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- Unreported Judgment
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Baker v Workers' Compensation Regulator  QIRC 116
Workers' Compensation Regulator
Appeal against decision of Workers' Compensation Regulator
11 August 2020
3 - 4 March 2020
DATES OF WRITTEN
Respondent's written submissions filed 17 April 2020
Appellant's written submissions filed 1 May 2020
Respondent's written submissions in reply filed 15 May 2020
WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR - physical injury - worker employed as a plant operator - suffered tibialis anterior tenosynovitis - whether injury arose out of or in the course of employment - whether work performed as a plant operator aggravated injury and whether employment a significant contributing factor.
Workers' Compensation and Rehabilitation Act 2003, s 11 and s 32
Davidson v Blackwood  ICQ 008
Goodman Fielder v WorkCover Queensland (2004) 175 QGIG 871
Karipa v Q-COMP  QIRC 161
Qantas Airways Limited v Q-Comp and Blanch  QIC 20; 191 QGIG 115
WorkCover Queensland v BHP Workers' Compensation Unit (2002) 170 QGIG 142
Mr M. O'Sullivan instructed by Ms S Lewis and Ms L Newton of Everingham Lawyers for Mr Baker.
Mr S. Gray of Counsel directly instructed by Ms R Young for the Workers' Compensation Regulator.
Reasons for Decision
- Mr Cody Baker ("the Appellant") applied for compensation for an injury to his left ankle sustained in May 2017. His claim relates to the operation of an excavator at a jobsite in Narangba when he was employed as a plant operator with Sniffers Plant Hire ("Sniffers").
- In a decision dated 20 April 2018, the Workers' Compensation Regulator confirmed a decision by WorkCover Queensland to reject Mr Baker's application for compensation.
- In this appeal, it is necessary to consider whether Mr Baker has sustained an injury pursuant to the Workers' Compensation and Rehabilitation Act (2003) ("the WRCA"). Mr Baker bears the onus of proof and must demonstrate that he has suffered an injury as per the WCRA.
- The relevant part of the legislation is set out below:
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 or psychological disorder—the employment is a significant contributing factor to the injury; or
- (b)for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury.
- (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;
- (iii)a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation.
- There is no dispute between the parties that:
- Mr Baker was a worker within the meaning of s 11 of the WCRA; and
- Mr Baker's injury arose in the course of his employment, in that he noticed the onset of symptoms whilst performing his work duties.
- Mr Baker has a history of pre-existing injuries, namely an injury to his left foot in 2008 caused by a grader running over the foot and a left ankle injury in March 2013 when Mr Baker rolled his ankle when stepping out of a lunchroom. Both of these previous injuries required time off work.
- Whether this injury was an aggravation of a pre-existing injury or a new injury, the question to be answered in this appeal is whether Mr Baker's employment was a significant contributing factor to the personal injury suffered.
- The subject work activity was 'a significant contributing factor' to Mr Baker's injury.
- In Qantas Airways Limited v Q-Comp and Blanch Hall P in considering the meaning of 'a significant contributing factor' did not accept that 'significant' meant 'large', 'great', 'weighty' nor 'substantial', but drew comfort from the Macquarie Dictionary meaning of 'significant' as being 'important; of consequence'.
- Further, the President noted that the notion of 'contribution' required some linkage between the employment and the injury.
- In Mr Baker's case, there is significant contribution because there is the requisite linkage between the employment and the injury.
- The evidence overwhelmingly demonstrates that Mr Baker had a new condition or 'injury', namely painful tibialis anterior tenosynovitis.
- The Appellant refers to WorkCover Queensland v BHP Workers' Compensation Unit where it says matters apposite to this appeal were considered by President Hall. In that matter, a miner, having concluded his shift when to the change room on site to change out of his work clothes and in doing so experienced back pain. Consideration was given to whether the injury occurred during the course of employment and if work was a significant contributing factor.
- The Appellant submits in that appeal the decision turned on its own facts and that the Industrial Magistrate found favour with the expert opinion concluding that work was not a significant contributing factor. The President acknowledged that the appeal should not be allowed in circumstances were the decision by the Industrial Magistrate was "reasonably open" on the evidence.
- A further case the Appellant says is apposite to the present appeal is Goodman Fielder v WorkCover Queensland where President Hall dismissed an appeal by a statutory review unit. In that case, the appellant, Goodman Fielder, the employer maintained that "(a) the incident did not occur and (b) that in any event employment was not a significant contributing factor to any aggravation of the worker's degenerative condition which may have occurred".
- The President reviewed the way in the which the appeal had been conducted before the Industrial Magistrate but ultimately concluded that there was no basis upon which to allow the appeal. The President stated:
The medical evidence is such that one must accept, as has been accepted in other cases, that the degenerative spinal disease had reached the point at which it might be exacerbated and rendered symptomatic by stretching to get something out of a pantry, bending over to tie shoelaces or turning over in bed. What happened to the worker in this case might well have happened to him at his home, on a council bus or at a religious service. However, once the Industrial Magistrate accepted that the incident of 3 April 2001 did in fact occur and accepted that there was a proximity of time between the incident and the onset of a pain it was, in the absence of any evidence about a competing causal incident, inevitable that the Industrial Magistrate would conclude on the balance of probability that the worker's employment had been "a significant contributing factor to the aggravation". On the state of the evidence, any other conclusion would be speculation.
I dismiss the appeal.
- It is submitted that it is irrelevant that Mr Baker might have suffered pain from other activity. The proximity between his significant pain in the affected area and his work is clear.
- The Appellant's evidence relates his pain to work. There was no evidence that any other activity was responsible for his pain.
The Respondent's case
- At the conclusion of the Respondent's final written submissions, the Respondent summarises their case:
107. Having regard to all the medical evidence, the Commission cannot be satisfied that the work activities undertaken by Mr Baker during the isolated period in question are a significant contributing factor to his claimed injury. Putting aside the controversy about whether there was more than one step missing from the excavator, an analysis of the medical evidence shows:
- (a)tibialis anterior tenosynovitis is an underlying degenerative or inflammatory condition that is not caused by the work activities in question;
- (b)the fact that Mr Baker may have been asymptomatic prior to May 2017 does not mean that injury is sustained with the onset of symptoms. As described by, for example, Dr English, the condition is one which develops prior to the onset of symptoms;
- (c)the pain experienced by Mr Baker whilst undertaking his work activities is because of the underlying condition and not because of the work activities per se;
- (d)the unanimous view expressed by the medical practitioners (excluding Dr Sheehan who was not asked to comment) is that a significant contributing factor to the development of the condition and onset of symptoms is Mr Baker's body habitus, which cause significant pressure on his ankle, whether undertaking his work duties or any activity involving mobility;
- (e)Mr Baker's symptoms can be caused by any activity of daily living;
- (f)the evidence given by the doctors is in keeping with the evidence outlined by O'Connor VP in Johnston v Workers' Compensation Regulator;
- (g)that evidence would also enable a finding that because of his body habitus and underlying condition, Mr Baker was unsuited for the work that he was performing, a similar observation to that which was made in Harrison v Workers' Compensation Regulator.
108. The highest that might be said about any evidence supporting Mr Baker's claim, is; as was said by Martin P in Davidson v Blackwood:
 The appellant's case concentrated on Dr Curtis' evidence and the reasons for accepting it. The evidence called for the respondent was preferred by the Deputy President. That evidence, on a proper reading of the transcript and the reports which were tendered, leads to the conclusion that the appellant's case was sufficient to establish the possibility that the personal injury complained of arose in the relevant way from the 2010 fall. But, it was insufficient to demonstrate, on the balance of probabilities, that the fall was a significant contributing factor
109. Any evidence that might be favourable for Mr Baker proves no more than a possibility that there is some contribution from his employment activities. That is not sufficient to discharge the burden of proof carried by him. [citations omitted, Respondent's emphasis].
The medical evidence
- The medical evidence is addressed from paragraphs 64 to 106 of the Respondent's submissions dated 17 April 2020. An attachment to the Appellant's outline of argument filed on 1 May 2020 reproduces the Respondent's paragraphs, highlighting those sections the Appellant says are significant in this case in confirming the lay evidence of the Appellant that his condition was aggravated by the subject work activity.
- The Respondent states that whilst it is accepted that the diagnosed injury is different to the previous left ankle injuries suffered by Mr Baker, it is relevant to note that following the 2013 injury, he was left with continual pain in his left ankle. The Respondent also accepts that Mr Baker described a worsening of his pain during 2017.
- Dr Malcolm Wallace, Orthopaedic Surgeon, provided a report dated 15 November 2017 following a referral from Mr Baker's solicitors. His opinion is, in part:
Mr Baker has sustained an aggravation of the pre-existing condition in the left ankle. The original injury was in 2013 and on the date of injury he suffered an aggravation of pain in the ankle and swelling on 3 May 2017.
- On page six of the same report, Dr Wallace is asked to answer some specific questions. With regard to the nature and extent of the injuries, Dr Wallace says, 'Mr Baker suffers from chronic pain in the left ankle.'
- