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  • Unreported Judgment

Starling v Workers' Compensation Regulator

 

[2020] QIRC 39

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Starling v Workers’ Compensation Regulator [2020] QIRC 039

PARTIES:

Starling, Scott David

Appellant

v

Workers' Compensation Regulator

Respondent

CASE NO:

WC/2018/207

PROCEEDING:

Appeal against a decision of the Workers’ Compensation Regulator

DELIVERED ON:

11 March 2020

HEARING DATES:

15 October 2019 and 16 October 2019

DATES OF WRITTEN

SUBMISSIONS:

Appellant’s submissions, 12 November 2019

Respondent’s submissions, 28 November 2019

Appellant’s submissions in reply, 4 December 2019

MEMBER:

McLennan IC

HEARD AT:

Brisbane

ORDERS:

1.      The appeal is dismissed.

2. I will hear the parties as to costs.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS’ COMPENSATION REGULATOR – PHYSICAL INJURY – where worker employed as brickies’ labourer – whether worker suffered an injury – relevance of lack of contemporaneous medical records – recent invention – appeal dismissed.

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld) r 426, r 427, r 428

Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 32, s 132A 

Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) reg 105

OTHER:

J D Heydon AC, Cross on Evidence, 10th edn, 2014, LexisNexis, Sydney

CASES:

Adelaide Stevedoring Company Ltd v Forst (1940) 64 CLR 538

Alborough v Workers’ Compensation Regulator [2018] QIRC 110

Blackwood v Mana [2014] ICQ 027

Chattin v WorkCover Queensland (1999) 161 QGIG 531

Church v Workers’ Compensation Regulator [2015] ICQ 031

Commissioner of Police v David Rea [2008] NSWCA 199

Eaton v The Nominal Defendant [1995] QCA 435

EMI (Australia) Limited v Bes (1970) 44 WCR 114

Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190

Guymer v Workers’ Compensation Regulator [2018] ICQ 009

Holtman v Sampson [1985] 2 Qd R 472

Inderjit Singh v Minister for Immigration and Multicultural Affairs [1998] FCA 1366

Jones v Dunkel (1959) 101 CLR 298

Joseph Farrell AND Q-COMP (WC/2011/234) Decision

Joyce v Yeomans [1981] 1 WLR 549

Kavanagh v Commonwealth (1960) 103 CLR 547

Living Australia Pty Ltd v Rans Consulting Group Pty Ltd [2019] SASC 86

Misevski v Q-COMP (C/2009/29) – Decision

Monroe Australia Pty Ltd v Campbell (1995) 65 SASR 16

Obstoj v Van de Loos (Unreported, Supreme Court of Queensland, Connolly J, 16 April 1987)

Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844

Power v Torres Strait Island Regional Council [2011] ICQ 7

Qantas Airways Limited v QComp (2006) 181 QGIG 301

R v Boland [1974] VR 849

R v Koani [2017] 1 Qd R 273

R v Matthews (1988) 102 A Crim R 269

Ramsay v Watson (1961) 108 CLR 642

RHG Mortgage Ltd v Ianni [2015] NSWCA 56

Ribeiro v Workers’ Compensation Regulator [2019] QIRC 203

Rook v Crofts & Anor [2018] QDC 184

Rossmuller v Q-COMP (C/2009/36) – Decision

Saeed v Workers’ Compensation Regulator [2015] QIRC 28

Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262

Sotiroulis v Kosac (1978) 80 LSJS 112

Stark v Toll North Pty Ltd [2015] QDC 156

State of Queensland (Queensland Health) v Q-Comp and Beverley Coyne (2003) 172 QGIG 1447

The Nominal Defendant v Clements (1960) 104 CLR 476

Wentworth v Rogers (No 10) (1987) 8 NSWLR 398

White v State of Queensland (Central Queensland Hospital and Health Service) [2017] QIRC 041

APPEARANCES:

Mr M. Horvath, counsel instructed by Turner Freeman Lawyers for Mr Starling.

Mr C.J. Clark, counsel directly instructed by the Respondent.

Reasons for Decision

  1. [1]
    Mr Scott Starling started work as a brickies’ labourer for Mr John Hermann in 2007. 
  1. [2]
    It was a physically demanding job.  Mr Starling’s duties included using a buggy to move straps of bricks and barrowing mortar over to the bricklayers at the particular jobsite.
  1. [3]
    For at least the period 2007 to 2016, Mr Hermann operated his bricklaying business. 
  1. [4]
    On or about 21 May 2012, Mr Starling suffered a lower back injury while working for Mr Hermann.[1]  He did not apply for workers’ compensation at the time of this injury.  Even so, Mr Hermann gave him 2 – 3 weeks wages towards his recuperation period, in circumstances that will be further elaborated in this decision.
  1. [5]
    Mr Starling then left Mr Hermann’s employ.  He was off work for a period of between nine months and one year, following this 2012 injury.
  1. [6]
    Upon recovering sufficiently to re-enter the workforce, Mr Starling took a job as a delivery driver at Rainforest Tree Nursery.  He remained there for about two years.[2]
  1. [7]
    In June 2015, Mr Starling returned to Mr Hermann’s employ as a brickies’ labourer.
  1. [8]
    Mr Starling asserts that he suffered a second injury to his lower back (an aggravation of his 2012 lower back injury) in the course of his employment with Mr Hermann.
  1. [9]
    Mr Starling says that the injury occurred whilst he was operating a buggy to manoeuvre straps of bricks at the 106 Guara Grove, Ormeau jobsite on or around 13 June 2016

Claim details

  1. [10]
    A ‘Notice of Claim for Damages’ in relation to Mr Starling’s alleged 2016 injury was filed with the Workers’ Compensation Regulator on 2 June 2018, pursuant to s 132A of the Act.[3] 
  1. [11]
    The Regulator rejected Mr Starling’s claim for compensation on 9 November 2018.[4]
  1. [12]
    Mr Starling subsequently filed this appeal against the Regulator’s decision on 30 November 2018.

What legal tests must be satisfied for Mr Starling’s appeal to succeed?

  1. [13]
    The definition of injury, including an aggravation, per the iteration of the Act at the relevant time, was:

32    Meaning of injury

  1. (1)
    An injury is personal injury arising out of, or in the course of, employment if—
    1. for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury;

  1. (3)
    Injury includes the following—

  1. (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—
    1. a personal injury other than a psychiatric or psychological disorder;
    2. a disease;
    3. a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation;

  1. (4)
    For subsection (3)(b) and (ba), 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.
  1. [14]
    An injury arises out of employment where there is a causal connection between the employment and the injury.[5] 
  1. [15]
    The Act prescribes that an aggravation is an injury “…to the extent of the effects of the aggravation”.[6]
  1. [16]
    For an application made under s 132A to succeed, it must satisfy the requirements of s 132A(3)(c)(ii), namely the provision of ‘any other evidence or particulars prescribed under a regulation.’
  1. [17]
    Regulation 105 provides:[7]
  1. Application for compensation for assessment of DPI— Act, s 132A(3)(c)(ii)

For section 132A(3)(c)(ii) of the Act, the following evidence or particulars are prescribed—

  1. (a)
    proof of the injury and its cause;
  2. (b)
    proof of the nature, extent and duration of incapacity resulting from the injury.
  1. [18]
    An appeal such as this is a hearing de novo.[8]  Mr Starling bears the onus to prove, on the balance of probabilities, that he sustained an injury within the meaning of the Act.  As explained by Deputy President Merrell:[9]

The balance of probabilities test requires a court to reach a level of actual persuasion and that process does not involve a mechanical application of probabilities.

Summary

  1. [19]
    There is no dispute between the parties that:
  • Mr Starling was a worker within the meaning of s 11 and Schedule 2 of the Act, during the relevant period in 2016; and
  • Mr Starling suffered a lower back injury whilst working for Mr Hermann in 2012.
  1. [20]
    This case turns on whether or not Mr Starling is able to prove that he suffered a second injury in June 2016 (an aggravation of his 2012 injury) in the course of his employment with Mr Hermann that was a significant contributing factor to his lower back condition.
  1. [21]
    Mr Starling submits that:[10]
  • He was performing work duties for Mr Hermann at 106 Guara Grove, Ormeau on or about 13 June 2016;
  • He suffered a personal injury to his lower back on or about 13 June 2016, whilst operating a brick buggy at that jobsite;[11]
  • His 2016 injury was an aggravation of the 2012 injury;[12]
  • The injury arose during the course of his employment with Mr Hermann;
  • His employment was a significant contributing factor to the development of the injury; and
  • Proof of the injury and its cause, together with proof of the nature, extent and duration of incapacity resulting from that injury, has been provided; particularly with respect to the report of Dr Pascoe and his own testimony.
  1. [22]
    The Regulator submits that:
  • Mr Starling did not suffer an aggravation to his 2012 lower back injury on or about 13 June 2016 whilst working for Mr Hermann at 106 Guara Grove, Ormeau.  Hence, he has not suffered an injury within the meaning of the Act;[13] and
  • Mr Starling has not provided proof of the injury and its cause, together with proof of the nature, extent, and duration of incapacity resulting from the injury.

What are the key questions to be determined?

  1. [23]
    The questions to be determined are:
  1. Did Mr Starling suffer an aggravation of his existing lower back injury on or about 13 June 2016 arising out of, or in the course of, his employment? 
  1. If so, was his employment a significant contributing factor to that aggravation?
  1. Has Mr Starling provided proof of the injury and its cause, together with proof of the nature, extent, and duration of incapacity resulting from the injury?
  1. [24]
    In my view:
  1. Mr Starling did not suffer an aggravation to his existing lower back injury on or about 13 June 2016 at 106 Guara Grove, Ormeau, and so has not suffered an injury within the meaning of the Act.
  1. Mr Starling’s employment was not a significant contributing factor, as an aggravation did not occur.
  1. Mr Starling has not provided proof of the injury and its cause.
  1. [25]
    My reasons follow.

 Was Mr Starling injured at work on or about 13 June 2016?

What did Mr Starling say?

  1. [26]
    Mr Starling attests that on or about 13 June 2016, he was labouring for Mr Hermann at the Guara Grove jobsite. 
  1. [27]
    On that day, Mr Starling was operating a buggy to move bricks around the jobsite.  Pictures of similar brick buggies were tendered,[14] and Mr Starling motioned to demonstrate how the buggy was used when giving evidence.
  1. [28]
    Mr Hermann and Mr Starling were in agreement about the basic design and function of a buggy.  A buggy is used to move straps of bricks.  It has two wheels and a vertical metal frame, with handles around nose height on Mr Starling who is 165cm tall.[15]  Close to the ground, there are two prongs or ‘lugs’ which slide into the holes in the lower row of bricks.  To operate the buggy, the labourer reaches up to the handles and then pulls back, tilting the strap of bricks backwards onto the buggy.  Once so loaded on the buggy, the bricks can then be pulled, pushed or otherwise transported to where the bricklayers require them on the jobsite.
  1. [29]
    Mr Starling contends that the bricks used at that site were 2.2 kilograms each, with 96 bricks in a strap, for a total load weight of approximately 211 kilograms.[16]  The buggy itself weighed an additional 35 to 40 kilograms.[17] 
  1. [30]
    He testified that he placed his right foot on the buggy, and his right hand on the strap of bricks for a ‘split second’ at around shoulder height, to gain some leverage and help him lean the bricks back onto the buggy.[18]  His left leg was on the ground, acting as a counterweight behind him.  He then pulled the bricks with his hand and jerked them backwards with the trolley simultaneously.[19] 
  1. [31]
    Mr Starling recounted the event that unfolded:[20]

Well, in the morning I already loaded out a couple of straps of bricks to the right-hand side of the house.  I was about to move the fifth or sixth one.  I was operating the brick buggy to move that.  As I stood up on the crossbar underneath the tyres, I gripped the handles.  As I pulled and brought it down, that’s when I felt severe pain in my back.

