Danmatt Equipment Pty Ltd v Q-COMP [2009] QIRC 82 (2009) 191 QGIG 2

[Extract from Queensland Government Industrial Gazette, dated 8 May, 2009, Vol. 191, No. 1, pages 2-9] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - procedure for appeal Danmatt Equipment Pty Ltd AND Q-COMP (WC/2008/61) DEPUTY PRESIDENT SWAN 29 April 2009 DECISION This is an application filed by Danmatt Equipment Pty Ltd (the appellant) against a decision of the Review Unit, Q- COMP (the respondent) dated 18 July 2008 issued pursuant to s. 545(1) of the Workers' Compensation and Rehabilitation Act 2003 (the Act) in relation to Mr Marcus Charles Facer's (the claimant) application for compensation for a hernia injury. The respondent's decision is as follows: "In summary, I have determined that:  In relation to the right shoulder injury, the Claimant did not sustain an 'injury' within the meaning of section 32 of the Act.  In relation to the hernia injury, the Claimant sustained an 'injury' within the meaning of section 32 of the Act. In relation to the Application for Compensation for the right shoulder injury, my decision is to set aside the insurer's decision to accept the Claimant's application, and to substitute another decision to reject the application. In relation to the Application for Compensation for the hernia injury, my decision is to confirm the insurer's decision to accept the Claimant's application.". The "hernia injury" is the matter under consideration in this appeal. Background to the appellant's claim An "Agreed Statement of Facts" is as follows: "1. On 14 February 2008 Mr Marcus Facer performed 1 days work with the Appellant. 2. He performed general duties as a mechanic in the Appellant's mechanical workshop. The work involved light to moderate lifting and including for example removal of a 4WD tyre/wheel weighing approximately 20kgs. Mr Facer did not engage in any unsafe lifting practices during his day with the Appellant on 14 February 2008. 3. Mr Facer did not experience any pain related to his hernia on 14 February 2008.". [Exhibit 8] The legislation Section 32 of the Act states: "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. … (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; -- 1 of 7 -- 2 (c) loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to the 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. … (5) Despite subsection (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances - (a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment; (b) the worker's expectation or perception of reasonable management action being taken against the worker; (c) action by the Authority or an insurer in connection with the worker's application for compensation. Examples of actions that may be reasonable management actions taken in a reasonable way -  action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker  a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment.". The appellant bears the onus of proof to satisfy the Commission, on the balance of probabilities, that the claim for compensation in respect to the hernia injury is not one for acceptance. In State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne [2003] 172 QGIG 1447 at 1448 Hall P, inter alia, stated that: "The second point which emerges from a perusal of the Act is that the worker (claimant) is not a necessary party to an employer's appeal to the Industrial Magistrates Court. It is true that under the post July 2001 form of the Act, a worker may become a party to the appeal, s. 498(2). It is true that under the pre-July 2001 scheme a worker might seek leave to be heard pursuant to s. 329 of the Industrial Relations Act 1999. But there is not presently an obligation upon the worker (claimant) to elect to become a party and neither was there an obligation to seek leave to be heard under the pre-July 2001 arrangements. It is difficult to accept that it is in the nature of the appeal at s. 498 that the onus is to be borne by a person who may not be a participant in the proceedings. Counsel for the appellant seeks to meet the argument by submitting that the onus is not upon the worker but upon Q-Comp. Put aside the consideration that it would be more than a little odd for Q-Comp to have such an adversarial role thrust upon it, the submission almost concedes the point. An appeal pursuant to s. 498 is not the trial of the worker's claim for compensation. The appeal pursuant to s. 498 is, as the language of s. 506 suggests, about the decision. One may readily accept that on an appeal against the decision the appellant bears the onus of satisfying the Tribunal that the decision appealed against was wrongly made, compare Traut v. Faustmann Brothers Pty Ltd (1983) 48 ALR 313 at 319 per Toohey J and 325 per Lockhart J. The appeal pursuant to s. 498 would be a very unusual appeal indeed if, by filing a notice of appeal, the appellant might impose upon the Statutory Review Unit (or the administrative agency acting for it) the carriage of the case in which it bore the onus of justifying the decision appealed against. In my respectful opinion the Industrial Magistrate was right to conclude that the employer bore the onus of proof and was the participant required first to present its case.". The abovementioned decision clarifies the question as to which party bears the onus of proof in matters such as this. Medical practitioners, Dr T. Myers (Consultant Physician), Dr G. de Lacy (Laparoscopic/Endoscopic Surgeon), and Dr N. Sharma (General Practitioner) gave evidence to the Commission. The respondent called the claimant to give evidence. Primarily, the claimant's evidence-in-chief was as follows:  He worked for one day for the appellant on 14 February 2008.  Prior to that he had worked as workshop manager for Kingfisher Bay Resort.  In the 15 years prior to working for the appellant, he had not undertaken employment of a physical nature.  He had not noticed his hernia prior to working for the appellant.  He first became aware of his hernia when his wife noticed it "a couple of days after coming back from working for Danmatt". [Transcript, p. 2-13] -- 2 of 7 -- 3  He did not seek medical help for the hernia because he was concentrating upon another injury he sustained (shoulder) and getting paid for the day's work.  He sent a number of emails to the appellant regarding payment for the day's work but had not mentioned the hernia until 5 March 2008.  He had not undertaken work of a physical nature since 14 February 2008. Under cross-examination, the claimant relevantly provided the following evidence:  The claimant "noticed the hernia pain" when he was driving home on 15 February 2008. [Exhibit 10.1]  The claimant further states that "I did not notice the hernia until a couple of days before submitting the claim as it is quite small & unnoticeable". [Exhibit 10.3] [Commission Note: It is accepted by the parties that the claim was lodged on 6 March 2008.]  The claimant agreed that the first written reference to his hernia occurred on 5 March 2008 when he communicated via email with the appellant. [Transcript, p. 2-18]  The claimant stated that it was "three days later or something; very close to that" after 15 February 2008 when his wife noticed his hernia. [Transcript, p. 2-19]  The claimant consulted Dr Sharma on 26 February 2008. The claimant said that he raised the issue of the hernia with Dr Sharma but that "she wouldn't listen to me, and she missed it so I thought, oh, I'll just pick it up next time". [Transcript, p. 2-19] In response to being further questioned as to whether he did report the hernia to Dr Sharma on 26 February 2008, the claimant said that he was "90 per cent certain that I said something to her". [Transcript, p. 2-20]  The claimant acknowledged a series of emails sent to the appellant which he says were primarily sent because the appellant had failed to properly pay him. Those emails make reference to a variety of matters, including, but not exhaustively, the following:  payment of a week's pay in lieu of notice;  lack of information provided to the claimant whilst working for the one day with the appellant;  lodgement of an unlawful termination claim against the appellant;  Australian Taxation Office enquiries of the appellant's business;  the prospect of other Court proceedings against the appellant;  occupational health and safety claims against the appellant; and  the claimant's complaint to the Australian Government Workplace Ombudsman.  Emails were also written by the appellant to the claimant, culminating in both parties making comments such as "You are an idiot" (appellant to claimant dated 22 February 2008) and "I propose that you pay me & I will walk away & keep the peace - ignore me & you might find me to be a bit like golden staph" (claimant to appellant dated 19 February 2008). [Exhibit 9]  The claimant, in an email to the appellant on 22 February 2008 had advised that "I get $300 per week in the hand from vending machines - for doing 2 hrs work per week!" [Exhibit 9] However, during cross- examination, the claimant admitted that this was not true and added "It wouldn't be the first time someone's made a lie.". [Transcript, p. 2-24] In re-examination, the claimant said that the business which had paid him the $300 belonged to his wife and he actually received half of that amount. [Transcript, p. 2-40] The appellant called Dr Sharma to give evidence. Dr Sharma advised that she had been in general practice for some 20 years. She had treated the claimant on 26 February 2008. During the course of that consultation, Dr Sharma recorded 3 medical matters raised by the claimant. None of the matters listed mentioned the appellant having a hernia. Dr Sharma stated that, whilst she does not recall the consultation, her practice was to take notes which were then recorded on her computer. Dr Sharma agreed that if a matter was raised with her by a patient it would be recorded in her notes. The next consultation between the claimant and Dr Sharma occurred on 5 March 2008. In Dr Sharma's clinical notes there is reference to a "peri umbilical hernia". [Transcript, p. 3-6; Exhibit 14] In that consultation, Dr Sharma noted the following "history of lifting 30 kg wheel over the head > 2/52 ago at work-on 14th Feb -- has had pain/limitation to movt Rt shoulder on and off since. Also noticed peri umbilical hernia soon afterwards.". [Exhibit 14] When questioned by Counsel for the respondent, Dr Sharma believed that statement to mean that the claimant stated that he had noticed his hernia soon after 14 February 2008. Dr Myers was called to give evidence by the appellant. In correspondence [Exhibit 15], Dr Myers had been asked a series of questions by the appellant to which he provided a report dated 17 March 2009. Dr Myers stated that he had no knowledge of the claimant's previous work history or whether the claimant was used to lifting heavy weights. [Exhibit 17] Dr Myers stated that "Mr Facer is a tall gentleman who is grossly obese and a heavy smoker.". [Exhibit 17] Dr Myers described a "paraumbilical hernia" as follows: "1. A paraumbilical hernia is a hernia in the region of the umbilicus when a portion of omentum fat or possible small bowel protrudes through a weakness in the abdominal wall resulting in a palpable lump. This is more easily seen -- 3 of 7 -- 4 on standing or straining and often disappears when the patient lies down. Paraumbilical hernias often appear transiently in pregnancy due to raised intra-abdominal pressure. 2. A paraumbilical hernia can certainly occur spontaneously. If a defect is present, particularly in someone who is overweight and smokes heavily, then eventually a spontaneous hernia may occur. Often in this circumstance it is attributed erroneously to some form of physical exertion. 3. Often if a hernia occurs spontaneously no pain is associated whereas if the muscle is torn during physical activity a burning pain can occur.". [Exhibit 17] Dr Myers also stated that the lump associated with the onset of a paraumbilical hernia would appear immediately. Dr Myers added: "11. Although the three week delay between the alleged occurrence and the first awareness of the umbilical hernia would militate against its being work related but would certainly not exclude this possibility.". [Exhibit 17] In evidence, Dr Myers agreed with the proposition posed by Counsel for the appellant that "Is it a fair comment to say that a painless onset of a Para umbilical hernia, more probably than not, is related to - is more spontaneous and related to congenital factors rather than exertion.". [Transcript, Day 3, p. 1-13] Further, Dr Myers stated that a painful onset of a paraumbilical hernia would be more related to exertion, but added "but the two aren't mutually exclusive". [Transcript, Day 3, p. 1-13] Dr Myers believed that the claimant's particular level of obesity would be a significant factor to take into consideration as to how and when a hernia might arise. Dr Myers also stated that "the closer the noticing of the defect to the exertion, which may or may not have caused it, the more likely it is a consequence of that exertion.". [Transcript, Day 3, p. 1-14] If it were to be accepted that the claimant only discovered the hernia some 2 or 3 weeks later, in Dr Myers' opinion, it would "make it less probable that it's a consequence of the exertion". [Transcript, Day 3, p. 1-15] When cross-examined by Counsel for the respondent, Dr Myers said that if one considered an unfit person, lifting 20 kgs, than it was probable that this could be the likely cause for a hernia, "particularly if you're doing this repetitively over a period of time". [Transcript, p. 3-17] Dr Myers did not agree with the proposition from Counsel for the respondent "that it is more probable than not that activities undertaken on that day in a person who is unfit is likely to cause the hernia". [Transcript, p. 3-17] Dr Myers response was "I don't know that I could agree with that. It's possible that it may but whether it's more probable than not is difficult for me, particularly since the symptoms didn't occur for so long afterwards.". [Transcript, p. 3-17] Dr Myers also agreed that, as a consequence of the claimant's size, he may not have noticed the hernia. There was agreement by Dr Myers that had the hernia been discovered by the claimant closer to the work performed on 14 February 2008, then it would make it more probable that the physical exertion of the work may have caused the hernia. [Transcript, p. 3-18] Dr Myers also