mr Bulman was not examined by a psychiatrist. Evidence of that nature given by orthopaedic surgeons and neurosurgeons is of no value whatsoever, given that they are not specialised in that field. Doctor Steadman's evidence failed to take into account that a person can have specific ailments including depression and anxiety, and this does not mean that they cannot suffer a soft tissue injury. It appeared that Doctor Steadman was putting all Mr Bulman's ailments together and concluding that there was no physical cause for his symptoms. Doctor Campbell's evidence makes more sense as it fits with the reporting of the injury and the decrease in Mr Bulman's activity subsequent to the injury. [73] There is strong evidence on the balance of probabilities that Mr Bulman did incur an injury on 27 July 2006, even if it was an aggravation in the lumbar region. Issues in Dispute [74] It is not in dispute that on 27 July 2006, Mr Bulman lifted a grader tyre weighing 318 kg. The issue for determination in this case is whether Mr Bulman suffered an injury as defined in the Act. -- 11 of 14 -- 12 [75] The meaning of "injury" is found in s. 32 of the Act which relevantly provides as follows: "32 Meaning of injury (1) An injury is a 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; … (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.". [76] It was contended for Mr Bulman that on 27 July 2006 he sustained a personal injury, which includes an aggravation of any pre-existing condition, and that the injury arose out of or in the course of employment. The first respondent, Q-COMP, contended that Mr Bulman had not demonstrated on the balance of probabilities that on 27 July 2006, he suffered an injury as defined in the Act. While the incident may have caused some short- lived pain or discomfort, any continuing symptoms, if they existed, were the product of some other cause or causes unrelated to Mr Bulman's employment. According to the second respondent, the Rockhampton Regional Council, the evidence confirms that Mr Bulman did not suffer a specific injury on 27 July 2006. If Mr Bulman did suffer some back pain in the circumstances alleged by him on that date, specialist medical evidence does not support a finding that Mr Bulman's employment condition was a significant contributing factor to that injury. Conclusions [77] Mr Bulman bears the onus of establishing, on the balance of probabilities, that he sustained an injury within the meaning in s. 32 of the Act. After considering the evidence in this case, I am unable to accept that Mr Bulman suffered an injury arising out of or in the course of employment to which employment was a significant contributing factor. I am also unable to accept that Mr Bulman suffered an aggravation of a personal injury or a medical condition within the meaning in s. 32(3)(b) of the Act. I have reached these conclusions for the following reasons. [78] In my view, Mr Bulman was not a reliable historian or witness. This is not to say that Mr Bulman was untruthful in his evidence. However, there were inconsistencies, omissions and statements that were not correct, when the notice of claim for damages, previous applications for compensation, statements made to medical practitioners and Mr Bulman's evidence in these proceedings are considered. Mr Bulman stated in the notice of claim for damages that he saw Doctor Kritzinger on 27 July 2006, for the injury he sustained on that date. This statement was not correct as Mr Bulman was attending an appointment made earlier in the week, because he was suffering from influenza. Mr Bulman also stated in the notice of claim for damages and during his consultation with Dr Campbell that he gave up sport as a result of the injury suffered on 27 July 2006 when this was not the case. Mr Bulman's evidence was unclear in relation to exactly when he gave up basketball, and in some cases Mr Bulman's evidence was contradictory. Accordingly it is at least equally probable that any injury or pain suffered by Mr Bulman was caused by injuries sustained while playing basketball. [79] In the supplementary answer contained in the notice of claim for damages, Mr Bulman includes the attendance at the Hillcrest Private Hospital for an after-hours consultation on 16 March 2005, in statements made about an injury that allegedly occurred when he was lifting an oil drum at work on 7 March 2005. The inference is that this attendance is related to that injury. This is at odds with the report of Doctor Buchan who saw Mr Bulman on 16 March, and stated that he reported injuring himself at basketball over the last three days. That report does not indicate that Mr Bulman made any mention at all of a workplace injury. [80] Mr Bulman's evidence about the injury said to have been sustained on 7 March 2005 while lifting an oil drum at work, is inconsistent. Notwithstanding that he completed an incident report at the time indicating that the injury was sustained at work, Mr Bulman made no mention of this at the after hours consultation with Doctor Buchan on 16 March 2005, or during his consultation with Doctor Kritzinger on 20 April 2005. Instead, Mr Bulman told -- 12 of 14 -- 13 both doctors that he hurt his back playing basketball. I do not accept that the reference to a basketball injury in the consultation with