  1. [32]
    He testified that the pain was in the same lower back spot where he had suffered the 2012 injury.[21]  When asked to rate his pain on a scale, Mr Starling said that before he operated the buggy that day, he was feeling pain as one and a half out of ten, due to his 2012 injury.  But immediately after the incident, and since, his pain level increased to a three or four out of ten.
  1. [33]
    Mr Starling says he let out an ‘ouch’ and held his back, commenting to Mr Hermann ‘I think I’ve done my back in again’.  Mr Hermann is said to have replied ‘Well, see if you can take the bricks over to where they have to go… then we’ll call it a day’.  Then telling Mr Starling to go home, rest, and not have any more days off because “I need you on the job, Scotty”.[22]  Mr Starling then packed up and went home.
  1. [34]
    Mr Starling recalled that he mentioned the incident to his (then) partner that evening and also to his mother in a telephone conversation a day or so after the June 2016 event.  Both of these potentially self-corroborating witnesses raise further issues. 
  1. [35]
    The absence of Ms Jeffrey’s evidence raises a question of whether a Jones v Dunkel inference should be drawn. 
  1. [36]
    With respect to Mr Starling’s mother, the question is whether her evidence was made admissible by virtue of what Mr Starling’s counsel believed to be a recent invention assertion made to Mr Starling in cross-examination. 
  1. [37]
    I will deal with each of these issues later in this decision.
  1. [38]
    Determining whether or not the events recounted by Mr Starling was likely to have occurred, on the balance of probabilities, requires broader consideration the facts and circumstances.

Did Mr Starling’s doctors make a contemporaneous record of his alleged 2016 injury?

  1. [39]
    In short, I find that they did not.
  1. [40]
    Subsequent to his alleged injury on or about 13 June 2016, Mr Starling initially consulted three medical experts: Dr Jin, Dr Grimes, and Dr Din. Evidence from each of these medical experts was tendered at the hearing.
  1. [41]
    If it was to be accepted that Mr Starling suffered a further injury resulting in a distinct increase in his level of pain (from one and a half, up to three to four out of ten), then it would reasonably follow that he would seek medical advice for it.  Or alternatively, at the very least, that Mr Starling would mention it when consulting a doctor about another health concern in the months following. 
  1. [42]
    The evidence supplied by these three medical experts does not support Mr Starling’s testimony that he did so.

What did Dr Shihui Jin say about an alleged 2016 injury?

  1. [43]
    Dr Shihui Jin was a General Practitioner at Medicross Victoria Point Medical Centre.  He gave evidence that Mr Starling was his patient there during 2016.

Consultation notes

  1. [44]
    Dr Jin prepared notes after a number of consultations with Mr Starling in 2016.[23]

23 May 2016 Consultation

  1. [45]
    This consultation occurred a few weeks prior to the alleged 2016 injury.  The reason for the visit was listed as ‘Depression’.  In addition to the psychological symptoms, Dr Jin noted that Mr Starling also had ‘Right elbow pain a few weeks’.

2 August 2016 Consultation

  1. [46]
    This consultation occurred some 7 weeks after the alleged 13 June 2016 injury.  It is the closest in time medical examination of Mr Starling following that date.
  1. [47]
    Dr Jin listed the reason for this visit as ‘Bell’s Palsy’.  He diagnosed Mr Starling with the condition and recorded a number of symptoms including tingling tongue and lips, coupled with facial numbness.  He also wrote:

2. Long term history of lower back pain many years.  History of working as a brick layer and injured his back.  Discussed the nature of chronic lower back pain and care plan for the long term treatment.

  1. [48]
    In his ‘Examination’ section, Dr Jin made no reference to Mr Starling’s back.

5 August 2016 Consultation

  1. [49]
    The consultation notes on this day are very limited.  They simply provide:

No worsening of his symptoms.

Blood results explained.

  1. [50]
    The reason for visit was listed as ‘Review’.

15 November 2016 Consultation

  1. [51]
    The reason for visit was listed as ‘Referral letter’.  The ‘Actions’ section recorded the referral of Mr Starling to ‘Mr Robert Din’.  The other notes provided:

Chronic back pain 4 years.

Needs early release from superannuation.

Needs specialist assessment to fill out the form.

17 November 2016 and 5 December 2016 Consultations

  1. [52]
    The 17 November 2016 entry only records the status of ‘No adverse drug reactions’.
  1. [53]
    The reason for visit for the 5 December 2016 consultation was ‘Biopsy of skin’, relating solely to Mr Starling’s skin lesion.
  1. [54]
    Neither notation made regarding these last two consultations makes reference to Mr Starling’s back.

Sunsuper Medical Attendant’s Statement

  1. [55]
    Dr Jin prepared this statement for Mr Starling, as a result of the referral to Dr Din.[24]
  1. [56]
    In Section 4 of that statement, the question posed is ‘What are the circumstances causing the injury?’  Dr Jin wrote ‘Over years of work as a bricklayer’.[25]

Oral testimony

  1. [57]
    Dr Jin confirmed that the purpose of the Sunsuper Medical Attendant’s Statement was for Mr Starling to access ‘a total and permanent disability payout with a superannuation policy’.[26]
  1. [58]
    Dr Jin had no independent recollection of seeing Mr Starling on 2 August 2016.[27]  In cross-examination, Dr Jin acknowledged that he took clinical notes for the purpose of preserving a record for future reference by himself or other medical practitioners, and that he notes down as much information as the patient gives.[28]  The following exchange then occurred:

If – and I stress the word “if” – if it had been the case that in the course of that consultation Mr Starling had told you that he was injured on a particular day, recently, in June, and that

information was given to you as to how he was injured, what do you say to the proposition if he’d told you that, that you would have recorded it?---Yes, of course. If he had told me that this injury, the date of the injury determined, I would have documented that.

  1. [59]
    On the contrary, Mr Starling submitted that he told Dr Jin about his alleged injury in June 2016, though not in any great detail.  In the alternate, it was suggested that if Mr Starling did not tell Dr Jin on 2 August 2016, it was because the consultation was only 20 minutes and primarily related to his Bell’s Palsy, which was frightening and at the forefront of his mind at that time.[29]

Consideration of Dr Jin’s evidence

  1. [60]
    Dr Jin’s consultation notes and oral testimony evidence to my satisfaction that he understood the purpose and value of making such contemporaneous notes and made faithful records accordingly. 
  1. [61]
    When asked whether he would record the details of a particular injury if it were described by Mr Starling, his response was emphatically in the affirmative. 
  1. [62]
    I find it implausible that Mr Starling could sustain an injury that caused, on his account, an immediate and significant increase of his pain and not seek any medical attention for some 7 weeks. 
  1. [63]
    Even if the alarming onset of the Bell’s Palsy condition were to explain Mr Starling’s omission on 2 August 2016, it does not follow that he also failed to provide a timely report of the alleged 2016 injury to Dr Jin at any of the subsequent consultations in that year.
  1. [64]
    I do not accept that a credible explanation for such omission was Mr Starling’s understanding of Mr Hermann’s WorkCover insurance status, or lack thereof, on the basis of their reported 2012 conversation.  Whether or not Mr Starling believed he had recourse for workers’ compensation would have no bearing on him seeking medical assistance for any 2016 injury, just as he had done for his earlier 2012 injury.  Once again, doing so in circumstances where he did not believe he had any recourse to a WorkCover claim at that time.
  1. [65]
    Further, when Dr Jin completed the Sunsuper Medical Attendant’s Statement, the reason he described for causing the injury was explicit: ‘Over years of work as a bricklayer’.  If Mr Starling had specified any recent incident to Dr Jin, then he would have been prompted to include it; notwithstanding that statement was completed in tandem with Dr Din’s report.

What did Dr Andrew Grimes say about an alleged 2016 injury?

  1. [66]
    Dr Andrew Grimes, a General Practitioner, provided a medical history of Mr Starling dated 5 December 2016.  That was tendered by consent at the hearing.  Dr Grimes was not called to give evidence in these proceedings.

Consultation notes

  1. [67]
    The only note made by Dr Grimes of apparent relevance to these proceedings is dated 11 November 2016.  That entry provides that Mr Starling’s attendance related to seeking access to his superannuation benefits, as a result of a long-term back injury.[30]

Consideration of Dr Grimes’s evidence

  1. [68]
    While the Regulator’s counsel initially sought to question Mr Starling about that history, an objection from Mr Starling’s counsel resulted in that question being unanswered.  Neither party recast or otherwise pursued further questioning of Mr Starling about that history, so its value in these proceedings is quite limited. 
  1. [69]
    However, it does represent a further instance where Mr Starling would have been reasonably expected to detail any recent and significant injury to the doctor, had it occurred in the manner Mr Starling described.  Dr Grimes’s records do not provide any details of such recount.

What did Dr Robert Din say about an alleged 2016 injury?

  1. [70]
    Dr Shihui Jin referred Mr Starling to Dr Robert Din, a Consultant Orthopaedic surgeon.
  1. [71]
    Mr Starling attended a consultation with Dr Din on 15 November 2016.

Medical reports

  1. [72]
    Dr Din prepared two medical reports for Mr Starling as a result of that consultation: the first report was dated 15 November 2016;[31] and a second report dated 4 April 2017.[32]
  1. [73]
    Dr Din stated that Mr Starling was referred for the purpose of reviewing his case and examining his back pain, so that Mr Starling might access his superannuation.  That was also the understanding of Mr Starling.[33]
  1. [74]
    Dr Din provided the following diagnosis:

(S)ignificant lower back pain and evidence of a condition called lumbar spondylosis, which is a degenerative condition of the lumbar spine, resulting in either posture or [indistinct] changes of the lower lumbar spine facet joints.[34]

Oral testimony

  1. [75]
    Dr Din had no independent recollection of Mr Starling describing the cause of his injuries as being work-related or otherwise and relied entirely on his notes in that regard.[35]
  1. [76]
    After confirming that Dr Din was familiar with the process of workers’ compensation claims in Queensland, Mr Starling’s counsel then engaged in the following exchange with Dr Din:

My point is this: in work-related matters, causation is relevant, as in you have to convince Work Cover that work is a significant contributing factor. That’s the case, isn’t it?---That’s correct, yes.

Whereas in a superannuation claim, work or any other cause doesn’t enter into the equation. The question is incapacity. Is that the case?---That’s correct. Yes.