believed that unless a hernia developed and was evident at the time of the work related activity, there would be no way of knowing whether the person did not have a bulge before he undertook the activity. [Transcript, p. 3-18] The following question was posed by Counsel for the appellant to Dr Myers: "Doctor, just coming back to Mr Facer's scenario, generally. Taking into account the factors of his weight, that the onset of the hernia was painless, that he's a smoker, and that there was some delay in noticing it; are you able to make any comment as to the probability, or otherwise, of the relationship between that hernia and the work engaged on the 14th of February?". [Transcript, Day 3, p. 1-15] In response, Dr Myers stated: "It - as we've discussed it makes it less probable that it's a consequence of his occupation. If he'd done vigorous activity, lot of pain, found a lump, then one would be fairly certain that it was as a consequence of the activity. But, the absence of pain doesn't excuse it being due to the activity. But the absence of pain, the possible predisposition, and the long duration of time - the chart - it was two or three weeks, not four days, all make it less probable that it's a consequence of the exertion, than that it occurred spontaneously.". [Transcript, Day 3, p. 1-15] Dr de Lacy is a surgeon specialising in laparoscopic and endoscopic surgery. He was called to give evidence by the respondent. When commenting upon the Agreed Statement of Facts [Exhibit 8], Dr de Lacy said with that history, the claimant could have suffered a epigastric hernia. Asked to comment upon the claim that the claimant had not undertaken any physical activity prior to the work he performed on 14 February 2008, Dr de Lacy said "I can't really make a causal -- 4 of 7 -- 5 connection as such. … I don't think I can really go further than saying that it's certainly possible that it occurred due to this heavy lifting. But I can't really say more than that.". [Transcript, p. 3-23] Dr de Lacy said that smoking doubles the risk factor of the likelihood of developing a hernia. Further, Dr de Lacy stated that it would be more likely that work had caused the hernia especially if the claimant had noticed the hernia closer to the work event. [Transcript, p. 3-24] Dr de Lacy affirmed during evidence that he did not take a history of events from the claimant when undertaking his first consultation on 19 March 2008, nor did he ask when the claimant had first noticed his hernia. [Transcript, p. 3-26] It was possible that the mechanism of the injury could be the cause of the hernia. [Transcript, p. 3-27] Dr de Lacy said that if the history given to him (i.e. that the lump/hernia was noticed some days after the work related injury) was correct, then the development of the hernia after a period of unusual physical activity would most likely be caused by the activity. [Transcript, p. 3-28] When questioned by Counsel for the appellant, Dr de Lacy accepted that an increased time span between the work activity and observation of the hernia would show that it would be less likely that the work activity caused the hernia and stated that "three weeks max is less likely than four days". [Transcript, p. 3-28] Consideration of the evidence and conclusion In the circumstances of this case, the medical evidence is clear that the closer the work related activity to the observation of the hernia, the more likely it is that the hernia was caused by the performance of work on 14 February 2008. I have also taken into account both specialist doctors' comments about the significant risk factors associated with the claimant because of his weight and his smoking. Dr de Lacy said that weight can "certainly cause the development of a hernia in this position over time by itself". [Exhibit 16] At the commencement of the hearing, there was some debate as to the fitness of the claimant to give evidence. The claimant said that he had suffered from a degree of confusion, particularly around the question of "dates" of events. [Transcript, p. 2-10] Dates when events occurred or comments were made do underpin a significant part of this hearing. However, most of the "dates" and "comments" in question are contained within documents (e.g. medical reports and emails) tendered to the Commission. In light of the claimant's comments, the Commission expressed the following view to the claimant: "I don't think we can do much else but I think if it comes to a point where it would be reasonable for you to remember certain things and it's clear that you simply don't or you're completely confused about it, for argument's sake, then I will hear a debate on the call of either party as to where we go to from there.". [Transcript, p. 2.11] That having been said, no further comment on that point was raised by any party. It is helpful to restate the Agreed Statement of Facts: "1. On 14 February 2008 Mr Marcus Facer performed 1 days work with the Appellant. 