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  • Unreported Judgment

Ball v Workers' Compensation Regulator

 

[2020] QIRC 58

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Ball, Jennifer Carol v Workers' Compensation Regulator QIRC [2020] 058

PARTIES: 

 

Ball, Jennifer Carol

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2018/98

PROCEEDING:

Appeal against decision

DELIVERED ON:

17 April 2020

HEARING DATES:

20 May 2019

21 May 2019

13 August 2019

5 September 2019 (Appellant's submissions)

30 September 2019 (Respondent's submissions)

14 October 2019 (Appellant's submissions in reply)

MEMBER:

HEARD AT:

Knight IC

Caloundra

ORDER:

  1. The appeal is dismissed;
  2. The decision of the Respondent dated 17 April 2018 is affirmed; and
  3. The Appellant is to pay the Respondent's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION – appeal against a decision of the Workers' Compensation Regulator – where appellant has a pre-existing condition of Carpel Tunnel Syndrome – where appellant experiences pain over a period of time while undertaking repetitive tasks – whether pain and aggravation arose out of or in the course of employment – whether employment was the significant contributing factor to aggravation – appeal dismissed. 

LEGISLATION:

CASES:

Workers' Compensation and Rehabilitation  Act 2003 (Qld) s 32

Blackwood v Civeo [2016] ICQ 001

Carman v Q-COMP (2007) 186 QGIG 512

Croning v Workers' Compensation Board (1997) 156 QGIG 100

JBS Australia Pty Ltd v Q-Comp [2013] ICQ 13

Linortner v Q-Comp [2013] QIRC 91

Newberry v Suncorp Metway Insurance Ltd 1 Qd R 519

Taylor v Workers' Compensation Regulator [2017] QIRC 006

APPEARANCES:

Mr G J Barr of Counsel instructed by Maurice Blackburn Lawyers for the Appellant

Mr B I McMillian of Counsel directly instructed by the Respondent

Reasons for Decision

  1. [1]
    Jennifer Ball, a production operator in a Nestlé Australia Ltd (Nestlé) factory, based in Gympie, was working on a Rovema machine handling packets of 400-gram coffee on 12 October 2017, when she experienced numbness, tingling and burning sensations in both hands.
  2. [2]
    Mrs Ball subsequently lodged a Workers' Compensation claim for an injury described as Carpel Tunnel Syndrome (CTS). The claim was rejected. On review, the Regulator confirmed WorkCover's decision.
  1. [3]
    Mrs Ball has lodged an Appeal against the decision. She argues her employment with Nestlé aggravated her pre-existing CTS, in circumstances where she performed tasks that involved repetitive and, at times, forceful movements with her hands, while packing product into boxes and undertaking associated duties.
  1. [4]
    The primary issue for determination in this appeal therefore, is whether Mrs Ball sustained an "injury" within the meaning of that term in s 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act). At the relevant time, s 32 provided:

 32  Meaning of injury

 (1)  An injury is personal injury arising out of, or in the course of, employment if-

  (a) for an injury other than a psychiatric of psychological disorder -  the employment is a major significant contributing factor to the injury; or

 

 

 (3)  Injury includes the following–

 

  (b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation–

   (i)  a personal injury other than a psychiatric or psychological disorder;

   (ii)  a disease;

  1. (iii)
     a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation.
  1. [5]
    In considering whether Mrs Ball has an injury which falls within the meaning of s 32 of the Act, Mrs Ball must firstly prove she was an employee. Secondly, she needs to demonstrate that the aggravation of her CTS arose out of, or in the course of her employment. Finally, Mrs Ball must prove to the Commission that her employment is a significant contributing factor in the aggravation of her bilateral CTS.
  1. [6]
    The parties agree Mrs Ball was a worker within the meaning of the Act. Likewise, it is accepted that Mrs Ball sustained a personal injury to both her wrists, namely bilateral CTS.
  1. [7]
    The Regulator does not accept however that Mrs Ball's injury, or any aggravation of that injury, arose out of, or in the context of her employment, in circumstances where she had previously been diagnosed with CTS in or around 2002 and where it is argued Mrs Ball has experienced ongoing symptoms since that time.
  1. [8]
    In the event the Commission determines Mrs Ball's CTS was an aggravation, the Regulator denies Mrs Ball's employment was a significant contributing factor to the injury, submitting her employment at Nestlé was merely "the setting in which the aggravation occurred or the background to its occurrence".[1]
  1. [9]
    Therefore, the remaining issues the Commission must consider are:
  1. (a)
    Is Mrs Ball's evidence reliable?
  2. (b)
    Did Mrs Ball suffer an aggravation of her bilateral CTS?
  3. (c)
    If so, did the aggravation arise out of, or in the course of her employment with Nestlé?
  4. (d)
    If yes, was Mrs Ball's employment a significant contributing factor to the injury?