Doctor Buchan referred to the 2001 injury during the basketball tournament. The 2001 injury did not relate to a fall. Further, it is more probable than not that if the workplace incident of 7 March 2005 caused such pain that Mr Bulman was compelled to seek after hours treatment, he would have mentioned that incident and not a basketball injury that occurred at some time during the previous three days. I do not accept Mr Bulman's explanation to the effect that when he was asked how his injury occurred he always said basketball because this was how he sustained his first injury. It is clear from the report of Doctor Buchan on 16 March and Doctor Kritzinger on 20 April 2005 that the Mr Bulman was reporting pain associated with a basketball injury that had recently been suffered by him. This injury must have occurred in the days prior to 16 March 2005, and at a time when Mr Bulman claimed to have ceased playing basketball, and very close to the time Mr Bulman claimed to have been injured while lifting an oil drum. [81] Mr Bulman's conduct on and following 27 July 2006, is not suggestive of him suffering an injury of the severity and magnitude alleged. I do not accept that Mr Bulman told Doctor Kritzinger that he had a sore back during the consultation on 27 July 2006. Doctor Kritzinger's notes in relation to Mr Bulman are comprehensive, and his evidence is that of a conscientious General Practitioner who was in the habit of recording any significant symptoms reported by a patient. I think it unlikely that on 27 July 2006 Doctor Kritzinger would record that Mr Bulman's left ear was sore, and would fail to report that Mr Bulman told him that he had a "really really sore back". Mr Bulman's medical records are suggestive of him regularly attending Doctor Kritzinger and reporting his symptoms in detail. That detail was apparently recorded by Doctor Kritzinger. Notes of subsequent consultations made by Doctor Kritzinger do contain references to reports of back pain, to the extent of specifying which part of Mr Bulman's back was painful. [82] In contrast, there is no record of Mr Bulman reporting back pain during his consultation with Doctor Kritzinger on 27 July 2006. It is more probable than not that if Mr Bulman did report back pain to Doctor Kritzinger on 27 July 2006, it would have been recorded by the Doctor in his notes. On Mr Bulman's evidence he had, that afternoon, suffered a workplace injury that caused immediate and ongoing pain. Even making allowances for the fact that Mr Bulman was also suffering from influenza on that day, I think it unlikely that he would have failed to report the injury or the manner in which it occurred during the consultation with Doctor Kritzinger. I am also of the view that if Mr Bulman did mention back pain, it was only as part of a series of "flu" symptoms, and is not supportive of Mr Bulman sustaining a back injury at work on that day. [83] I do not accept Mrs Bulman as a reliable witness on this point. Mrs Bulman could remember very little of what Mr Bulman reported during other medical consultations she had attended with him. Further, Mrs Bulman insisted that she particularly remembered the appointment with Doctor Kritzinger on 27 July 2006 because it was the start of Mr Bulman's back problems. Mr Bulman's medical records make it clear that this statement is not correct, and that prior to 27 July 2006 Mr Bulman had sustained other back injuries of a serious nature, for which he had extensive treatment. Mrs Bulman also downplayed the injury suffered by Mr Bulman in 2001 while at a basketball tournament, stating that it was a minor event. This is contrary to the evidence that the effects of that injury lasted for some four to six weeks, and that Mr Bulman had a number of sessions of physiotherapy for the injury. [84] Mr Bulman's failure to complete a workplace incident report following incident on 27 July 2006 was not adequately explained. There was no definite offer from the Council of a free barbeque and any discussion about such a barbeque was late in 2006, well after the incident on 27 July. When Mr Bulman was pressed to complete an incident report in relation to the incident on 27 July 2006, he did so only a few weeks before the end of the period which would have resulted in the free barbeque. It is also the case that on previous occasions when Mr Bulman sustained injury in the workplace he completed incident report forms and submitted them to his employer. The toolbox meeting reports establish that there was a request for some modifications to be made to the back of a utility, and the evidence establishes that these requests were made by Mr Bulman. There is no evidence, other than that of Mr Bulman, that he stated at a tool box meeting that he had sustained an injury. [85] The evidence about the effect of the incident on 26 July 2006 is also far from clear. Mr Findlater said that Mr Bulman complained of a sore back, after the incident and said that he had not given Mr Bulman jobs which might hurt his back. However, there was no evidence about how often Mr Findlater acted in the position of foreman, or when Mr Bulman made the complaints. Further, Mr Pitcher's evidence was also vague about when Mr Bulman's work performance deteriorated, and was effectively that any real impact on Mr Bulman's work performance was not observed until early 2007 or at the end of Mr Bulman's employment in 2008. Mr Bulman was not provided with a suitable duties program until February 2007, and performed all of his normal duties up until that time. There is also evidence that Mr Bulman had a pattern of taking sick leave which did not alter after the alleged injury in July 2006, and that his sick leave increased towards the end of his employment in 2008, rather than on or around 27 July 2006 when the injury was said to have occurred. [86] The medical evidence in this case is of limited assistance. There is a significant time lapse between the date the alleged injury occurred, and the date that each of the specialist medical practitioners who gave evidence in this matter examined Mr Bulman. The alleged injury occurred on 27 July 2006. Doctor Campbell did not examine Mr Bulman until 6 October 2008. Doctor Day examined Mr Bulman on 18 May 2007 and Doctor Steadman -- 13 of 14 -- 14 conducted his examination on 13 February 2008. An essential feature of all of the medical reports is that other than Mr Bulman's reports of pain and description of symptoms, there is no objective clinical evidence of an injury to Mr Bulman's back. [87] There are significant gaps in the information that Doctor Campbell had when he undertook his examination and made his report in relation to Mr Bulman. Doctor Campbell said in his report that he read Doctor Buchan's notes in relation to the after hours consultation on 16 March 2005, but said in cross-examination that this injury seemed to have been overlooked or not mentioned in his report. I am of the view that Doctor Buchan's report was of significance because: • It indicated that Mr Bulman suffered an injury playing basketball in or around the three days prior to 16 March 2005; and • It indicated that the effects of that injury were such that Mr Bulman attended an after hours consultation with a medical practitioner. [88] So significant was this injury that Mr Bulman was still complaining about it in a consultation with Doctor Kritzinger on 20 April 2005. [89] Doctor Campbell did not see the bone scan or the MRI, and was instead provided with reports. Doctor Campbell agreed that this was not the best case scenario, and that this only occurred in 5% of cases. It is also the case that Mr Bulman made a number of statements to Doctor Campbell that are inconsistent with his evidence in these proceedings. It is clear from Doctor Campbell's report that Mr Bulman told him that he had two weeks off work after the alleged injury on 27 July 2006. This was inconsistent with Mr Bulman's evidence that he had three days off - a rostered day off and a weekend - before returning to work. Mr Bulman also reported to Doctor Campbell that he stopped playing sport after this injury, in conflict with his evidence to the Commission, to the effect that his sporting activities ceased well before 27 July 2006, for reasons other than the injury which was alleged to have occurred on that date. [90] Doctor Campbell reported that the symptoms from Mr Bulman's basketball injury in 2001 persisted for four to six weeks, and then subsided completely. According to Doctor Day's notes Mr Bulman had pain for three months following this injury. Doctor Campbell agreed that an injury that required three months to heal would need to be taken into consideration. These issues with the information provided to Doctor Campbell have led me to a conclusion that the evidence of Doctor Day and Doctor Steadman should be preferred. [91] Doctor Day acknowledges the possibility Mr Bulman was suffering from a soft tissue or musculo-ligamentous injury that did not present itself on diagnostic imaging. However when this concession is considered in the total context of Doctor Day's evidence, it is clear that it is more probable than not that Mr Bulman did not suffer such an injury. Doctor Steadman made the most exhaustive examination of Mr Bulman, and on balance, his evidence considered in tandem with Doctor Day's evidence, leads to a conclusion that Mr Bulman has failed to establish that he suffered an injury as defined in the Act. Essentially, there is no defined pathology or clinical signs of an injury. In the absence of this, the other evidence by which Mr Bulman seeks to establish that he sustained an injury as defined in the Act, does not, on balance meet the onus of proof that is required. [92] At best, Mr Bulman has established that he suffered some pain and discomfort as a result of lifting a 318 kg grader tyre on 27 July 2006. This is not sufficient to meet the definition of injury under the Act. It is also the case that Mr Bulman's medical history and the injuries he has sustained outside the workplace, make it equally probable that the pain of which he complains did not arise from an injury as defined in the Act. [93] The appeal is dismissed. I Order accordingly. I.C. ASBURY, Commissioner. Hearing Details: 2009 25 September 23 November 7 and 8 December Released: 30 June 2010 Appearances: Mr C.D. Press of Counsel instructed by Messrs Maurice Blackburn on behalf of the appellant. Mr F.L. Lippett instructed by and on behalf of Q-COMP, the first respondent. Mr W.D.P. Campbell instructed by Bruce Thomas Lawyers for Rockhampton Regional Council, the second respondent. -- 14 of 14 --