2. He performed general duties as a mechanic in the Appellant's mechanical workshop. The work involved light to moderate lifting and including for example removal of a 4WD tyre/wheel weighing approximately 20kgs. Mr Facer did not engage in any unsafe lifting practices during his day with the Appellant on 14 February 2008. 3. Mr Facer did not experience any pain related to his hernia on 14 February 2008.". [Exhibit 8] On determining when the claimant first became aware of his hernia, the following evidence has been considered:  On 5 March 2008, the claimant wrote an email to the appellant stating: "I have also just developed a hernia, also since working for you, which I have just noticed ...". [Exhibit 9]  The email sent to WorkCover on 14 March 2008 where the claimant stated that "when I was driving home on 15/02/08 when I noticed the hernia pain". [Exhibit 10.1]  A further reference to the hernia is found in an email from the claimant to WorkCover dated 18 March 2008 where he says: -- 5 of 7 -- 6 "I did not notice the hernia until a couple of days before submitting the claim as it is quite small & unnoticeable.". [Exhibit 10.3] [Commission Note: The claim was lodged on 6 March 2008.]  On 28 April 2008, in correspondence from the claimant to WorkCover, the claimant states: "I do not know when the hernia appeared (it is extremely small & not really noticeable to me and I am a bit overweight). I have never experienced any pain from it whatsoever. All I do know is that it was not there before I left to start at Danmatt Equipment. It more than likely happened when I was loading tools up on my way back.". [Exhibit 10.2] On 26 February 2008, the claimant undertook a medical consultation with Dr Sharma. Dr Sharma's evidence is that the issue of a hernia was not mentioned by the claimant. Dr Sharma has been in general practice for some 20 years and her evidence was straightforward. Her practice was to note on her computer the issues raised by a patient. She has stated that, while she did not recall the particular consultation, there was no reference to a hernia because had there been, it would have been noted on her computer. While the claimant is "90%" sure he raised the issue of the hernia with Dr Sharma, I have not accepted his evidence. [Transcript, p. 2-20] I have accepted Dr Sharma's evidence and in doing so draw the conclusion that the claimant was unaware of a hernia at least at that stage. On his second visit to Dr Sharma on 5 March 2008, Dr Sharma's notes show that the hernia was mentioned. Dr Sharma believed that her notes showed that the claimant had said that he had noticed the hernia "soon afterwards" 14 February 2008. [Exhibit 14] In my view, the evidence more than points to the claimant not having discovered his hernia until around 5 March 2008. It should be noted that the materials relied upon to determine much of this point are in the form of documentary evidence. In making this decision, that evidence, coupled with the evidence of the claimant and Dr Sharma have been considered. In considering the medical evidence of Dr Myers and Dr de Lacy around the question of how hernias occur and the facts of this case, some factors appear evident. These are:  That obesity and smoking are significant factors to be considered.  A hernia can occur without pain, however, if a muscle is torn during physical activity, for example, then a burning pain may occur. Therefore, the onset of a hernia may be accompanied by pain, or may not, dependent on the circumstance.  A painless onset of a peri umbilical hernia, more probably than not, is related to congenital factors rather than exertion.  That the lump associated with the onset of a peri umbilical hernia would appear immediately  The closer the onset of a hernia occurs in relation to a specific event (i.e. heavy lifting), the more likely that event may have caused the hernia.  In the event that it was accepted that the time period between the physical activity and the observation of the hernia was 3 weeks, both doctors said that it would be less likely and less probable that there was any connection between the physical lifting and the hernia. In conjunction with all of the evidence adduced during this hearing, the following cases have been considered: In Lackey v WorkCover Queensland (2000) 165 QGIG 22 at 22, Hall P said: "I accept Mr Newton's submission that the test posited by the words 'arising out of' is wider and than that posited by the words 'caused by' and that the former phrase, although it involves some causal or consequential relationship between the employment and injury, does not require the direct or proximate relationship which would be necessary if the phrase used were 'caused by', compare State