Key Witnesses

Is Mrs Ball's evidence reliable?

  1. [10]
    One of the key issues for consideration in this matter is whether Mrs Ball's symptoms in recent years relate significantly to her work and the nature of the duties she undertook; or whether her CTS symptoms has progressed over time, predominantly due to the natural history of the pre-existing condition and other factors.
  1. [11]
    Expert medical opinions to one side, the witness most relevant to the issues I am required to determine is Mrs Ball.
  1. [12]
    Mrs Ball provided the Commission with an account of the timing and nature of the onset of her symptoms and pain. She also gave evidence about the duties she undertook in the lead up to the incident mentioned in paragraph [1] on 12 October 2017.
  1. [13]
    Counsel for the Regulator, Mr McMillan, argues Mrs Ball is not a reliable witness, highlighting her failure to initially disclose a previous diagnosis of bilateral CTS to her treating General Practitioner, Dr Black and later, her specialist Orthopaedic Surgeon, Dr Ho when she first obtained a Workers' Compensation Certificate for her CTS.
  1. [14]
    Mr McMillan also highlighted what he considered to be Mrs Ball's 'demonstrated dishonesty' in signing statements she knew to be false or inaccurate, in relation to many of the factual issues which are now relevant to the determination of this appeal, while initially pursuing her claim.
  1. [15]
    Counsel for Mrs Ball argued she was a genuine and reliable witness, highlighting the admissions or concessions she made during the proceedings and submitting Mrs Ball did her best to provide the Commission with an accurate account of what happened during her employment with Nestlé.
  1. [16]
    It is also argued she was an impressive, though not sophisticated witness consistent with what one might expect of a person her age, qualifications and experience.
     
  2. [17]
    Mrs Ball's representatives also point to occasions where prior to receiving advice about her claim, she made certain disclosures about symptoms and pain associated with her hands, which demonstrated an open candour during discussions about her medical history.
  1. [18]
    It is contended that any failures in alleged non-disclosure by Mrs Ball in a statutory declaration she signed in early 2018 after lodging her claim for compensation, were the result of an oversight in failing to more thoroughly read the document, and a lack of understanding of its content.
  1. [19]
    Mrs Ball's representatives have also highlighted her casual status within her workplace over the period she says her symptoms worsened and the understandable concerns she may have held in relation to being more open about her pain and symptoms, given the risks of not receiving ongoing work.
  1. [20]
    Having reviewed the evidence before the Commission, it is clear Mrs Ball did not initially disclose a prior 2002 diagnosis of bilateral CTS to her treating GP, Dr Black or her specialist, Dr Ho.
  1. [21]
    It is also the case that in October 2017, Mrs Ball told a Nestlé appointed physiotherapist that she had been managing her CTS symptoms for eighteen years. She later failed to disclose her prior diagnosis of CTS to a WorkCover representative, some weeks later.
  1. [22]
    Mrs Ball also signed a statutory declaration in the pursuit of her claim which contains, in my view, several inaccuracies, including statements where she confirms she had not previously experienced pain or symptoms in her wrists, and where she attests that she had not previously sought out medical treatment for any symptoms she may have been experiencing in her wrists.
  1. [23]
    The evidence before the Commission confirms Mrs Ball first sought medical advice after experiencing pins and needles and other symptoms in her hands in 2002, when she was working at the Buderim Ginger Factory. At that time, she met with a specialist who undertook further testing. She was eventually diagnosed with moderately severe bilateral CTS.
  1. [24]
    Separately, in mid-2015 there is a further reference in Mrs Ball's medical records to investigations for CTS. During cross-examination, Mrs Ball acknowledged she had made some inquiries with her treating specialist as to whether he specialised in CTS surgery.[2]
  1. [25]
    The general thrust of Mrs Ball's explanations for not disclosing the information to her treating specialists was that many years had passed since her interaction with her (then) treating General Practitioner, Dr Dalton and neurologist, Dr Jayasinghe.
  1. [26]
    Mrs Ball explained she was unable to recall receiving a formal diagnosis of CTS from either doctor during this period. Nor could she recall going back to see Dr Jayasinghe for any follow-up treatment or discussions after undertaking nerve conduction tests, despite the existence of a report he prepared confirming a CTS diagnosis.
  1. [27]
    Although I am prepared to accept it is likely Mrs Ball did not return to see Dr Jayasinghe, it seems unlikely that she was not aware of the CTS diagnosis following his examination and testing.
  1. [28]
    I have arrived at this conclusion after reviewing Dr Jayasinghe's report of 16 November 2002, the medical records of Mrs Ball for the relevant period and a pre-employment medical declaration completed by Mrs Ball for Nestlé, less than three years later, in which she confirmed she suffered from CTS, albeit "not all the time".
  1. [29]
    Mrs Ball's explanation for the inaccuracies in a separate statutory declaration she signed in March 2018, in which she maintained she had not previously experienced symptoms in her wrists or sought medical treatment for her hands, was that she did not intentionally set out to mislead anyone. Further, that she had not properly read the statement before signing it.
  1. [30]
    During cross examination Mrs Ball struggled to provide a credible explanation  as to why she did not think to disclose her previous experiences of wrist pain and symptoms to a WorkCover representative, despite mentioning CTS and the management of her condition over the past 18 years to a physiotherapist some weeks earlier.
  1. [31]
    Having regard to all these events, I accept there have been times where Mrs Ball has been less than frank or transparent about her CTS diagnosis, symptoms and pain while working at Nestlé and on different occasions during the pursuit of her Workers' Compensation claim.
  1. [32]
    Although I can appreciate that a loss in shifts and therefore income may have been a motivating factor behind her lack of transparency, it follows that I now have some concerns about the reliability of Mrs Ball's evidence.
  2. [33]
    As such, I have approached Mrs Ball's evidence with some caution, particularly in so far as it relates to the timing, onset, and severity of her CTS symptoms from 2002 onwards.
  1. [34]
    I note that during the proceedings the Commission was provided with a summary of work tasks undertaken by Mrs Ball while working at Nestlé.[3] The description of the work tasks is important, because a significant component of Mrs Ball's case is that her CTS condition has been aggravated due to high repetition associated with the performance of certain tasks she was required to undertake.
  1. [35]
    A number of the sorting and packing tasks listed within the task summary contained calculations of the frequency with which she would be required to pick up packets, squeeze them or undertake other repetitive or forceful tasks every minute, hour or shift.   
  1. [36]
    During the proceedings, Mrs Ball acknowledged the task list had essentially been prepared by another person. Separately, she told the Commission some of the estimates in the list had been determined by initially 'guessing' the number of packs being picked up, squeezed or lifted within a certain time period.
  1. [37]
    Ms Vogler, a production manager at Nestlé Gympie factory, also gave evidence about the physical tasks performed by Production Operators on different filling and packing machines in the factory.
  1. [38]
    Although there appears to be a reasonable degree of consistency between Mrs Ball and Ms Vogler regarding the sequence of the task being undertaken, there are some differences in their respective accounts as to the extent of repetition or force involved, the duration of the shifts, the  extent to which employees were rotated between different tasks and machines, and the frequency or regularity with which Mrs Ball was involved in some of the more repetitive or difficult tasks rather than general floor service and cleaning. 
  1. [39]
    I found Ms Vogler to be a straightforward, credible witness who was prepared to make appropriate concessions while she was giving her evidence. I accept her evidence where it contrasts with Mrs Ball's evidence.

Did Mrs Ball suffer an aggravation of her bilateral CTS and did the aggravation arise out of or in the course of employment with Nestlé?

  1. [40]
    On 12 October 2017, Mrs Ball was working on a Rovema machine when she experienced pain and tingling in her hands to such an extent that she was unable to perform her duties. A supervisor was called. Mrs Ball took a brief break before resuming other duties elsewhere in the factory.
  1. [41]
    On the day of the incident a "SHE Incident/Hazard Notification" report was completed by Mrs Ball and records:

WHAT HAPPENED? (Describe what was being done and what were/are the consequences)

Hands started to get numb and had burning sensations. Really painful while working on ROVI.

...

CAUSES: (List your perceived cause of incident/hazard)[4]

  1. [42]
    Certainly, there appears to be no question that Mrs Ball experienced a sensation of numbing, burning and pain in her hands whilst performing her duties on the Rovema machine on 12 October 2017.
  1. [43]
    In a pre-employment declaration given to Nestlé, Mrs Ball disclosed a history of CTS but noted the symptoms were not present all the time. Her evidence to the Commission was that her symptoms had become progressively worse in the two years leading up to the October 2017 incident, but were not disclosed to supervisors until the 12 October 2017 incident.[5]
  1. [44]
    Under cross-examination, Mrs Ball acknowledged that since her diagnosis in 2002, she has experienced flare ups in her symptoms of CTS, including pain, numbness and burning. It is clear to me that these symptoms commenced during her employment with Buderim Ginger and continued while working at Nestlé. She also acknowledged she experienced flare ups of her CTS symptoms, in later years, even when she was not working.[6]
  1. [45]
    As a casual worker, she submitted that she feared she would lose her employment should she disclose the pain she experienced.[7] Mrs Ball said that despite the "very significant symptoms" she was experiencing, she completed her shift on 12 October 2017 because if she did not work, she would not be paid.[8]

Dr Black

  1. [46]
    Mrs Ball's treating GP, Dr Black, examined her after the incident on 12 October 2017. He prepared a letter for her supervisor, Mr Turner, where he advised she was fit to return to work but should avoid working on the Rovema, Klockner and Stick Pack machines until her CTS was able to be resolved.[9]
  1. [47]
    Dr Black provided two handwritten reports in response to questions from WorkCover, which were provided to the Commission.
  1. [48]
    In a response to a question as to whether Mrs Ball's injury was an aggravation of a pre-existing condition, he noted "ongoing use of hands would aggravate a pre-existing problem over a period of time'.
  1. [49]
    In his evidence to the Commission, Dr Black noted CTS generally worsens over time without treatment and it was likely Mrs Ball's job had aggravated her CTS in circumstances where she was undertaking the repetitive tasks that she had described to him. 
  1. [50]
    During cross-examination, Dr Black acknowledged he was a General Practitioner with no specialist training. He conceded his opinions were based on the account or history provided by Mrs Ball. In that respect, it seems Mrs Ball did not disclose a prior diagnosis of bilateral CTS during their initial discussions.

Dr Ho

  1. [51]
    Dr Ho is an experienced orthopaedic surgeon with more than thirty years' experience. He estimated the number of operations he performed on patients with CTS to be in the vicinity of 200 per annum. He considered he would examine more patients with CTS than an occupational physician. During cross-examination, he agreed that his expertise lay in the assessment of the degree of any injury that a patient such as Mrs Ball may have sustained, and the surgical treatment of the injury once diagnosed.
  1. [52]
    He provided two reports in respect of Mrs Ball's condition. He too, was not initially advised she had previously been diagnosed with CTS in 2002.
  1. [53]
    Dr Ho explained to the Commission that CTS symptoms come and go. He noted that they can lie dormant for a period before recurring, and that once a diagnosis is made, it does not mean that a patient will have continuous disturbing symptoms.
  1. [54]
    Dr Ho considered it was possible but not probable that the condition would progress with time irrespective of any external triggers. Further, that it was possible but not probable that the condition would become worse in the course of a variety of activities, even though those activities have not played a causative role.
  1. [55]
    He did not agree that the progression of Mrs Ball's CTS since 2002 was more likely to be a natural evolution of the condition, without any impact by external risk factors. He opined that if Mrs Ball's work did not require repetitive work then she was less likely to have developed CTS to the extent that she required surgical intervention.
  1. [56]
    In support of his opinion, Dr Ho relied on a paper prepared by Silverstein BA which was published in the American Journal of Industrial Medicine in 1987. The article concluded that high repetitiveness of tasks appeared to be a greater risk factor than high force in the onset of CTS, noting the nature of Mrs Ball's work fell into a group of food processing and packing occupations that appeared to promote CTS.[10]
  1. [57]
    In cross examination, Dr Ho was asked:

MR MCMILLAN: ...do you agree with Dr Lingwood that carpal tunnel syndrome is likely

to progress with time, irrespective of any external triggers?