  1. [77]
    Given he understood the workers’ compensation and superannuation claim process, it was put to Dr Din that he would have understood the import of the injury occurring at work.[36]
  1. [78]
    Dr Din agreed that he would have taken care to ascertain if Mr Starling had sustained any work-related injury.[37]  Yet none of Dr Din’s notes or records yielded any information in respect of a June 2016 work-related injury.[38]

Consideration of Dr Din’s evidence

  1. [79]
    Mr Starling testified that he told Dr Din about suffering a lower back injury in 2016.[39] 
  1. [80]
    In trying to explain away the discrepancy between his own testimony and that of Dr Din, Mr Starling relies on the same arguments made to account for the difference between his testimony and Dr Jin’s.[40]  Once again, Mr Starling submits that the focus of the consultation with Dr Din was on preparing his claim for TPD.[41]  Mr Starling’s counsel therefore suggests it is understandable either: that if the comment about a specific 2016 event was made, it was not noted; or alternatively, that the comment was not made.[42]
  1. [81]
    I will address each of those propositions.
  1. [82]
    Dr Din had no independent recollection of the consultation with Mr Starling. He relied upon his own consultation notes. Dr Din’s evidence regarding how own consultation process was clear and precise. Certainly, his reports were concise, but they were sufficiently specific. There is no evidence before me that Dr Din’s notetaking was deficient. 
  1. [83]
    Dr Din did not suggest that he would have limited his questions to that which may have been relevant to a TPD claim.  Dr Din testified that he would have been careful to ascertain whether there was any work-related injury and that no such information was provided by Mr Starling.  There was no qualification or caveat on that testimony to the effect that such a line of inquiry would not occur if the consultation only related to a TPD claim.  As such, the referral and subsequent consultation being primarily for the purposes of preparing a TPD claim are inadequate reasons for Mr Starling not to have told Dr Din about a 2016 injury, particularly in circumstances where Dr Din has testified he took care to ascertain whether such information existed.
  1. [84]
    Mr Starling testified that he told Dr Jin about his 2016 injury.[43]  However, on the evidence before me, that cannot be true.  If Mr Starling had spoken about a specific 2016 injury with Dr Din, that would have been recorded in Dr Din’s report. That finding unavoidably goes to Mr Starling’s credibility. 
  1. [85]
    I find that Mr Starling did not tell Dr Din about any injury to his lower back in 2016.

What did Mr Starling tell his solicitors about the alleged 2016 injury?

  1. [86]
    In October 2016, Mr Starling engaged solicitors.  Initially, that was to attain an early release of his superannuation, though subsequently a TPD claim was pursued, along with WorkCover claims.
  1. [87]
    Mr Starling provided a lengthy statement to his solicitor, taken on 28 November and 5 December 2016.  I note that is only 5 to 6 months after Mr Starling claims to have suffered the 2016 injury.  Mr Starling’s statement formed the basis of an affidavit to support an application to bring a claim for his 2012 injury out of time.  On that basis, Mr Starling’s counsel contends that it is to be expected that no mention of the 2016 injury would be included.[44]
  1. [88]
    Mr Starling’s statement includes extensive detail surrounding his 2012 injury, specifically in paragraphs 130 to 189 under the heading ‘Day of Injury’.  While he acknowledges that statement does not ‘literally’ detail a particular event on or about 13 June 2016,[45] it is suggested that two components of the statement allude to this:

on that job I remember that I had a week off because of my back

I remember at the start of that house when we loaded out after about four to six straps my back was sore and I had to leave work and go home and had about two to three days off.

  1. [89]
    Mr Starling submits that loading out four to six straps refers to the use of a brick buggy, and that the timeframe is also consistent with an injury occurring on or about 13 June 2016.  While that may be possible, the date of the alleged injury as ‘on or about 13 June 2016’ has only been proposed by Mr Starling subsequent to that statement being drafted.  This is significant as it would allow Mr Starling to fit his alleged 2016 injury to that timeframe, rather than the other way around.
  1. [90]
    As explored later in my examination of Dr Pascoe’s evidence, Mr Starling had told her that he took time off during that period of his employment with some regularity. 
  1. [91]
    I have struggled to reconcile Mr Starling’s testimony that the alleged 2016 injury caused him a significant increase in back pain and ended his ability to work as a brickie’s labourer only a few months prior on the one hand, with his exceedingly vague and limited recount of any 2016 incident in that statement to his solicitors.  That is particularly true when compared to the detail Mr Starling provided to other aspects of his employment, including the more historically distant lower back injury in 2012.
  1. [92]
    In seeking to explain that lack of detail, Mr Starling’s counsel submitted that Mr Starling is ‘not an academic, a lawyer or an educated person.’  My observation of Mr Starling as a witness was that he appeared quite capable of recounting and enunciating the events as he saw them.  He did so in significant detail at the hearing of this matter.  The level of Mr Starling’s academic attainment is not relevant to his ability to recall an event which he testified was monumental, both in the increase in resultant pain and the effect it had on the course of his future employment prospects.  I do not find that to be a convincing explanation as to why there is a conspicuous lack of detail regarding a 2016 injury in that draft affidavit, or indeed in nearly all of the medical reporting that occurred prior to the involvement of Dr Pascoe.   

What did Mr Starling tell the two doctors initially engaged by his solicitors about the alleged 2016 injury?

  1. [93]
    Mr Starling’s solicitors subsequently arranged for him to consult two medical experts, to inform investigations of the contributing causes of his back pain and the preparation of their medical expert reports: Dr Gamboa and Dr Storor.  Evidence from these two medical experts was tendered at the hearing.

What did Dr Gaugin Gamboa say about an alleged 2016 injury?

  1. [94]
    Dr Gaugin Gamboa, an Orthopaedic surgeon, examined Mr Starling on 2 March 2017.  He was not called to give evidence in these proceedings, as his report was tendered by consent.[46]
  1. [95]
    Mr Starling’s counsel submits that:
  • Dr Gamboa’s report was the result of a letter of instructions dated 1 March 2017 from Mr Starling’s solicitors;[47]
  • The consultation, as a result of that letter of instructions, was regarding Mr Starling’s prospective TPD and workers’ compensation claims; and
  • Mr Starling’s solicitor, at the time of drafting the letter of instructions, was investigating the contributing causes of the back pain.  In that regard, Dr Gamboa found that the ‘over a period of time duties’ did not contribute any more than any other daily activities engaged in by Mr Starling.

Medical report

  1. [96]
    Dr Gamboa’s report, which is signed on page 18, provides a specific undertaking that he has ‘complied with Rules 426, 427 and 428’ of the Uniform Civil Procedure Rules 1999. Rule 428 provides as follows (emphasis added):

428    Requirements for report

(2)  The report must include the following information—

  1. the expert’s qualifications;
  2. all material facts, whether written or oral, on which the report is based
  3. references to any literature or other material relied on by the expert to prepare the report;
  4. for any inspection, examination or experiment conducted, initiated, or relied on by the expert to prepare the report—
  1. a description of what was done; and
  2. whether the inspection, examination or experiment was done by the expert or under the expert’s supervision; and
  3. the name and qualifications of any other person involved; and
  4. the result;
  1. if there is a range of opinion on matters dealt with in the report, a summary of the range of opinion, and the reasons why the expert adopted a particular opinion;
  2. a summary of the conclusions reached by the expert;
  3. a statement about whether access to any readily ascertainable additional facts would assist the expert in reaching a more reliable conclusion.

(3)   The expert must confirm, at the end of the report—

  1. (a)
    the factual matters stated in the report are, as far as the expert knows, true; and
  2. (b)
    the expert has made all enquiries considered appropriate; and
  3. (c)
    the opinions stated in the report are genuinely held by the expert; and
  1. (d)
    the report contains reference to all matters the expert considers significant; and
  1. (e)
    the expert understands the expert’s duty to the court and has complied with the duty.
  1. [97]
    Mr Starling was very specific in his evidence as to what occurred in the consultation with Dr Gamboa.  He said:

I spoke to Dr Gamboa and he just asked me how I’d done my back. I told him how I’d done in 2012 and I told him it recurred again in 2016, and he just checked me over.

  1. [98]
    Mr Starling’s counsel does not suggest that Dr Gamboa was deficient in his report writing and therefore non-compliant with his obligations under the UCPR per se. 
  1. [99]
    A large portion of questions posed in the letter of instructions deal with the 2012 event. At Question 2 on page 12, Dr Gamboa was specifically asked:

Your opinion as to whether the cause of our client’s back injury can be related to the event on 21st May 2012 and/or his duties as a brickie’s labourer working for John Hermann over a period of time.

  1. [100]
    On that same page, Dr Gamboa’s answer concluded with:

I believe that the impairment measured in the section of Incapacity Assessment, is attributable to the singular incident occurring on 21st May 2012.

Consideration of Dr Gamboa’s evidence

  1. [101]
    If Mr Starling had, as he testified, provided specific advice to Dr Gamboa that a 2016 injury had occurred, it would have been incumbent upon Dr Gamboa to mention that event in his answer to that question.  If not there, then certainly I would expect such a significant event would appear elsewhere in a highly detailed report spanning some 18 pages, including an expansive opening section that was not limited to answering the specific questions posed about TPD and workers’ compensation claims.  In particular, at pages 6 and 7, Dr Gamboa details Mr Starling’s ‘Employment Record’, where he notes that he returned to work for Mr Hermann in 2015, he returned to full time employment around April 2016, his symptoms got progressively worse, and he ceased work completely by 24 June 2016.  Clearly, Dr Gamboa was engaging with Mr Starling about the relevant period of time and makes relevant notes in that regard.  Yet there is no mention whatsoever of a particular injury in June 2016.
  1. [102]
    I accept that the consultation was based on the letter of instruction, which particularised two purposes, being the TPD claim and workers’ compensation claim.  Even so, that would not preclude Dr Gamboa from including such a significant event as a 2016 injury in his report, if indeed Mr Starling had told him about it.  While I acknowledge Mr Starling testified that he had done so, the fact that such pertinent information does not appear in the report weighs against a finding that the June 2016 event occurred in the manner he described.

What did Dr David Storor say about an alleged 2016 injury?

  1. [103]
    Dr David Storor had a consultation with Mr Starling on 28 March 2017 and a report was produced.[48]  That consultation was based on a letter of instructions from Mr Starling’s solicitors that is almost identical to that which they provided Dr Gamboa.[49]  Dr Storor was not called to give evidence in these proceedings and his report was tendered by consent.

Medical report

  1. [104]
    It is not a matter of dispute between the parties that Dr Storor’s report was an assessment of Mr Starling’s psychiatric health - and was not focussed upon his orthopaedic issues which are the subject of this appeal.[50]  Mr Starling had little to no recollection of his attendance upon Dr Storor and could not recall precisely what he may have told him.[51]

Consideration of Dr Storor’s evidence

  1. [105]
    I note that Dr Storor’s report does not detail any particular workplace injury in June 2016, as described by Mr Starling.  However, I accept that the purpose of this report was to investigate a psychological injury, rather than a physical one.  As such, the weight I place upon the absence of detail about a 2016 injury in this medical expert report is minimal.  It may well be that it was simply not considered relevant to any psychological injury that may have been sustained by Mr Starling and Dr Storor was not called to explain this any further.

What else happened at the time Mr Starling lodged a WorkCover claim for the alleged 2016 injury?

  1. [106]
    Mr Starling’s submissions describe his lodgement of a WorkCover claim for the 2012 workplace injury after receiving Dr Gamboa’s report.[52]  That claim was filed out of time.  A compulsory conference to discuss that matter was scheduled for 8 March 2018.
  1. [107]
    The morning that conference was to be held, Mr Starling met his counsel Mr Horvath, for the first time.[53]  Of course, there was no evidence led about the contents of that legally privileged conversation. 
  1. [108]
    The scheduled conference was then adjourned as a result of that conversation, following Mr Starling providing instructions about a specific 2016 event. 
  1. [109]
    During the hearing, and in submissions, Mr Starling’s counsel was at pains to emphasise that the WorkCover claim for the 2012 injury has not concluded.  It was vigorously asserted ‘that is not the end of the matter’ and I was informed that an application for that claim to be heard out of time would be heard in due course.[54]
  1. [110]
    I accept that assertion and appreciate that said application for the extension of time may indeed be successful.  However, that does not change the fact that the claim being filed out of time does present a legal impediment to the claim proceeding, of which Mr Starling was well aware.
  1. [111]
    Put another way, as at 8 March 2018, Mr Starling understood that unless that application for an extension of time was successful, the WorkCover claim for his 2012 injury may well fail.  That was certainly the position of the solicitors acting for WorkCover in that matter, as they indicated in their correspondence that the offer to settle the matter for $0 reflected that legal impediment.[55]
  1. [112]
    The serendipity of Mr Starling’s revealation of a 2016 injury on that very day features in my assessment of whether the 2016 injury occurred.  A point not lost on the Regulator.
  1. [113]
    The Regulator’s counsel submitted those circumstances were not coincidental, observing that a 2016 injury would not face the same legal impediment of filing beyond the statutory time limit.  I find that argument persuasive.
  1. [114]
    It does not make sense for Mr Starling to withhold the fact of a 2016 injury - that was significant in both his level of back pain and career prospects - from his legal advisers until the very morning of a conference about a 2012 lower back injury which he knew to be out of time.  This weighs against a finding that such a 2016 event occurred.

