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- Unreported Judgment
INDUSTRIAL COURT OF QUEENSLAND
Alborough v Workers’ Compensation Regulator  ICQ 20
WORKERS’ COMPENSATION REGULATOR
C/2018/20 and C/2018/21
10 December 2019
21 March 2019
Martin J, President
WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE – EMPLOYMENT SUBSTANTIAL OR SIGNIFICANT CONTRIBUTING FACTOR – TO INJURY – where the appellant claimed for a back injury said to have arisen from a period of inactivity while awaiting surgery for a hernia and while convalescing from that surgery – where the appellant further claimed for anxiety and depression following the surgery for the hernia – where the appellant contended in the Queensland Industrial Relations Commission that the inactivity was a significant contributing factor to his back injury – where the Vice President found otherwise – whether the evidence compelled a finding that inactivity was a significant contributing factor to the appellant’s back injury – whether the Vice President erred
Workers Compensation and Rehabilitation Act 2003, s 561
Commissioner of Taxation v Desalination Technology Pty Ltd (2015) 66 AAR 553;  FCAFC 96, cited
Davidson v Blackwood  ICQ 008, cited
Nutley v Workers’ Compensation Regulator  ICQ 002, cited
Tame v New South Wales (2002) 211 CLR 317, cited
Tyson Alborough v Workers’ Compensation Regulator  QIRC 110, related
M Horvath and S Lamb instructed by Nathan Lawyers for the appellant in both appeals
S P Gray directly instructed by the Workers’ Compensation Regulator in respect of both appeals
- Tyson Alborough was employed by Woolworths Limited as a retail assistant in BWS, a retailer of beer, wine and spirits. Two appeals to this court, from a decision of the Queensland Industrial Relations Commission, relate to injuries said to have arisen out of, or in the course of, that employment.
- For the reasons set out below, each of these appeals is dismissed.
Background to the injuries
- A very detailed chronology of Mr Alborough’s injuries, the actions which were taken, and the examinations he underwent, was set out in the reasons of the Vice President. For the purposes of this appeal, the following will suffice. In November 2014, the appellant applied for compensation for a right side inguinal hernia said to have been sustained during the course of his employment. The self-insurer accepted the claim and benefits were paid. The appellant then complained of a back injury said to have arisen from a period of inactivity while awaiting surgery for his hernia and while convalescing from that surgery. In April 2015, the self-insurer rejected that application. The review was unsuccessful. That leads to the appeal in C/2018/20.
- At the same time the self-insurer rejected the claim for the lower back injury, it also rejected a claim for compensation for anxiety and depression following the surgery for the hernia. That leads to the appeal C/2018/21.
- The appellant appears to have proceeded on the basis that the consideration in Davidson v Blackwood of the nature of an appeal by way of rehearing also defined the grounds upon which an appeal may be brought. It does not. Section 561(2) of the Workers Compensation and Rehabilitation Act 2003 provides that the Industrial Relations Act 2016 applies to these appeals. This has been made clear on a number of occasions. Discussion in other cases where reference was made to broader grounds of appeal was in the context of consideration of the meaning of an appeal by way of rehearing.
- The respondent’s case was that no error, whether of fact or law, was disclosed but did not specifically assert that any of the grounds advanced by the appellant were unavailable.
- Whether a question of mixed fact and law is sufficient to enliven the jurisdiction of this court was not the subject of submission. Similarly, whether there must be a “pure” question or error of law was not argued.
- In the appellant’s written submissions it was argued that the Vice President had applied an incorrect test when arriving at her conclusions. Although that was not made explicit in the application to appeal, it does constitute an assertion of an error of law. That assertion, though, was directly contradicted by another submission made by the appellant to the effect that the Vice President had “posed the correct onus and test”.
The grounds of appeal
- In Appeal C/2018/20 the appellant refers to the findings of the Vice President (having accepted the evidence of Associate Professor Williams) that:
- (a)the inactivity due to the hernia and recovering from the hernia surgery probably tipped the scales in favour of the appellant having lower back pain, and
- (b)there was a series of contributing factors to the pain and its onset and that each had a role, including his weight, aerobic pre-conditioning, smoking, psychiatric condition and a level of interactivity.
- The appellant argues that, having accepted that evidence, the Vice President erred in finding:
- (a)that the back pain was caused by “the degenerative process fundamentally” when that evidence was either a comment about people in general or if it was about the appellant specifically, then it ought to be read with the balance of the answer and in the context of the totality of the evidence,
- (b)that the back pain occurred as a result of the degenerative condition occurring generally, when that was contrary to the totality of the evidence, and
- (c)that the period of convalescence associated with the hernia incident was not a significant contributing factor to the appellant’s back pain in November 2014 when that was contrary to the totality of the evidence.