DR HO:  I'm not strongly agreeing or strongly disagreeing, we don't, as I have mentioned in my report, we don't seem to have a good clinical studies to tell us what the natural history of carpal tunnel syndrome is. We just … sporadically, a different core section of the disease, but not to – we don't have any studies to follow a patient longitudinally like, to see each one of them to monitor their progress over a long period of time. We don't seem to have that study to tell us, for certain, what's going to happen in time. I mean, some doctors would have some opinion, due to their own experience, but that's about it.[11]

  1. [58]
    Having reviewed the summary of work tasks provided to the Commission by Mrs Ball, Dr Ho agreed that there weren't any tasks being undertaken that led to Mrs Ball being exposed to high force in her hands. Likewise, he did not consider she had been exposed to tasks that involved high repetition and high force.
  1. [59]
    Dr Ho was of the opinion that the Klockner machine that she occasionally worked on could have exposed Mrs Ball to an environment of awkward posture and high repetition. Ms Vogler's evidence was the Klockner machine only operated once a month between 2012 and mid-2017.

Dr Lingwood

  1. [60]
    Dr Lingwood, a Consultant Occupational and Environmental Physician, was requested by the Regulator to prepare a report in respect of Mrs Ball's injury. He did not physically consult with Mrs Ball in the preparation of two reports he prepared in the lead up to the Appeal.
  1. [61]
    In his report, Dr Lingwood confirmed the purpose of his involvement was not to confirm or clarify Mrs Ball's diagnosis in circumstances where there was no question Mrs Ball has been diagnosed with bilateral CTS. Instead, Dr Lingwood was asked to provide his opinion around the known and accepted non-occupational and occupational causative factors for CTS and/or the aggravation of CTS, having regard to Mrs Ball’s occupation. 
  1. [62]
    Dr Lingwood noted that CTS "commonly presents in the absence of … external triggering factors" and "is likely to progress with time, irrespective of any external triggers".[12] He expressed the view that "CTS could become symptomatic in the course of a variety of activities, even though those activities have not played a causative role".[13]
  1. [63]
    Dr Lingwood considered Mrs Ball's worsening symptoms to be a "variation of symptoms – of the underlying condition".[14]
  1. [64]
    In his report dated 2 July 2019, Dr Lingwood noted:

…I am of the opinion that the progression of the disease, which has occurred since its initial diagnosis in 2002 can be explained on the basis of its natural history alone. I am not of the opinion that any additional external risk factors are required to explain the progression of the condition that has occurred.[15]

  1. [65]
    In the same report, Dr Lingwood acknowledges that occupational risk factors can co-exist with constitutional risk factors and/or the natural progression of the condition.  
  2. [66]
    In an earlier report prepared by Dr Lingwood dated 9 November 2018, he noted:  

…research does not support the notion that non-specific "repetitive use" of the upper extremities in general results in the condition. A task such as consistent typing or computer use for example, while being a repetitive task has no widespread support as being a causative or aggravating factor for carpel tunnel syndrome.[16]

  1. [67]
    In support of his views, Dr Lingwood relied on the 2014 AMA Guides to the Evaluation of Disease and Injury Causation. He noted the types of external exposure risk factors which are generally accepted to be associated with CTS, include work which is highly forceful and work with a combination of risk factors such as:

...high force and high repetition or high force and in awkward postures (especially with frequent flexion and extension movement at the wrist).[17]

  1. [68]
    Other external factors that were identified by Dr Lingwood as contributing to CTS included the frequent use of vibrating tools and work undertaken in cold environments (such as freezers).
  1. [69]
    In response to questions around the history or work tasks undertaken by Mrs Ball, including at Buderim Ginger where she sorted ginger for several years before accepting a role at Nestlé, Dr Lingwood noted:

The presence of symptoms prior, again, it is consistent with the expected natural history of a person with underlying carpel tunnel syndrome…we would expect individuals to have symptoms intermittently and potentially even of a varying severity just as part of the underlying natural history of the condition there.

With respect to the types of exposures you've just talked to me about…if there was a lot of application of a significant force with a pincer grip of pieces of ginger over an extended period of time, that potentially may be of some relevance as also. I would say exactly the same thing with regard to causation though in that it's very likely that the work or the workload component would have been very small compared to the fact that there was this underlying diagnosis of carpel tunnel in the first place.[18]

  1. [70]
    Mrs Ball denied that the activities she undertook outside of work involved significant repetition or used vibrating machinery,[19] but acknowledged her work at Buderim Ginger Factor had involved working in cold environments.
  1. [71]
    After taking some further time to consider the summary of tasks provided to the Commission, along with the evidence provided by Mrs Ball and Ms Vogler as to how the tasks were undertaken, Dr Lingwood noted that if it was accepted that Mrs Ball's role included tasks, among other things, such as the frequent and sustained use of a pincer grip over many years then this could have plausibly played some role in the progression of her symptoms.
  1. [72]
    In relation to the notion of repetitiveness, Dr Lingwood said that he would usually mean something that is happening at least twice per minute. Dr Lingwood regarded highly forceful work would involve at least a few kilograms being lifted regularly.
  1. [73]
    In response to questioning as to whether he considered Mrs Ball had suffered an aggravation of her CTS, Dr Lingwood, in his updated report of 2 July 2019, maintained the opinion:

…Ms Ball's current presentation of carpel tunnel syndrome could be entirely explained by the natural history of the condition which has been present since around 2002. In the absence of confirmed exposures…her employment is judged unlikely to have been a significant contributing factor.[20]

  1. [74]
    During cross-examination, Dr Lingwood noted that if it was found that the description in the summary of tasks was written accurately, then he would accept that those types of tasks may be associated with some degree of progression. However, he confirmed:

… any role that those physical exposures would have played, in my opinion would have been minor compared to the fact that there was a pre-existing and underlying diagnosis of carpel tunnel syndrome.[21]

Conclusions - Aggravation of CTS / arising out of or in the course of employment

  1. [75]
    I accept that Mrs Ball experienced a flare up of her CTS symptoms in the workplace in October 2017 and potentially on various other occasions during the course of her employment with Nestlé.
  1. [76]
    Mrs Ball's representatives maintain that while she had tolerated CTS symptoms in the past, there was an increase in her pain over a period of two years while undertaking repetitive and sometimes forceful work until on 12 October 2017 her hands finally failed, requiring surgical intervention.
  1. [77]
    The difficulty I have with this submission is that there is evidence before the Commission that indicates the nature of the tasks performed by Mrs Ball, although certainly repetitive, did not require the requisite degree of force identified by Dr Lingwood as being necessary to be strongly associated with the aggravation of CTS.
  1. [78]
    In circumstances where Dr Lingwood is an occupational physician who specialises in determining, amongst other things, occupational and non-occupational causative factors of particular injuries; and where he has relied on far more recent guidance from the AMA in arriving at his opinion, I prefer his evidence rather than Dr Ho's, in so far as it relates to determining whether the tasks being performed by Mrs Ball, contributed in any way to the aggravation of her CTS.
  1. [79]
    Notwithstanding Dr Lingwood took the time to revisit his opinion and consider more closely the tasks undertaken by Mrs Ball in his second report, his opinion was that:
  • Irrespective of occupational exposures, Mrs Ball's CTS condition gradually progressed with time;
  • Mrs Ball possesses several strong individual or constitutional risk factors for the development of CTS, including age and sex;
  • Mrs Ball's employment was not a significant contributing factor in any aggravation of her existing CTS.
  1. [80]
    Although he acknowledged occupational risk factors could co-exist with constitutional risk factors in relation to the CTS, Dr Lingwood did not consider the type of repetitive duties undertaken by Mrs Ball fell within the group of activities which are generally accepted to result in a pathological aggravation or changing of the underlying natural history of her CTS. 
  1. [81]
    The evidence before the Commission confirms Mrs Ball performed a variety of tasks as an operator within the Gympie factory. Although her diary indicates she regularly performed floor service tasks, she also undertook tasks machines including the Rovema, the Can Line Depal, Caps, Glass Line Depal, Seamer and the Trays Involvo Machine.[22]
  1. [82]
    Having regard to her diary and the evidence of Ms Vogler, I accept Mrs Ball worked an average of three to four shifts on three out of every four weeks. Sometimes the number of shifts would increase. On other weeks, Mrs Ball would not work any shifts.
  1. [83]
    Although it is readily apparent that a number of the tasks performed by Mrs Ball incorporated a high level of repetition requiring her to use her hands to pick up, pack and unpack items, I am not satisfied that other factors such as high force and awkward postures co-existed, to the extent that they contributed in a meaningful way to the worsening of her CTS.
  1. [84]
    The other difficulty I have with the argument there was an increase in Mrs Ball's pain over a period of two years while undertaking her tasks is that her evidence about the emergence, timing and nature of her symptoms either at work or outside of work is unreliable.
  1. [85]
    That is, although I accept Mrs Ball experienced a flare-up in her symptoms from time to time, including the pain, numbness and tingling she experienced on 12 October 2017, I am not convinced the symptoms in her hands re-emerged or worsened predominantly in the two years before lodging her claim for Workers' Compensation.
  1. [86]
    That is, during the course of giving her evidence, Mrs Ball acknowledged many of the symptoms were present prior to this period. She had also previously inquired about CTS surgery in 2015 and advised a physiotherapist that she had been managing her CTS symptoms for eighteen years. 
  1. [87]
    In Carman v Q-COMP,[23] Hall P said:

It must be remembered that Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181 is an often cited but ageing authority. The worker who was successful on the point of law about the content of 'aggravation' was unsuccessful on the facts. Pleming v Workers' Compensation Board of Queensland, ibid, does not decide that a worker afflicted by a degenerative back suffers an injury if the back becomes painful at work. Neither does Pleming, op. cit., establish that a worker with a degenerative back suffers an "injury" if the work is a cause of the onset or intensification of pain. Pleming, op. cit. establishes that a worker with a degenerative back will suffer an injury where the back becomes painful or more painful and the employment is a significant cause of the onset or intensification of pain.[24]

  1. [88]
    Having regard to all the materials before the Commission in conjunction with Dr Lingwood's opinion, I am satisfied that any CTS pain or flare-ups Mrs Ball experienced while working at Nestlé in the two years prior to 12 October 2017, were not an aggravation of her pre-existing bilateral CTS, but instead, a variation of the symptoms of her previously diagnosed condition and a natural progression of the syndrome.
  1. [89]
    Although I accept Mrs Ball experienced symptoms at work, it follows that the proposed aggravation could not have arisen out of, or in the course of her employment. Instead, I accept that Mrs Ball’s employment at was 'the setting in which the aggravation occurred or the background to its occurrence'.[25]

Was Mrs Ball's employment a significant contributing factor to the aggravation of her injury?

  1. [90]
    Even if I was found to be wrong in my conclusions that the aggravation of Mrs Ball's CTS did not arise out of or in the course of her employment, and instead it was determined that the nature of her tasks had contributed in some way to the CTS aggravation, I could not be persuaded her employment was a significant contributing factor to the aggravation.
  1. [91]
    For the purposes of s 32(1), where the Act speaks of employment being a significant contributing factor to the injury, significant is used in the sense of "important" or "of consequence".
  1. [92]
    In Newberry v Suncorp Metway Insurance Ltd,[26]  Keane JA, with whom de Jersey CJ and Muir J agreed, said:

The requirement of s 32 of the WCRA that the employment significantly contribute to the injury is apt to require that the exigencies of the employment must contribute in some significant way to the occurrence of the injury which the claimant asserts was caused by the breach of duty of the person (not the employer) against whom the claim is made.[27]

  1. [93]
    His Honour later observed:

The fact that an injury has been suffered arising out of employment, or in the course of employment, is not sufficient to establish that the employment has been a 'significant contributing factor to the injury'. To read s 32 of the WCRA in that way would be to read the latter words out of the section, and in my respectful opinion to accord scant respect to the evident intention of the legislature to require a more substantial connection between employment and injury than is required by the phrases 'arising out of employment' or 'in the course of employment'.

Further, there is no warrant in the language of s 32 of the WCRA for reading the words 'if the employment is a significant contributing factor to the injury' as lessening the stringency of the requirement that the injury 'arise out of the employment', as was suggested in the course of argument on the appeal. It is clear, as a matter of language, that the words 'if the employment is a significant contributing factor to the injury' are intended to be a requirement of connection between employment and injury additional to each of the requirements that the injury occur in the course of employment or arising out of employment. It cannot, in my respectful opinion, sensibly be read as lessening the stringency of the latter or increasing the stringency of the former.[28]

  1. [94]
    The term "employment" in s 32 of the Act refers to what the Mrs Ball actually did in her employment and not to the fact of being employed. More recently, in Blackwood v Civeo, Martin J wrote:

The test applied in determining whether employment was a significant contributing factor must be applied in a practical way. It is the "exigencies" of employment which must be considered and, while that will ordinarily include the contractual terms of engagement, it will generally require an analysis of the circumstances surrounding the employment.[29]

  1. [95]
    In his report dated 10 May 2019, Dr Ho confirmed:

I am of the opinion that the work at Nestlé was a significant contributing factor to Mrs Ball aggravating a pre-existing condition of bilateral carpel tunnel syndrome based on the repetitive nature of her work and frequent use of a pinch grip.[30]

  1. [96]
    Dr Lingwood considered that Mrs Ball's employment was not a significant contributing factor either in the causation of, or the pathological aggravation of her CTS.  
  2. [97]
    In his oral evidence to the Commission, Dr Lingwood noted that even in circumstances where it was found that some of the tasks performed by Mrs Ball were associated with some degree of progression, that any role that those physical exposures would have played, were minor compared to the fact that there was a pre-existing and underlying diagnosis of CTS.
  1. [98]
    In any case such as this where there is a conflict of expert evidence, the Commission must, inevitably, prefer one opinion to another in order that a decision can be rendered. As observed in Taylor v Workers' Compensation Regulator:[31]

The Commission, as 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 injury having regard to the totality of the evidence.   The Commission'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.[32]

  1. [99]
    It is submitted by representatives for Mrs Ball that I should prefer the evidence of Dr Ho over that of Dr Lingwood, particularly in circumstances where Dr Lingwood did not personally examine Mrs Ball.
  1. [100]
    In my view, this is not a case where there is a contest about the nature of the diagnosis. It is accepted Mrs Ball has CTS.
  1. [101]
    That Dr Lingwood did not personally examine Mrs Ball is of relatively limited consequence in circumstances where the Commission is interested in expert opinions about whether certain occupational or non-occupational factors may have aggravated her condition. I agree with the Regulator that in this case, it is not necessarily a pre-requisite for Dr Lingwood to examine Mrs Ball in order to provide an acceptable medical opinion.[33]
  1. [102]
    Dr Lingwood considered that the progression of Mrs Ball's symptoms were more in keeping with the natural progression of her previously diagnosed CTS rather than being related to her work as a Production Operator. 
  1. [103]
    For the reasons already set out above at paragraph [78], I prefer the evidence of Dr Lingwood. 
  1. [104]
    I am not persuaded that Mrs Ball's employment was the significant contributing factor in the aggravation of her CTS.

Conclusion

  1. [105]
    Mrs Ball bears the onus of establishing that her injury arose out of or in the course of employment and that her employment was not a significant contributing factor to her injury.
  1. [106]
    I am not satisfied Mrs Ball has established she suffered an "injury" within the meaning of s 32 of the Act.
  1. [107]
    For the reasons above, the appeal must be dismissed.

Orders

  1. [108]
    I make the following orders:
  1. The appeal is dismissed;
  2. The decision of the Respondent dated 17 April 2018 is affirmed; and
  3. The Appellant is to pay the Respondent's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.

Footnotes

[1] Croning v Workers' Compensation Board (1997) 156 QGIG 100 applied in JBS Australia Pty Ltd v Q-COMP [2013] ICQ 13, 3.

[2] T1-93-94.

[3] Exhibit 8.

[4] Exhibit 10.

[5] T1-41, 28-33.

[6] T3-43, 4-5.

[7] T1-41, 28-33.

[8] T1-91, 35-47.

[9] Exhibit 1, page 48.

[10] Exhibit 3.

[11] T1-57, 10-21.

[12] T1-55, 24-25.

[13] T1-57, 6.

[14] T3-43, 12-13.

[15] Exhibit 18.

[16] Exhibit 6.

[17] Ibid.

[18] T3-41, 34-46.

[19] T1-7, 39-45.

[20] Exhibit 19.

[21] T3-6, 39-41.

[22] Exhibit 9.

[23] Carman v Q-COMP (2007) 186 QGIG 512.

[24] Ibid.

[25] Croning v Workers' Compensation Board (1997) 156 QGIG 100, applied in JBS Australia Pty Ltd v Q-Comp [2013] ICQ 13, 3.

[26] Newberry v Suncorp Metway Insurance Ltd 1 Qd R 519.

[27] Ibid, 22.

[28] Ibid, 41-42.

[29] Blackwood v Civeo [2016] ICQ 001, [24].

[30] Exhibit 3.

[31] Taylor v Workers' Compensation Regulator [2017] QIRC 006.

[32] Ibid, 43 (citations omitted from original).

[33] Linortner v Q-Comp [2013] QIRC 91, 56.

Close

Editorial Notes

  • Published Case Name:

    Jennifer Carol Ball v Workers' Compensation Regulator

  • Shortened Case Name:

    Ball v Workers' Compensation Regulator

  • MNC:

    [2020] QIRC 58

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    17 Apr 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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