Government Insurance Commission v. Stevens Brothers Pty Ltd [1984] HCA 32; 154 CLR 552 at 555 and 559 and Dickinson v. The Motor Vehicle Insurance Trust [1987] HCA 49; (1987) 163 CLR 500 at 505.". In Chattin v WorkCover Queensland [1999] QIC 44; 161 QGIG 531, the President of the Queensland Industrial Court, Williams J in quoting Fernandez v Tubemakers of Australia Ltd (1975) 2 NSW LR 190 - Court of Appeal; (1976) 60 ALJR 720 - High Court per Mahoney JA at 199-200 in the Court of Appeal, endorsed the proposition that: "If the condition appeared the day after the occurrence of the possible cause, then, though that appearance might be a coincidence, it would normally be open to the tribunal of fact to conclude that the possible was the actual cause; if the condition appeared only some months after the possible cause then it may well be not open to draw that conclusion. In this kind of context, there must, in my opinion, be afforded to the jury some scope of inductive conclusion. The state of medical skill may be such that it can be said by an expert that, if the condition occurs after such and such a period, then the possible cause is to be excluded as the actual cause in the particular case. But where, as in the present case, this cannot be done, then, if a possible cause occurs sufficiently closely related to the condition, the jury may draw the inference of causal connexion. -- 6 of 7 -- 7 … [Quoting from an earlier decision.] … it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from the medical witnesses which proves to demonstration that the applicant's contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside the area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical evidence denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me, that no medical witness states with certainty the very issue which the judge himself has to try. In such a case as the present, the question would be whether the evidence showed the connexion between the possible cause and the condition which occurred was sufficiently close to warrant a reasonable mind, faced with the problem of determining the question upon the evidence before it, concluding that the possible was the actual cause.". In Goodman Fielder v WorkCover Queensland (2004) 175 QGIG 871 at 872, Hall P stated: "However, once the Industrial Magistrate accepted that the incident of 3 April 2001 did in fact occur and accepted that there was a proximity of time between the incident and the onset of a pain it was, in the absence of any evidence about a competing causal incident, inevitable that the Industrial Magistrate would conclude on the balance of probability that the worker's employment had been 'a significant contributing factor to the aggravation'. On the state of the evidence any other conclusion would be speculation.". It is clear that the specialist medical evidence shows that it is possible that the hernia arose out of the physical activity undertaken by the claimant on 14 February 2008 if the hernia was noticed within a short time span after the physical activity. [Commission emphasis] However, in this case, I have found that the claimant was unaware of the hernia some 3 weeks after the work activity. Both doctors also say that the claimant's state of health at the time (i.e. from excess weight and the affects of smoking) were significant factors to be considered. These 2 factors of "proximity" (3 weeks plus before noticing the hernia) and "any competing causal incident" (excessive weight and smoking, while not "incidents" per se, represent other relevant factors to be considered) in my view, assist the appellant's case. Certainly, "the connexion between the possible cause and the condition which occurred" was not sufficiently close to reasonably determine that "the possible was the actual cause". [See Chattin (supra)] In view of the finding I have made as to when the hernia was first noticed, and taking into account all medical evidence and the claimant's evidence, I am not persuaded, on the balance of probabilities, that the work performed by the claimant on 14 February 2008 was the cause of his hernia. It follows that the injury does not satisfy the requirements of s. 32 of the Act. Employment was not a significant contributing factor to the injury. I uphold the appeal. I set aside the decision of the respondent dated 18 July 2008 and determine that the appellant's claim is one for acceptance. Order accordingly. D.A. SWAN, Deputy President. Hearing Details: 2008 19 December 2009 30, 31 March Released: 29 April 2009 Appearances: Mr J. Dwyer, Counsel, instructed by Mr J. Carlisle of the Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers, for the appellant. Mr S. Gray, instructed by Ms R. Moroney of Q-COMP, for the respondent. Government Printer, Queensland The State of Queensland 2009. -- 7 of 7 --