What transpired between Mr Hermann and Mr Starling that led to his decision not to lodge a WorkCover claim at the time of the 2012 injury?

  1. [115]
    It is not disputed between the parties that Mr Starling suffered a lower back injury at work on or about 21 May 2012.
  1. [116]
    On 26 May 2012, Mr Starling consulted Dr Purdie about the injury and obtained a WorkCover medical certificate (Exhibit 1).  He also completed an application for WorkCover statutory benefits on that day (Exhibit 2). 

What did Mr Hermann tell Mr Starling about his WorkCover insurance?

  1. [117]
    Mr Starling provided the following oral testimony as to what occurred later that day:

Did you go and see John Hermann, though?---Yes, I did.

All right. Why did you go and see him?---I had to see John to pick up my car a week later, plus I took the WorkCover forms for him to fill in.

Was he there when you got there?---Yes, he was.

Did you have a conversation?---Yeah, we were standing in his driveway.

Do you remember the conversation?---Yes, I do.

So you had – I’m sorry, I’ve interrupted you. You had the forms with you in your hand?---I had the forms in my hand. I proceeded to give them to John Hermann and he asked, “What are they?” I said, “The WorkCover forms.” I said, “Can you fill them in?” and he said, “I can’t fill them in,” and I said, “Why not?” and he said, “I don’t pay WorkCover,” and I said, “You’ve got to pay WorkCover,” and that was – yes.

Well, is the last thing you saying, “You’ve got to pay WorkCover”?---Yeah, I said, “You’ve got to pay WorkCover.”

Yes. Did he respond to that?---He just said, “What I’ll do is I’ll give you three cheques for three weeks.”

All right. Did he in fact do that?---Yes.

After that day, what did you do with those – you call them “forms”?---Yeah.

So that application and that WorkCover certificate, what did you actually do with it?---Just took them back home and just put them in my file.

Well, did you lodge the application with WorkCover?---No, I didn’t.

Why not?---Well, I thought that – I didn’t know much about them. I thought John Hermann had to fill them in.

  1. [118]
    Mr Hermann’s testimony was that he largely could not remember that conversation.  He did recall that Mr Starling often parked his car at his house, had come to collect it on that day, and that he had paid Mr Starling for his time away from work (though on his recollection it was for two weeks rather than the three recalled by Mr Starling).[56] However, when asked whether he had told Mr Starling he could not complete the forms as he did not pay WorkCover, Mr Herman’s response was:

Why would I say that when I do pay WorkCover. I don’t remember the conversation.

  1. [119]
    As a direct result of what Mr Hermann told him, Mr Starling says he believed he could not access workers’ compensation - either for his 2012 injury or his later 2016 injury.[57]

Mr Hermann’s interactions with WorkCover

  1. [120]
    For the period 1 July 2011 to 30 June 2012, Mr Hermann declared to WorkCover that the actual wages paid to his employees was $8,000.[58]  He confirmed that those values must have come from him.[59] 
  1. [121]
    However, Mr Hermann also testified that Mr Starling was his employee throughout nearly all of that financial year, at least until his injury in May 2012.[60] 
  1. [122]
    Mr Starling was earning approximately $1,200 per week,[61] though I accept that value may have fluctuated depending on the hours worked.  As such, even if Mr Starling had worked only for $1,000 per week for the 46 weeks to 21 May 2012, that would total to $46,000 in actual wages. 
  1. [123]
    This evidence contradicts that of the telephone call conversation notes between WorkCover staff and Mr Hermann dated 13 October 2011 and 25 July 2012 (before and after the date of the 2012 injury) showing that Mr Hermann told WorkCover that he was not employing staff in that period.
  1. [124]
    Mr Starling’s counsel submits that such underreporting would afford Mr Hermann a financial advantage, in that his insurance premiums would be reduced.  I agree.
  1. [125]
    Mr Hermann’s dishonest wages declaration for the 2011/2012 financial year, together with false statements made in the course of his telephone conversations with WorkCover staff in the period surrounding Mr Starling’s 2012 injury, both reflect very poorly on Mr Hermann’s credibility. 

Consideration of the evidence about Mr Starling’s 2012 injury and failure to lodge a WorkCover claim in time

  1. [126]
    Mr Starling’s counsel submits:
  • Mr Hermann’s interactions with WorkCover reflect poorly on his credit;
  • Mr Starling went to the effort of obtaining the relevant materials from Dr Purdie and drafting a WorkCover application.  He then spoke to Mr Hermann; and
  • As a result of that conversation, Mr Starling did not file his application with WorkCover.  The reason he did not file his claim was that Mr Hermann had told him that he didn’t pay WorkCover.  Thus Mr Starling believed that he was unable to access any compensation for his injury.
  1. [127]
    On the other hand, the Regulator’s counsel submits that Mr Hermann did in fact pay WorkCover and would have no reason to tell Mr Starling otherwise.
  1. [128]
    In deciding the most likely course of events, I have carefully considered all oral testimony and exhibits on this point.
  1. [129]
    Mr Hermann’s recollection of these events was poor.  Given Mr Starling’s 2012 injury was some seven years prior to this hearing, that is somewhat understandable.  Particularly in a context where the incident apparently did not have any great personal import for Mr Hermann.  He confirmed that Mr Starling was paid for at least some period of his absence. 
  1. [130]
    I am unimpressed by the falsehoods in Mr Hermann’s statements to WorkCover regarding the nature of his workforce and wages bill.  I have earlier explained the impact it has on his credibility. 
  1. [131]
    Whilst Mr Hermann may have declared the payment of some wages to WorkCover, I believe he would have been concerned that his dishonest report may be uncovered if Mr Starling had made a claim at that time.  I find that was the reason Mr Hermann paid Mr Starling two or three weeks wages.  It is understandable that Mr Starling accepted this payment at the time, thinking he had no other avenue open to him, on the basis of what Mr Hermann had told him about his WorkCover insurance status.
  1. [132]
    In contrast, Mr Starling’s recollection of this event were both clear and well-supported by contemporaneous documentation and proximate medical attendances.  His explanation that the conversation commenced as a result of leaving his car at Mr Hermann’s house was corroborated to some extent by Mr Hermann when he confirmed that Mr Starling often did so.  Mr Starling clearly recalled the location, the context, and the outcome of the conversation.  Further, Mr Starling went to considerable effort to draft the WorkCover application and seek medical assistance and the appropriate WorkCover medical certificate from Dr Purdie.
  1. [133]
    For all these reasons, I prefer Mr Starling’s account of the circumstances of that conversation over that of Mr Hermann. 
  1. [134]
    I find that Mr Hermann told Mr Starling that he did not pay WorkCover.  As a direct result of that, Mr Starling believed that this rendered him unable to access WorkCover for his 2012 injury.  Only upon engaging legal representation did Mr Starling discover otherwise, leading to him making a WorkCover application for the 2012 injury.  I note that is both currently on foot and facing the hurdle of being out of time.

What did Mr Hermann say about an alleged 2016 injury?

  1. [135]
    Mr Starling submits that Mr Hermann corroborates his recollection of the June 2016 injury.
  1. [136]
    Upon Mr Starling’s return to his employ in 2015, Mr Hermann was aware of the 2012 back injury.[62]  He recalled Mr Starling working for him on the Guara Grove jobsite. 
  1. [137]
    In cross-examination, Mr Hermann was asked about the specifics of the 2016 event as recalled by Mr Starling.  He had no recollection of many of those details put to him.  He did recall that Mr Starling was working with the buggy on that site, as he often did as a brickies’ labourer.  He remembered Mr Starling complaining that his back was sore[63] and taking “maybe a day or two” off work.

Consideration of Mr Hermann’s evidence

  1. [138]
    In isolation, Mr Hermann’s testimony would seem to corroborate that of Mr Starling.  Though as Mr Starling had informed Dr Pascoe that, at and around that time, he was taking time off for his sore back with some regularity, this is more probably what Mr Hermann was recalling. 
  1. [139]
    Mr Hermann’s testimony did confirm some of the details of Mr Starling’s recount: namely the location, the use of the brick buggy by Mr Starling, and the approximate weight of the brick straps.  But Mr Hermann did not have a clear recollection of a precise June 2016 injury or event as described by Mr Starling.
  1. [140]
    Further, I have already found Mr Hermann to be an unreliable witness.  In addition to the issues of credibility, he had a very poor recollection of the events generally.  Somewhat understandable given the alleged event occurred three years prior to the hearing of this matter.

What did Mrs Rosalind Starling say about an alleged 2016 injury?

  1. [141]
    Mr Starling sought to call his mother to testify that he had told her about the June 2016 incident proximate to that time.
  1. [142]
    Such self-supporting evidence, whereby a party seeks to pull themselves up by their own bootlaces, is generally inadmissible.  One exception to that rule is where an accusation of recent invention exists.  I reserved my decision as to whether Mrs Starling’s evidence would be admitted until I heard the totality of the parties’ closing submissions, so that I could consider whether a recent invention accusation was in fact being made, in substance if not in form.

Recent invention

  1. [143]
    The concept of recent invention, and the commensurate admissibility of self-corroborating evidence, was explained by Weinberg J in Singh v Minister for Immigration and Multicultural Affairs (emphasis added):[64]

A finding of “recent invention” is one which is generally devastating to the credibility of the witness against whom it is made – so much so that the ordinary rules which preclude evidence of prior consistent statements from being led are subject to an exception in the case of an allegation of this nature – Nominal Defendant v Clements (1960) 104 CLR 476 at 477-80 per Dixon CJ, at 486-90 per Menzies J, and at 490-6 per Windeyer J. Although the term “recent” is frequently used in connection with this doctrine, “the adjective ‘recent’ is a misnomer and … the doctrine is concerned with any fabrication subsequent to the events in question but anterior to the trial”.

  1. [144]
    The Regulator’s counsel denied that an assertion of recent invention had been made, while Mr Starling’s counsel disagreed.[65]
  1. [145]
    Even so, the Regulator’s counsel said (emphasis added):

I’ve said what my submission will be – that you’re entitled to take a dim view of his credibility, given all of the occasions that he was asked by lawyers and doctors until, perhaps, the 8th of March 2018, to nominate that event and he simply didn’t. And, you know, that will include Dr Din, Dr Jin, Dr Gamboa, and also the fairly extensive statement which his own lawyers took from him. That’s the extent of what I’ll be putting to him so far as credit is concerned.

  1. [146]
    Given the significant risk that a finding of recent invention poses to a witness’s credit, fairness to the witness requires that a party asserting recent invention should do so specifically, so as to enable the witness to call self-corroborative evidence.[66]  Even so, in determining whether recent invention has been asserted to a witness in cross-examination, it is not necessary for the cross-examiner to expressly suggest to the witness that a statement is a recent invention.[67]  In the case of R v Boland [1974] VR 849, the Supreme Court of Victoria indicated that the “attack” of recent invention by the cross-examiner need not be express but can be imputed from the overall context of counsel’s questions, tone of voice and suggestions.[68]  A suggestion that a witness’s testimony was an afterthought from the event is recognised as a form of asserting recent invention.[69]  Prior consistent statements are also admissible where there are imputations and allegations that a witness’s testimony was the result of some motive operating from a particular time and not before.[70] 
  1. [147]
    Determining whether there was an assertion of recent invention to Mr Starling in cross-examination is fundamentally a question of substance rather than form.  So, in answering that question, it is relevant to consider the totality of the particular questions posed in cross-examination.
  1. [148]
    At the outset, the Regulator’s counsel confirmed with Mr Starling that “these events in June 2016 are pretty important, aren’t they?” to which Mr Starling replied “Yes”.[71]  Counsel then confirmed with Mr Starling that he understood there was a difficulty with his original claim for the 2012 injury.[72]  Counsel asserted that Mr Starling had seen a variety of people in the time between the alleged 2016 incident and commencing this appeal, including numerous doctors and his solicitors.  In particular, the Regulator’s counsel put it to Mr Starling that Dr Jin (who he had seen soon after the alleged June 2016 incident) had made no specific notation of a recent injury, asserting that this was “a pretty important detail” to be omitted.[73]  Then, when referring to the absence of any specific reference to a June 2016 incident in Dr Jin’s notes and recorded history, the Regulator’s counsel put the following to Mr Starling in cross-examination:

Now, that’s all he’s recorded. I’m suggesting to you that that’s all you told him. What do you say to that?---I, I did say that to him but I had mentioned – I told him that I reinjured my back in 2016.

So you told – you gave him some elaborate detail – or some detail, at least, about the incident some weeks previously?---Yeah. I told him that I already had an incident in 2012 and then I mentioned to him that I re-done it again in 2016.

I see. Well, I’m suggesting to you that he certainly hasn’t recorded that, has he?---No. It’s not there.

And it’s a pretty important piece of detail, isn’t it?---Of course it is.

Okay. Now, your back pain continued to cause you problems, right? Okay? Is that so?---Yes.

There are further consultations with Dr Jin on the 3rd of August?---Yes.

There’s no mention of any back pain there, is there?---No.

Okay. Once again, there’s no reference to any special incident in June of 2016, is there?--- Well, there is because I have mentioned it.

What, you mentioned it again then, did you?---What do you mean “just then”?

On the 15th of November. Just – look, I’ll just stop for a moment. Doctors see patients, Mr Starling, and they take consultation notes?---Yes.

The usual expectation is that they write down important details that patients convey to them?---Yep.

You understand?---Yes.

That’s where I’m – that’s an underlying rationale of these questions. What I’m suggesting to you is that, clearly, there’s no record of a fairly important event, right, recorded by Dr Jin, is there?---No, not on here there isn’t.

No. So I’m suggesting to you, what do you say to the proposition that you didn’t tell

him about the event in 2016?---I’ll just say that’s untrue.

  1. [149]
    The Regulator’s counsel then attempted to conduct “exactly the same cross-examination” with regard to the records of at least one other doctor.[74]  No doubt that would have occurred, but Mr Starling’s counsel then objected, arguing that the witness should not be shown a document authored by another witness and then be asked to contradict himself.  I sustained that objection.
  1. [150]
    In considering the less tangible elements of the cross-examination, I found the tone of voice used by the Regulator’s counsel to address the witness on those matters to be accusatory, though it could not be characterised as either improper or undue.  I emphasise that my observations are precisely that and are expressly not a criticism of counsel or his methodology. 
  1. [151]
    The flow of questioning also seemed to indicate that the Regulator’s counsel sought me to conclude that Mr Starling knew the WorkCover claim for his 2012 injury faced difficulties and so was motivated to confect or embellish a later 2016 incident.  Further, that if Mr Starling did not raise it with his doctors and solicitors closer in time to the June 2016 incident, that it either did not occur or did not carry the same import to his injury as Mr Starling now places upon it.
  1. [152]
    I find that an assertion of recent invention can be imputed from a proper consideration of the totality of the cross-examination of Mr Starling by the Regulator’s counsel.  It follows that Mr Starling was then entitled to call self-corroborating evidence, namely that of his mother - Mrs Rosalind Starling.

Oral testimony

  1. [153]
    Mrs Starling testified that she was aware of her son’s back injury and said it was sustained from two accidents.[75]
  1. [154]
    She recounted that the first accident occurred in 2012, while Mr Starling was working for Mr Hermann.  She recalled that Mr Starling did not have a girlfriend at that time, though had a roommate.  That injury caused Mr Starling significant psychological and financial distress.
  1. [155]
    She also remembered a second accident, which she said occurred around the middle of 2016 or later that year.  Mr Starling was working for Mr Hermann at that time also.  He had a girlfriend named Felicity.  Mrs Starling had been living in Agnes Waters when she received a phone call from her son.  She could not recall whether it was the day of the incident, or the day afterwards, but said Mr Starling he had told her that he’d hurt his back again.  Her recollection was that Mr Starling had said “I’ve hurt my back again”, while moving bricks with a “brick carrier”.  When visiting her daughter in Brisbane shortly after that phone call, Mrs Starling found that her son had ceased work for Mr Hermann and had fallen into another deep depression.
  1. [156]
    In cross-examination, Mrs Starling provided that she had only been asked to recall those events two days before the hearing.  When queried as to whether, and how, she had a clear recollection of what happened in 2012 (some 7 years prior), she replied that she keeps diaries.
  1. [157]
    When asked whether she had consulted her diaries before providing her testimony, Mrs Starling said she had not, because “I’m down here and my diaries are up there”.  I take it that Mrs Starling means that she left her diaries at her home in Agnes Waters, situated on the Central Queensland coast.  It transpired that she was unsure whether information as to the events in question actually appeared in those diaries.  When further pressed as to her recollection and the value of those diaries, she responded that she did remember and that Mr Starling was her son.
  1. [158]
    The Regulator’s counsel then asked Mrs Starling what else had been spoken about in that phone call.  She asserted that Mr Starling had said he had hurt his back again, that he had done so by moving bricks, and that he did not receive any sympathy from Mr Hermann “again”.  When pressed to recall the specific wording, she could not say with confidence precisely what Mr Starling had said about Mr Hermann.
  1. [159]
    Mrs Starling was then asked whether she spoke to Mr Starling about his returning to work with Mr Hermann any time after that incident.  She provided that she had a clear recollection that Mr Starling did not go back to working with Mr Hermann after that 2016 event.[76]

Consideration of Mrs Starling’s evidence

  1. [160]
    Those diaries have never been sought to be tendered into evidence, either during or after the hearing.  The parties certainly were aware that they could seek leave to do so, as they did with some other evidence, namely Mr Hermann’s WorkCover invoices and communications report.[77]
  1. [161]
    In a Directions Order dated 30 November 2018 issued in these proceedings, Mr Starling was required to provide an outline of evidence for each lay witness to the Respondent by 3 May 2019.  On Mr Starling’s list of witnesses filed 3 May 2019, Mrs Starling does not appear.  There was no explanation provided as to why Mrs Starling’s evidence had suddenly become available, or known to Mr Starling, just two days before the hearing.
  1. [162]
    As his mother, it is entirely understandable that Mrs Starling expressed considerable emotion about Mr Starling’s situation, particularly his depression.  She purported to recall Mr Starling being injured both in 2012 and in 2016 with significant clarity, on the basis that she would write such events in her diary, although could not say with certainty that such an event in 2016 had indeed been recorded. 
  1. [163]
    Yet she also purported to recall with a degree of certainty that Mr Starling had not returned to Mr Hermann’s employ after the 2016 incident.  Mr Starling himself had sworn in testimony that he had.[78] Mr Starling’s recollection of the phone call was otherwise corroboratory.
  1. [164]
    I find it curious that Mr Starling’s mother was apparently only asked to recount 2012 and 2016 events some two days prior to the hearing of this matter.  No sufficient explanation has been provided for the recency of the discovery of that evidence. Certainly, Mr Starline was alive to the prospect of self-supporting evidence; in his statement of facts and contentions he recorded telling his (then) girlfriend about the incident. 
  1. [165]
    Mrs Starling appeared quite emotional about her son’s physical and psychological conditions, seeming eager to recall two events in 2012 and 2016 with little to no uncertainty.
  1. [166]
    Mrs Starling’s references to the keeping of diaries (which have not made their way into evidence) to explain her clear recall of conversations some years ago was also unusual.  Particularly in circumstances where she was uncertain as to whether they contained records of the relevant phone call and her testimony that she had not reviewed those diaries prior to her giving evidence.
  1. [167]
    While the basic components of a 2016 event as recounted by Mr Starling were corroborated, along with his testimony that he was living with his girlfriend at the time, Mrs Starling’s certainty that Mr Starling did not return to work after that incident is different to his own testimony, alongside other evidence, that he did in fact return to work two or three days later.
  1. [168]
    It is also relevant that Mr Starling’s Statement of Facts and Contentions filed in this matter on 1 March 2019, at paragraph 13, specifically provides that Mr Starling told his (then) girlfriend about his injury the night he purportedly sustained it in 2016.  Clearly, Mr Starling understood the import of self-corroborating evidence at that stage.  And yet, absent from the Statement of Facts and Contentions, is the inclusion of Mr Starling’s phone call to his mother telling her about the 2016 incident at that time. 
  1. [169]
    Despite numerous subsequent amendments to that Statement of Facts and Contentions, the conversation described by Mr Starling and his mother never appears. 
  1. [170]
    As to the issue of whether a phone call occurred in mid to late 2016, I do not find Mrs Starling’s evidence to be credible and so place little weight upon it. 
  1. [171]
    The complete absence of Mr Starling telling his mother about the incident in any earlier materials (including the statement provided to his solicitors in 2016 and the numerous amendments to Statements of Facts and Contentions filed in this matter), combined with my earlier findings as to Mr Starling’s credit in respect of his testimony that he had told various doctors about such event (when said event does not appear in their records), leads me to conclude that the phone call between Mr Starling and his mother to recount a specific injury occurring in 2016 did not happen at any time proximate to that purported injury.

Ms Felicity Jeffrey

  1. [172]
    In June 2016, Mr Starling had a partner named Felicity Jeffrey.[79]  Mr Starling says when he got home from injuring his back at work, he mentioned to Ms Jeffrey that he had hurt himself using a brick buggy.
  1. [173]
    The two separated approximately three years before the hearing of this matter and are not on speaking terms.  Mr Starling submits there was much acrimony in that separation. 
  1. [174]
    Ms Jeffrey did not give evidence during these proceedings.
  1. [175]
    Mr Starling’s counsel tendered affidavits from his solicitor and a paralegal in his solicitor’s employ,[80] to the effect that all reasonable efforts had been made to contact Ms Jeffery to appear as a witness in these proceedings, without success.
  1. [176]
    The question of whether a Jones v Dunkel inference should be drawn then arises.

What is the relevance of Jones v Dunkel to this matter?

  1. [177]
    Mr Starling’s counsel submits that an adverse inference should not be drawn against Mr Starling in circumstances where he did not call Ms Jeffrey as a witness, in accordance with the rule in Jones v Dunkel.[81]  This rule operates where there is an unexplained failure by a party to give evidence.  In appropriate circumstances, this may lead to an inference that the uncalled evidence would not have assisted the party.  However, unless the appropriate circumstances are present, the Commission will not be bound to draw the adverse inference.  Moreover, where the inference is drawn, the rule cannot be used to fill gaps in the evidence or to connect conjecture into suspicion.[82]  Importantly, such an inference “cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure”.[83]  The question of whether any such inference should be drawn in the circumstances is best answered after considering all the other evidence in the matter.
  1. [178]
    This Commission is empowered to depart from rigid application of the rules of evidence by s 531 of the Industrial Relations Act 2016 (Qld), though only in particular circumstances such as to allow the recall of witnesses where the rule in Browne v Dunn is concerned.[84]  In this instance, where both parties were represented by counsel, I see no reason for a departure from the rule in Jones v Dunkel on the basis of s 531.
  1. [179]
    Deputy President O’Connor, as he then was, summarised the relevant principles in Shane Joseph Farrell AND Q-COMP,[85] as follows:

The principle in Jones v Dunkel at its most fundamental is usually understood as an inference that can arise against a party who elects not to adduce evidence on a matter in issue.

Windeyer J, at 320 to 321, embraced the notion of "fear of exposure" on the part of the party who fails to call the witness, quoting Wigmore on Evidence:

"The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstances or document or witness, if brought, would have exposed facts unfavourable to the party."

In Manly Council v Byrne & Anor, Campbell J cited the joint judgment of Gibbs A-CJ, Stephen, Mason and Aickin JJ in the High Court's decision in Brandi v Mingot to support the proposition that:

"Insofar as the passage from Wigmore approved the drawing of an inference that a witness if called would have exposed facts unfavourable to the party who failed to call that witness, it is not the law in Australia. . . [L]ater cases confirm that the fullest extent of the inference which can be drawn is that the evidence which was not called would not have helped the party who failed to call the witness" and at paragraph 51:

"Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn."

  1. [180]
    The principles in applying the rule in Jones v Dunkel were succinctly reiterated in RHG Mortgage Ltd v Ianni.[86]  In that case, the New South Wales Court of Appeal held that the circumstances for drawing a Jones v Dunkel inference are found where an uncalled witness is a person presumably able to put the true complexion on the facts relied on by a party as the ground for any inference favourable to that party.  The three conditions to be applied are: first, whether the uncalled witness would be expected to be called by one party rather than the other; secondly, whether his or her evidence would elucidate the matter; thirdly, whether his or her absence is unexplained.  In that case, the court of appeal found that an adverse inference was open, as the witness would have been expected to be called and his evidence would have elucidated the matter, and his absence from the proceeding was unexplained.[87]
  1. [181]
    Mr Starling’s counsel submitted that a Jones v Dunkel adverse inference should not be drawn, or indeed is not open to be drawn, for two reasons.
  1. [182]
    First, that Ms Jeffrey was not in Mr Starling’s camp, as the pair are not on speaking terms following an acrimonious separation.  That question effectively relates to the first of the three criteria set out in Ianni.  I agree on that point.  Ms Jeffrey could not reasonably be expected to be called by Mr Starling, given those extenuating circumstances.
  1. [183]
    Second, that Mr Starling’s solicitor and a paralegal have both sworn affidavits that they have sought to contact Ms Jeffrey to give evidence and she was unwilling to do so on the basis of a recently-expired Domestic Violence Order which applied to Mr Starling and protected Ms Jeffrey.  That point is also accepted. 
  1. [184]
    The witness’s absence has been explained to my satisfaction, on the basis of: her not being on speaking terms with Mr Starling; being difficult to contact; and not being willing to attend and provide evidence.  That is the primary distinguishing feature in this case compared to the circumstances in Ianni.
  1. [185]
    As such, I do not draw an adverse inference against Mr Starling as a result of Ms Jeffrey not being called as a witness in these proceedings.  Neither can I draw a positive inference about what her testimony may have been.  The influence is neutral.
  1. [186]
    The question is then whether Mr Starling is to be believed in testifying that he told Ms Jeffrey about the injury occurring on the night of said incident in June 2016.
  1. [187]
    Given my previous findings as to Mr Starling’s credibility (namely that it was improbable that he told several doctors and his mother at a time proximate about a 2016 injury), I do not believe his testimony that he told Ms Jeffery about the June 2016 incident in the manner he so described.  Apart from his own testimony, there is no evidence to support Mr Starling’s assertion.

What did Dr Melinda Pascoe say about an alleged 2016 injury?

  1. [188]
    Following his revelation to his legal representatives about a 2016 injury, Mr Starling was examined by Dr Melinda Pascoe on 15 March 2019.  I note that was almost 3 years after the 2016 injury was said to have occurred. 
  1. [189]
    Dr Pascoe is a Consultant Neurologist and Neurophysiologist.
  1. [190]
    In accordance with a letter of instructions from Mr Starling’s solicitors, Dr Pascoe prepared a report which was tendered in these proceedings,[88] and was subsequently called to give evidence.
  1. [191]
    In the history section of that report, Dr Pascoe records that Mr Starling was initially employed by Mr Hermann before sustaining an injury in 2012 and seeking alternative employment.  He later returned to Mr Hermann’s employ.  In 2016, Mr Starling’s back began to “play up”.  Before any acute event was said to have occurred in June 2016:

He would work for a couple of days and then needed to take 2-3 days off because of increasing back pain.

  1. [192]
    In cross-examination, Mr Starling vehemently denied taking time off regularly around that time as a result of a sore back.[89]
  1. [193]
    Dr Pascoe’s report goes on to detail an event on 13 June 2016, where Mr Starling was “transporting” stacks of bricks using a trolley, whereupon his pain worsened.  Mr Starling then ceased work “about 1 month prior to the second project finishing”, before engaging in some light work.[90]  Dr Pascoe then said:

This history is substantiated by notes from the GP and also the chiropractor.

  1. [194]
    The report then makes reference to a chiropractor’s record on 21 May 2012 and some earlier chiropractic history, and also GP notes from 2017 providing that Mr Starling visited semi-regularly for lower back pain. 
  1. [195]
    Dr Pascoe’s report provides a different attribution to the reason for the back pain than that provided by Dr Gamboa.  At the time of examining Mr Starling, Dr Pascoe stated that there was both a 2012 injury and a subsequent 2016 injury which resulted in Mr Starling ceasing labouring work.[91]  Specifically, Dr Pascoe assessed Mr Starling as having a lumbar spine injury resulting in 6% WPI, apportioned as “4% in relation to the first injury in 2012 and 2% in relation to the second injury in 2016”.[92]

Oral testimony

  1. [196]
    Dr Pascoe said that her report was based on the perusal of documents, speaking with Mr Starling and a physical examination conducted on 15 March 2019. 
  1. [197]
    Dr Pascoe confirmed that Mr Starling had two back injuries: the first in 2012; and an aggravation of that injury in 2016.  Those injuries were muscular ligamentous in origin “on the background of degenerative back disease”.[93]
  1. [198]
    Mr Starling’s counsel then asked Dr Pascoe to explain, in layman’s terms, what injuries she believed Mr Starling had suffered:

What sort of an injury does he have from these events?---Right. Okay. So he has underlying degenerative back disease, which is a very common condition, but he has superimposed on that muscular ligamentous injury. So the muscles and the ligaments support the spine, so although – and are not seen on current imaging techniques. So you have muscles which you can feel running down your back, and you can feel them tensing if you extend your back, and those muscles form – and ligaments – form support around the bony structures. The bony structures are the vertebrae, which are separated by discs, and the discs are like soft pillows that give some flexibility and mobility to the spine. So he didn’t have – he had some degenerative changes there, from wear and tear and ageing, but superimposed on that was injury to the supporting structures.

Can I just use the example, then, your analogy of these pillows?---Yes.

So when you talk about degeneration, what does that – if we use the pillow analogy, what’s happening to these pillows?---Okay. Well, the pillow is actually like a cushion, and it has an elastic outer rim, which is relatively rigid, and inside is jellylike material. And the disc moves with the spine to cushion the bones. If you have excessive force between the vertebrae, those discs can degenerate, and the elastic outer layer of the pillow can be injured, and you can get the discs becoming more rigid and less – not taking the strain of the [indistinct] between the bones. If you have a more acute injury, sometimes the central jelly-like material can protrude through the damaged elastic outer layer. Does that make sense?

Yes. Yes. So just to make sure that we connect to this, then, these pillows – these discs that we’re talking about - - -?---Yes.

- - - is that the relevant body parts and the relevant injuries for this man?---No, no, no. Not in this man. This man – although he has some degeneration of those discs, it’s the other muscles – the paraspinal muscles running up and down the spine, and also the ligaments that bind or connect the muscles to the bony structures. So it’s a three-dimensional picture I’m trying to paint, here. So if you look at a column, you have the bones resting on top of each other with a soft pillow in between, and you see that on MRI. You can see those structures on MRI, but you cannot see the ligamentous structures and the muscular structures around the spine.

And am I correct that those muscles and the ligaments, they hold those pillows and the bones in place?---More the bones, not the pillows. The pillows are wedged between the vertebrae, so they maintain the column in the correct alignment.

What I’m interested in, then, is what events were described to you as causing or contributing to this man’s ultimate condition?---Yes. All right. If I go back to the history on page 4, Mr Starling himself said the major problem arose in May of 2012. And he suffered an acute injury at that time, when he was pushing a heavy wheelbarrow on uneven ground and felt a jolt in his back, and this caused him to  collapse with pain. This is a very common scenario, that when the back is put under excessive stress the muscles go into spasms to try and protect the damaged area, and that causes people to collapse and not be able to move because of the pain, and that’s what happened to this man in 2012. He then was assisted by his co-workers and sought medical help, and he took a short period of time off work – well, no, he had nine months off work – but accessed physical therapy, which is the [indistinct] treatment to access. But his back pain never recovered fully, and he continued to have ongoing low-grade back pain after that initial event. And, in fact, he changed his place of work because of that, and the nature of his work, because he was – felt he was unable to continue to work as a brick labourer, because of the physical demand. In 2016 he described that he was – he actually had to return to being a brick labourer because of financial considerations. And he recalls on 13/06 – this is page 5 of the report – that he was [indistinct] trolley to transport a stack of bricks, and it was during this pushing of this large stack of bricks that his back pain became worse and he then had to stop working soon thereafter.

  1. [199]
    By this line of questioning, Mr Starling’s counsel sought to clarify whether there was any relevant distinction regarding the cause of the 2016 injury.  That is, between Mr Starling’s recount that he had been lifting the bricks with the trolley and Dr Pascoe’s use of the terminology that Mr Starling was “transporting” the bricks.
  1. [200]
    The Regulator’s counsel objected at that point, on the basis that such material was not within Dr Pascoe’s report.  That objection was not upheld, as I found Mr Starling’s counsel was merely enquiring about Dr Pascoe’s terminology contained in her report, in particular what she understood the term to mean in context.  The following points of clarification were raised by counsel for Mr Starling:

Doctor, when you – on page 5 – mentioned “transporting” - - -?---Yes.

- - - you just said pushing, I think, or something like that?---No, I put “transporting”. So this encompasses pushing, pulling, it – I don’t think – the mechanism of injury can be any of those things. It can be pulling back: that is hyperextension of spine. It can be bending forward: that is flexion of the lumbar spine. Or it can be a rotatory movement. It’s not the actual absolute movement that’s important, it’s that the ligamentous and muscular structures are not healthy around the portion that’s being

moved.

So with that in mind, is a situation where someone is pulling on a trolley with 200 kilograms – is that within the scope of what you considered when you were using the word “transporting”?---Yes.

And is that consistent with causing an injury such as the one that this man has?---In my opinion it is, and I had thought, on that paragraph, that the sentences in – one following on the other, it was an assumption on my part that those two were related. And that’s what I meant to impart when I used the context of that sentence. So the two sentences following on. 13/06 he did something, soon after the pain became worse, and he had to stop working. And those were a direct connection.

  1. [201]
    In cross-examination, Dr Pascoe emphatically rejected that she had meant something different in the term “transporting” than the event as described by Mr Starling.  She elaborated that while the impression she got from the consultation was that Mr Starling sustained the injury while pushing or pulling the trolley, rather than the initiation of the movement as described by Mr Starling, she did not specifically ask that question of Mr Starling.[94]
  1. [202]
    In Dr Pascoe’s opinion, precisely how the injury was sustained was not the important point from a medical perspective, although she accepted that it may indeed be relevant from a legal perspective.[95] 
  1. [203]
    It was subsequently put to Dr Pascoe in cross-examination that the expert medical opinion she had expressed was largely predicated upon the history provided by Mr Starling.  She agreed with that proposition,[96] going on to note that Mr Starling forgot to bring his diary to the consultation which necessitated his recollection of particular dates being supplemented by her review of the “extensive notes in the briefs and other reports”.[97] 
  1. [204]
    When queried about the nature of the “second project” that Mr Starling had worked on for Mr Hermann, Dr Pascoe believed it was some kind of construction, possibly a house. The parties appear to me to have proceeded under the assumption that the “second project” refers to the Guara Grove jobsite, which is a sensible conclusion given the timeframe and the incident alleged to have occurred there.
  1. [205]
    Dr Pascoe confirmed that Mr Starling’s “increasing back issues” during that second project resulted in him regularly taking time off, was a continuation of the 2012 injury and was occurring before any purported 2016 event.[98]  Dr Pascoe confirmed that there was a further, distinct 2016 event, though she could not be certain whether that date was supplied from Mr Starling or supplemented from the other documents supplied to her.
  1. [206]
    The Regulator’s counsel referred Dr Pascoe to the section of her report that stated Mr Starling’s history was substantiated by notes from the GP.  When asked to precisely identify the GP notes that substantiated Mr Starling’s history, Dr Pascoe sweepingly referred to a variety of “GP Notes” in 2012 and 2017, which “reported a concern that Mr Starling had – had ongoing back pain”, as well as the report by Dr Gamboa.
  1. [207]
    It was put to Dr Pascoe that there was no reference in any GP records to any incident occurring on 13 June 2016, to which she replied that she was unsure and would have to review the GP notes taken specifically around that time. 
  1. [208]
    Further, it was put to Dr Pascoe that Mr Starling had not seen any chiropractor after 13 June 2016.  Dr Pascoe accepted that may well be true but noted that she “was not focused on being very specific about these dates. I was giving a gestalt of this injury” or “an overview of the injury”. 
  1. [209]
    The Regulator’s counsel posited that Dr Gamboa’s report made no mention of a 2016 event or injury.  In reply, Dr Pascoe offered:[99]

I read the report in relation to the injury sustained, not the specific dates on which injuries may or may not have occurred. Therefore in Dr Gamboa’s report, I didn’t focus on the date, I focused on the opinion of the underlying medical condition that Mr Starling had, and the mechanism of injury, not specific dates.

  1. [210]
    In re-examination, Mr Starling’s counsel asked Dr Pascoe whether Mr Starling’s consultation with Dr Jin on 2 August 2016 constituted a relevant medical record.[100]  Dr Pascoe agreed that it did.  However, as I have earlier found, Dr Jin’s consultation notes for that day make no specific mention of a June 2016 incident whatsoever.  In addition, Dr Jin’s notes of the subsequent consultations with Mr Starling made no specific mention of a June 2016 injury. 

Consideration of Dr Pascoe’s evidence

  1. [211]
    Whether Mr Starling sought medical attention for an incident in June 2016 that he says caused him significant pain at a time proximate to it allegedly occurring is fundamentally a question of fact for my determination. 
  1. [212]
    For Dr Pascoe’s purposes, a patient presenting some time after the incident did not pose a particular problem.  Certainly, she was content to assess and review Mr Starling some three years after the alleged accident, and author a report about it. 
  1. [213]
    But for the purposes of determining, from a legal perspective, whether the incident actually occurred, proximate medical attendances are a critical factual consideration.
  1. [214]
    The central issue in this appeal is whether Mr Starling sustained an injury in June 2016.
  1. [215]
    Dr Pascoe testified that she was not focused on a particular date.  Dr Pascoe’s gestalt of the injury in March 2019, nearly three years after it was alleged to have occurred, involved reviewing reports already written about Mr Starling which were much closer in time to the purported event. 
  1. [216]
    Dr Pascoe was asked to indicate where in Mr Starling’s medical records (GP notes, chiropractic records, Dr Gamboa’s report or otherwise) there was any mention of a particular injury sustained in June 2016.  She could not point to any such record. 
  1. [217]
    On the evidence before me, no such record exists.  The first medical report which describes a June 2016 injury in any detail is that authored by Dr Pascoe herself - nearly three years after the alleged event occurred and based upon a history provided by Mr Starling after he became aware that his WorkCover claim for the 2012 injury was out of time.

What distinctions can be drawn between the expert medical evidence in this matter?

  1. [218]
    Dr Pascoe’s report differs from that of both Dr Gamboa and Dr Din.  The discrepancy between those reports is largely predicated upon the differing histories provided by Mr Starling.  The key differences are that Dr Pascoe examined Mr Starling nearly 3 years after the alleged injury in June 2016, and that Mr Starling told her about a June 2016 injury but did not disclose this to either Dr Gamboa or Dr Din.
  1. [219]
    Given my earlier finding that I do not believe a June 2016 event occurred as described by Mr Starling, it follows that any medical report predicated upon that assertion will be intrinsically flawed.  That is not the fault of the medical expert.  As Dr Pascoe herself said, the opinions expressed in an expert medical report are predicated upon the accuracy of the history provided.
  1. [220]
    In referring to the development of an injury, albeit a psychological one, President Hall in Misevski v Q-COMP provided that (emphasis added):[101]

I recognise that there were other allegations raised by the appellant at first instance, and that those allegations were found to be without substance.  One consequence of course is that those transactions cannot have contributed to the development of her psychological condition. A transaction which did not occur cannot have contributed to the development of anything.

  1. [221]
    Both parties to this matter referred to the Saeed v Workers’ Compensation Regulator,[102] wherein Commissioner Neate provided a valuable summary of the law regarding an ‘injury’ and distinguishing between expert opinions in this jurisdiction.  In particular, he explained:[103]

Resolving the conflict of expert opinions: Where, as in this case, there is a conflict of opinions between expert medical witnesses the following propositions drawn from judicial authorities apply:

  1. (a)
    the tribunal of fact can be assisted by expert medical opinion evidence, but must weigh and determine the probabilities as to the cause of an ailment or injury having regard to the whole of the evidence;[104]
  1. (b)
    the tribunal's duty is to find ultimate facts and, so far as it is reasonably possible to do so, to look not merely at the expertise of the expert witness, but to examine the substance of the opinion expressed and (where experts differ) to apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted;[105]
  1. (c)
    only when medical science denies that there is a connection between, for example, certain events and a person's death can a judge not act as if there were a connection; but if medical science is prepared to say that it is a possible view, then the judge after examining the lay evidence can decide that it is probable;[106]
  1. (d)
    the finding could be described as one based on the credibility of expert witnesses, having regard to such things as whether the witnesses display signs of partisanship in the witness box or lack of objectivity, and whether they make proper concessions to the viewpoint of the other side;[107]
  1. (e)
    distinctions may be drawn on the basis of demeanour (a limited ground where experts are under consideration); qualifications, impressiveness and cogency of reasoning and exposition of reasoning; preparation for, and application to, the problem in hand; and the extent to which the witness had a correct grasp of basic, objective facts relevant to the problem;[108] and
  1. (f)
    if it is open to the tribunal to prefer one body of evidence to the other on grounds fairly discerned, the tribunal should express its reasoned preference.[109]
  1. [222]
    In applying those propositions in the present case, it is also necessary to remember that these proceedings are conducted as a hearing de novo and Mr Starling bears the onus of proof on the balance of probabilities.[110]
  1. [223]
    Mr Starling’s counsel also relied upon Blackwood v Mana,[111] where his honour Martin J provided that (emphasis added, citations removed):

It is an uncontestable requirement that, for an expert opinion to be of any value, the facts upon which it is based must be proved by admissible evidence. It is not a requirement, though, that the facts which are proved must correspond with complete precision to the proposition on which the opinion is based.[112]

  1. [224]
    In this matter also, the inconsistency between the facts as I have found them and the history relied upon by Dr Pascoe was not “trifling”.  Dr Pascoe’s report relied upon a workplace event occurring which I have found did not occur.  The inconsistency is far beyond whether Mr Starling was “transporting” or initiating the movement of the bricks.  That is more than a mere imprecision.
  1. [225]
    Martin J found that, as a result of such an inconsistency, the expert’s evidence in that case was to be rejected.  So too here, I reject Dr Pascoe’s evidence on the basis that it is predicated upon the occurrence of a June 2016 event which in fact did not occur.
  1. [226]
    I prefer the evidence of Drs Din and Gamboa.  Not only did they assess Mr Starling much closer in time to the alleged 2016 injury occurring, but their reports are based on histories that do not contain the latter day contrivance of a June 2016 injury supplied by Mr Starling to Dr Pascoe.  Each of those reports confirm a 2012 lower back injury, and each provides that the pain from that injury continued into 2016.  Given that this appeal relates to the occurrence of a 2016 injury, and not the injury in 2012, I do not find it necessary to further delve into those reports, beyond my previous analysis.

What weight should be placed on medical records in this matter?

  1. [227]
    Mr Starling’s counsel submits that the use of, and weight attached to, the contents of medical records can vary from case to case.[113]  I agree with that proposition.  Findings of fact rely on the consideration of a range of factors, and in one instance a particular factor may have more or less probative value than in another instance. 
  1. [228]
    His counsel relies upon Rook v Crofts & Anor [2018] QDC 184,[114] and Alborough v Workers’ Compensation Regulator [2018] QIRC 110,[115] to support that assertion.
  1. [229]
    In Rook, his Honour McGill DCJ did not make adverse findings about the injured party in that case failing to make complaints to his GP over a period.  In that case, the GP engaged in “conservative management”, namely recommending physiotherapy, painkillers or massage to the plaintiff.  His Honour goes on to note that GP notes can be inadequate, and that the documents referred to are not a comprehensive record of the plaintiff’s physical state.
  1. [230]
    That situation can be distinguished from the current one in two important respects. 
  1. [231]
    First, Mr Starling not only attended upon a GP, but also upon several specialists and indeed upon his solicitors, and on none of those occasions was the particular event raised.  I accept that the purpose of those various consultations was not specifically for a June 2016 injury. However, that simply does not explain the complete absence of any notes by his doctors or solicitors to that effect.  The reports and notes of professionals, who are adept and experienced in forensically interviewing clients and uncovering issues which the interviewee may not have initially realised are of import, are critical evidence in many matters.
  1. [232]
    Second, Dr Jin testified that if such a comment were made, he would certainly have recorded it.  Dr Din also specifically provided that he would have recognised the significance of such report and been alive to any workplace injury issue.
  1. [233]
    In Alborough, citing Stark v Toll North Pty Ltd,[116] Linnane VP found that contemporaneous medical notes made by professionals with no interest in the outcome of that workers’ compensation matter were more reliable than the recollection of that Appellant as to those attendances.[117]
  1. [234]
    In this instance, I prefer the approach of Linnane VP.  The numerous, detailed medical reports, apart from that of Dr Pascoe, make no substantive note whatsoever of a June 2016 workplace injury. 
  1. [235]
    While Mr Hermann’s testimony corroborated some general aspects of Mr Starling’s case, it does not increase the likelihood of it being true given my findings as to the credibility of his testimony.  Mr Hermann’s overall poor recollection of Mr Starling’s time working at Guara Grove, that he used a brick buggy and had a sore back does not sufficiently attest to the particular June 2016 event as described by Mr Starling. 