- It is accepted by the parties that the outcome of appeal C/2018/21 will be determined by the outcome in C/2018/20.
- The Vice President found that she could not rely upon the evidence of the appellant for any matter of importance and, for that reason, relied upon the clinical notes taken by the various doctors who had examined the appellant. This was set out in some detail in  of her reasons. That finding is not challenged.
- The appellant contends that, given the accepted evidence of Associate Professor Williams, the Vice President erred in holding that:
- (a)the degenerative process fundamentally caused the back pain,
- (b)the degenerative condition generally caused the back pain, and
- (c)the period of convalescence associated with the hernia was not a significant contributing factor to the appellant’s back pain in November 2014.
- It is argued by the appellant that those “errors” came about because of one or more of the following:
- (a)the Vice President misunderstood the totality of the doctor’s evidence, or
- (b)she applied the wrong test or misapplied the correct test, or
- (c)she drew inferences contrary to the totality of the accepted evidence.
- Further, the appellant says that the error was that, once degeneration was found to be a significant contributing factor, the period away from work was found not to be a significant contributing factor. That, it is said, is not the test. The only question which should have been posed was whether the inactivity was a significant contributing factor.
- The Vice President provided a detailed summary of the evidence of each of the medical practitioners who gave evidence.
- Part of Associate Professor Williams’ evidence was recorded in this way:
“ The Associate Professor was then asked to rank the co-factors that he had referred to in terms of what was more likely to be the explanation for the onset of symptoms that the Appellant was talking about. He responded by saying that the degenerative factor as opposed to the aerobic deconditioning/increased body mass index was the primary cause of the Appellant’s pain. The Associate Professor said that the onset of symptoms of lower back pain in November 2014 could have occurred as a result of the degenerative process alone, however, there was also the period of inactivity in October/November 2014 which may also have contributed.
 According to Associate Professor Williams, being inactive for a month was possibly enough in a patient with the intercurrent factors associated with the Appellant, for the Appellant to have developed lower back symptoms given that he was prone to developing those symptoms. When it was suggested to him that the only external factor to the onset of lower back pain was the period off work, the Associate Professor said but that was superimposed on his increased body mass index, low aerobic capacity, smoking behaviour and his intercurrent psychiatric illness. All of these factors predisposed lower back pain. One way of putting it, according to the Associate Professor, was that it was the straw that broke the camel’s back. Each of these triggers are significant and the inactivity due to a painful hernia and recovering from the hernia surgery probably tipped the scales in favour of the Appellant having lower back pain when he was possibly holding his own before that.
 In re-examination the Associate Professor was asked whether the cause of the pain was the period of inactivity or the pre-existing degenerative condition and he responded that the ‘pain is caused by the degenerative process fundamentally’. In the Appellant there are a series of contributing factors to the pain and its onset and each has a role i.e. his weight, his aerobic pre-conditioning, his smoking behaviour, his psychiatric condition and the level of inactivity.”
- Given the basis of the appellant’s case, it is necessary to set out, in some detail, the conclusions of her Honour with respect to the medical evidence concerning the appellant’s back pain. She said:
“ As for the medical evidence of the Appellant’s low back pain, I prefer the evidence of Associate Professor Williams as to the cause of the Appellant’s back pain i.e. that the Appellant’s degenerative process was generally responsible for any low back pain suffered by the Appellant. That the Appellant was suffering pain in the lower back as a result of a worn disc and that the pain in the lower back was possibly being perpetuated not only by the wear changes, which are able to be observed on the radiological imaging, but also by the Appellant’s increased body mass index and his reduced cardiovascular conditioning.
 Associate Professor Williams said the GP’s records of 18 and 20 March 2013 and the account of a three year history of lower back pain with occasional radiation of pain down into the right leg contained in Dr Powell’s medical report, confirmed his diagnosis that the pain began as a result of a degenerative process with the superimposed factors of increased body mass index and reduced cardiovascular conditioning.
 In ranking the co-factors that Associate Professor Williams had referred to in his evidence, he said that the degenerative factor as opposed to the aerobic deconditioning/increased body mass index was the primary cause of the Appellant’s pain. The Associate Professor’s evidence was that the symptoms of lower back pain in November 2014 could have occurred by itself without any period of inactivity.
 The period of inactivity, according to the Associate Professor, was not the only external factor that contributed to the Appellant’s low back pain. The Associate Professor said that the external factors included the Appellant’s increased body mass index, his low aerobic capacity, his smoking behaviour and his intercurrent psychiatric illness. Associate Professor Williams said that all of these factors predisposed the Appellant to lower back pain. When asked whether the period of incapacity both prior to and following the hernia surgery was the cause of the Appellant’s low back pain, Associate Professor Williams said that the Appellant’s ‘pain is caused by the degenerative process fundamentally’.
 Dr Kilian, in relying upon the historical account provided to him, based his opinion contained in his medical report on the fact that there had been only one entry of pre-existing back pain and no history of the Appellant using Mersyndol. His evidence was that such information was very important when looking at what might have contributed to the Appellant’s back injury. Dr Kilian in evidence agreed that what was shown on the MRI was a degenerative process which was a naturally occurring degenerative process. Dr Kilian also stated that if the history provided to him by the Appellant was not accurate then he would need to revisit his opinion.
 Dr Kilian stated that the level of degenerative change shown on the MRI was a little bit more than the natural degeneration one might find in a male of 26 years of age and that if he had been older Dr Kilian said that he would have opined that 100% was degenerative in development.
 Dr Kilian in oral evidence said that the pain experienced by the Appellant was what one would expect from someone with a degenerative condition in that the pain does not have to be regular, but that there is a reporting of back pain. He also noted that obesity was also another risk factor. Dr Kilian agreed that given the Appellant’s previous degenerative condition and the risk factors that the Appellant had, it would not be surprising that the Appellant would be describing back pain in November 2014.
 Given Associate Professor Williams’ analysis of the Appellant’s low back pain and the evidence of Dr Kilian’s concerns about his original opinion given that relevant information provided to him was lacking in some significant aspects, I accept that the back pain suffered by the Appellant in November 2014 and beyond was significantly caused by a degenerative naturally occurring condition. The back pain is thus not compensable as there was no connection with the Appellant’s work and it did not result from the hernia surgery or the period of convalescence associated with the hernia incident.
 The Appellant’s low back pain thus did not arise out of, or in the course of, the Appellant’s employment at BWS. Nor was the Appellant’s employment a significant contributing factor to his low back pain. The low back pain results from a degenerative, naturally occurring, condition.”
- The appellant argues that, on all of the evidence, the back pain started while Mr Alborough was waiting for his hernia operation and that it occurred, at that time, as a combination of:
- (a)degeneration of his lower back,
- (b)his weight,
- (c)his smoking, and
- (d)his inactivity from not working.
- That set of conditions was all part of the background to the appellant’s lower back pain. But the appellant says that the inactivity was a significant contributing factor for two reasons. That, it was argued, was supported by comments by Associate Professor Williams. Those comments were: that “it was the straw that broke the camel’s back” and “it probably tipped the scales in favour of having lower back pain”. It is necessary to examine those comments in greater detail because they must be read in context. In cross-examination he said:
“MR HORVATH: So this is the – so in terms of the internal and the external, the only trigger or the only external factor is this period off work? --- Yeah, it was – yes, but that’s superimposed on his increased body mass index, low aerobic capacity, smoking behaviour, intercurrent psychiatric illness. All of those factors predispose lower back pain, so perhaps you could phrase it, your Honour, as if it was the straw that broke the camel’s back. It might be one way of putting it.
Yes. We call it the egg shell skull rule. Are you familiar with the ---? --- No.
--- Concept? The idea is that if someone walks around and taps people on the head with a hammer, one can’t then complain if you tap someone on the head and they’ve got a weak skull. You shouldn’t be tapping people on the head with the hammer is the point.
HER HONOUR: I think – I think it goes a bit more. What the doctor has said is he had all of these factors.
MR HORVATH: Yes.
HER HONOUR: And this one just contributed at the end.
MR HORVATH: Well, no, this is the trigger that makes – well, sorry, am I right, Doctor? You can have these. Let’s say he’s a time bomb. He’s going to go off at some point. Is that a good analogy? --- I think that there were a number of factors which predisposed this man to have lower back pain.
Yes? --- They are all significant and that a period of inactivity due to a painful hernia and recovering from surgery from a hernia probably tipped the scales in favour of having lower back pain when he was possibly holding his own before that through means undetermined, your Honour.” (Emphasis added)
- It should be noted, as it may have played some part in the formulation of the appellant’s argument, that the so-called “egg shell skull” rule relates to the assessment of damages. It is a principle of compensation, not of liability. And it is not a useful analogy when one is seeking to determine the cause (rather than the consequences) of an injury.
- The evidence from Associate Professor Williams, specifically referred to by the appellant in his written submissions on this point and set out above, does not compel a finding that inactivity was a significant contributing factor. The fact that the doctor referred to “tipped the scales” is more consistent with a finding that inactivity was a lesser factor but that it had a triggering effect.
- The Vice President carefully considered the evidence of Dr Kilian in her reasoning. I do not accept that the appellant is correct when he submits that there was a preference expressed for the evidence of Associate Professor Williams in the sense that all of his evidence was accepted and Dr Kilian’s was not. Her Honour did say that she preferred the evidence with respect to the appellant’s back pain but Dr Kilian’s evidence was not disregarded.
- In any event, the Vice President was entitled to rely upon the evidence of Associate Professor Williams given the findings that she had made with respect to the reliability of the appellant. In examination in chief, he gave the following evidence about the history supplied by the appellant to him:
“Is there any significance about that history in terms of the – your diagnosis? --- I think that’s in keeping with my diagnosis, that the pain began as a result of a degenerative process with the superimposed factor which I described.
All right. And I spoke before – there was a history that Mr Alborough gave to Dr Gerard Powell – this is on the 26th of July 2013 – that he had – he’d had lower back pain for the last three years with occasional radiation of pain down into the right leg, and he’d also had to take Mersyndol for that in the past. Again, does that have any relevance to the diagnosis that you’ve expressed? --- Well, it sounds to be further confirmation that the – that the process has been one of a degenerative nature, which is the – given the history being typical of that type of process.
Yes. Now back to your report. On page 4 … you said that there’s a possibility that the deconditioning associated with not working and the lack of mobility since October 2014 has contributed to his current level of symptoms? --- Yes.
Can you explain what you meant by that? --- He’d undergone a – a procedure for a inguinal hernia and, as a result of either the hernia itself or the surgical recovery phase, it’s possible that his lack of activity may have led to even further aerobic deconditioning and, possibly, weight gain, and that those factors may have contributed to the underlying symptomatic discal degeneration process causing that to be exacerbated, not – not as a primary traumatic event affecting the disc, but as a combination of cofactors was which have caused the pre-existent process to become temporarily more symptomatic.”
- Later in his evidence, Associate Professor Williams said that “there appeared to have been a particular period of relative lack of activity, which I felt may have been a reasonable stimulus for the onset of the pain at that time. It could have occurred in the absence of that period of inactivity. It’s not possible to determine with accuracy whether that would have occurred or not.”
- The decision reached by the Vice President was the product of a close examination of all the evidence before her. It was not simply the result of allowing the principal issue to be decided by expert witnesses. It is inevitable that experts will express themselves in a manner consistent with the field of endeavour in which they have the relevant expertise. It often occurs that those expressions do not marry perfectly with the way in which conditions are expressed in the legislation. It is for the Commission to decide these issues, with the assistance of medical opinion, and after weighing up those matters which are accepted and those which are not. As was said in Davidson v Blackwood it is not for expert witnesses to determine whether or not a particular matter is a significant contributing factor, it is for the Commission to do so on the basis of the evidence received.
- In this case, the appellant has not demonstrated any error in the approach taken by the Vice President to the evidence before her. Her findings were consistent with the bulk of the accepted evidence and were not inconsistent with other findings that she had made. To say, as Associate Professor Williams said, that some particular event was the “straw that broke the camel’s back” does not, as the appellant appears to suggest, elevate that particular event to being a significant contributing factor. That is just an example of the approach which I do not accept in this case.
- The application to appeal C/2018/20 is dismissed. It was common ground that the result in the first appeal would dictate the result in the second. The application to appeal in C/2018/21 is dismissed.
  QIRC 110 at .
  ICQ 008 at .
 And, before the Industrial Relations Act 2016, the Industrial Relations Act 1999.
 See, for example, Nutley v Workers’ Compensation Regulator  ICQ 002 at .
 See, for example, Commissioner of Taxation v Desalination Technology Pty Ltd (2015) 66 AAR 553;  FCAFC 96.
 Hearing T7-53, 54.
 Tame v New South Wales (2002) 211 CLR 317 at 359.
 Hearing T7-41, 42.
  ICQ 008.
- Published Case Name:
Tyson Alborough v Workers' Compensation Regulator
- Shortened Case Name:
Alborough v Workers' Compensation Regulator
 ICQ 20
10 Dec 2019