Findings

  1. [236]
    My key findings of fact are summarised as follows:
  1. In 2012, Mr Hermann told Mr Starling that he did not pay worker’s compensation.  Mr Starling believed him.  That conversation explained why Mr Starling did not lodge a WorkCover claim at that time. 
  1. Mr Hermann submitted a false annual wages declaration statement to WorkCover for the 2011/2012 financial year and falsely advised WorkCover staff that he was not employing anyone in the period surrounding Mr Starling’s 2012 injury.
  1. However, I do not accept that 2012 conversation with Mr Hermann would have prevented Mr Starling from telling others, including his doctors and (later) his solicitors, if an injury or event had occurred in June 2016.  Mr Starling believed he could not receive compensation for the 2012 injury, yet he still retold it to his doctors and solicitors in expansive detail and on numerous occasions after that 2012 conversation.
  1. Mr Starling did not seek medical attention for a June 2016 injury to his lower back at any time proximate to that alleged injury occurring.  His attendance upon Dr Jin in August of 2016, some 7 weeks later, was primarily for his Bell’s Palsy.  In that consultation, Mr Starling did not describe any specific June 2016 workplace injury though may have discussed his back issues continuing from the 2012 injury.  He did not mention a June 2016 injury at any other subsequent GP consultations in August, November or December 2016.
  1. Mr Starling did not tell any doctor about a specific June 2016 injury until Dr Pascoe, nearly three years later in 2019.
  1. Mr Starling did not tell either his mother Mrs Starling nor his (then) partner Ms Jeffrey about having sustained a June 2016 injury at any time closely proximate to said injury allegedly occurring.
  1. The injury on or about 13 June 2016, as described by Mr Starling, did not occur.  I accept that around that time he was working for Mr Hermann as a brickie’s labourer, which involved the use of the brick buggy.  I find that he took time off work around that time as a result of his lower back pain, which was a continuation of his 2012 injury.

Conclusion

  1. [237]
    Returning to the issues in dispute, the central questions are:
  1. Did Mr Starling suffer an aggravation of his existing lower back injury on or about 13 June 2016 arising out of, or in the course of, his employment? 
  1. If so, was his employment a significant contributing factor to that aggravation?
  1. Has Mr Starling provided proof of the injury and its cause, together with proof of the nature, extent, and duration of incapacity resulting from the injury?
  1. [238]
    In terms used by Mr Starling’s counsel in submissions:

The key issue remains: was there a June 2016 event causing an aggravation of a back injury? Mr Starling submits there was.

  1. [239]
    Given my findings above, I answer that question in the negative.  In particular, I conclude:
  1. That Mr Starling did not suffer an injury, aggravation or otherwise, to his lower back arising out of or in the course of his employment on or about 13 June 2016. 
  1. It follows that his employment could not therefore have been a significant contributing factor.
  1. That Mr Starling has not provided adequate proof of the injury and its cause, as required by reg 105.
  1. [240]
    The appeal must therefore fail.  I order accordingly.

Orders

1.      The appeal is dismissed.

2.  I will hear the parties as to costs.

Footnotes

[1] Appellant Submissions filed 12 November 2019, [3]; Respondent Submissions filed 28 November 2019, [2].

[2] T1.33-34.

[3] Exhibit 6.

[4] Respondent Submissions filed 28 November 2019, [1].

[5] Kavanagh v Commonwealth (1960) 103 CLR 547, 558 – 559. 

[6] Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 32(4)

[7] Workers’ Compensation and Rehabilitation Regulation 2014 (Qld), reg 105.

[8] Church v Workers’ Compensation Regulator [2015] ICQ 031, [27]; State of Queensland (Queensland Health) v Q-COMP and Coyne (2003) 172 QGIG 1447.

[9] Ribeiro v Workers’ Compensation Regulator [2019] QIRC 203, [101], citing Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262, [136]. 

[10] Appellant Further Amended Statement of Facts and Contentions, [40] – [46].

[11] Also described elsewhere in the parties’ submissions as a “brick buggy”.

[12] T1.11.34-40.

[13] Respondent Submissions filed 28 November 2019, [4].

[14] Exhibit 3.

[15] T1.12; T1.36-38.

[16] The terms “strap of bricks” and “stack of bricks” were used interchangeably by the parties.

[17] T1.37.

[18] T1.37-38.

[19] T1.38.

[20] T1.36.

[21] T1.39.

[22] T1.39.

[23] Exhibit 8.

[24] T2.5.

[25] Exhibit 4.

[26] T2.5.

[27] T2.4-5.

[28] T2.6.

[29] Appellant Submissions filed 12 November 2019, [31]-[32].

[30] Exhibit 11.

[31] Exhibit 10.

[32] Exhibit 14.

[33] T1.43.

[34] T1.81.

[35] Ibid.

[36] T1.83.

[37] Ibid.

[38] Ibid.

[39] T1.43.

[40] Appellant Submissions filed 12 November 2019, [39].

[41] Total permanent disability.

[42] Appellant Submissions filed 12 November 2019, [39].

[43] T1.42.

[44] Appellant Submissions filed 12 November 2019, [53]-[54].

[45] Appellant Submissions filed 12 November 2019, [41].

[46] Exhibit 12.

[47] Exhibit 15.

[48] Exhibit 13.

[49] Exhibits 15 and 16.

[50] Appellant Submissions filed 12 November 2019, [44]-[46]; Respondent Submissions filed 28 November 2019, [28].

[51] T1.45; T1.75.

[52] Appellant Submissions filed 12 November 2019, [49].

[53] T1.48.

[54] Appellant Submissions filed 12 November 2019, [49].

[55] Exhibit 7.

[56] T.30-31.

[57] Appellant Submissions filed 12 November 2019, [4]-[12], [36].

[58] Exhibit 34.

[59] T2.44.

[60] T2.24.

[61] T2.24.

[62] T2.19.

[63] T.34-35.

[64] Inderjit Singh v Minister for Immigration and Multicultural Affairs [1998] FCA 1366; Wentworth v Rogers (No 10) (1987) 8 NSWLR 398, 401.

[65] T1.110-111.

[66] Living Australia Pty Ltd v Rans Consulting Group Pty Ltd [2019] SASC 86.

[67] R v Koani [2017] 1 Qd R 273, [48].

[68] R v Boland [1974] VR 849, 875. See also R v Matthews (1988) 102 A Crim R 269.

[69] R v Koani [2017] 1 Qd R 273, [48]; Wentworth v Rogers (No 10) (1987) 8 NSWLR 398, 401.

[70] The Nominal Defendant v Clements (1960) 104 CLR 476, 494, cited in Eaton v The Nominal Defendant [1995] QCA 435, 9-10.

[71] T1.49-50.

[72] T1.50.36-40.

[73] T1.51-52.

[74] T1.56.15-25.

[75] T1.113.

[76] T1.117.

[77] Exhibit 34.

[78] T1.40.

[79] T1.39.

[80] Exhibits 19 and 20.

[81] Jones v Dunkel (1959) 101 CLR 298.

[82] J D Heydon AC, Cross on Evidence, 10th edn, 2014, LexisNexis, Sydney at [1215].

[83] Jones v Dunkel (1959) 101 CLR 298, 320-321.

[84] Power v Torres Strait Island Regional Council [2011] ICQ 7, cited in Guymer v Workers’ Compensation Regulator [2018] ICQ 009.

[85] Joseph Farrell AND Q-COMP (WC/2011/234) Decision, [51]-[53]; see also White v State of Queensland (Central Queensland Hospital and Health Service) [2017] QIRC 041.

[86] RHG Mortgage Ltd v Ianni [2015] NSWCA 56, cited in White v State of Queensland (Central Queensland Hospital and Health Service) [2017] QIRC 041, [74].

[87] RHG Mortgage Ltd v Ianni [2015] NSWCA 56, [76]. See also Jones v Dunkel [1959] 101 CLR 298, 320-321.

[88] Exhibit 18.

[89] T1.73-74.

[90] Exhibit 18, page 5.

[91] Exhibit 18, page 11.

[92] Exhibit 18, page 10-11.

[93] T1.90-91.

[94] T1.99-100.

[95] 1.100.15-17.

[96] T1.97.

[97] Ibid.

[98] T1.98.

[99] T1.103.10-16.

[100] T1.106-107.

[101] Misevski v Q-COMP C/2009/29, [30].

[102] Saeed v Workers’ Compensation Regulator [2015] QIRC 28.

[103] Ibid [102], [103].

[104] Ramsay v Watson (1961) 108 CLR 642, 645 (Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ); see also Adelaide Stevedoring Company Ltd v Forst (1940) 64 CLR 538, 563-4 (Rich ACJ); Chattin v WorkCover Queensland (1999) 161 QGIG 531, 532-3 (Williams P), quoting Obstoj v Van de Loos (Unreported, Supreme Court of Queensland, Connolly J, 16 April 1987).

[105] Holtman v Sampson [1985] 2 Qd R 472, 474 (DM Campbell, Macrossan and Thomas JJ).

[106] Commissioner of Police v David Rea [2008] NSWCA 199, [8] (Handley AJA, with whom Allsop P and Johnson J agreed) quoting EMI (Australia) Limited v Bes (1970) 44 WCR 114, 119 (Herron CJ); Chattin v WorkCover Queensland (1999) 161 QGIG 531, 532 (Williams P) quoting Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190, 199-200 (Mahoney JA).

[107] Holtman v Sampson [1985] 2 Qd R 472, 474 (DM Campbell, Macrossan and Thomas JJ) quoting Joyce v Yeomans [1981] 1 WLR 549, [1981] 2 All ER 21, 27 (Brandon LJ).

[108] Monroe Australia Pty Ltd  v Campbell (1995) 65 SASR 16, 27 (Bollen J) quoting Sotiroulis v Kosac (1978) 80 LSJS 112 (Wells J).

[109] Ibid.

[110] Rossmuller v Q-COMP (C/2009/36) - decision http://www.qirc.qld.gov.au, [2]; State of Queensland (Queensland Health) v QComp and Beverley Coyne (2003) 172 QGIG 1447; Qantas Airways Limited v QComp (2006) 181 QGIG 301.

[111] Blackwood v Mana [2014] ICQ 027.

[112] Blackwood v Mana [2014] ICQ 027, [13], citing Ramsay v Watson (1961) 108 CLR 642 and Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844.

[113] Appellant submissions in reply filed 4 December 2019, [6].

[114] Rook v Crofts & Anor [2018] QDC 184, [49], [54].

[115] Alborough v Workers’ Compensation Regulator [2018] QIRC 110.

[116] Stark v Toll North Pty Ltd [2015] QDC 156.

[117] Alborough v Workers’ Compensation Regulator [2018] QIRC 110, [77].

Close

Editorial Notes

  • Published Case Name:

    Starling v Workers' Compensation Regulator

  • Shortened Case Name:

    Starling v Workers' Compensation Regulator

  • MNC:

    [2020] QIRC 39

  • Court:

    QIRC

  • Judge(s):

    McLennan

  • Date:

    11 Mar 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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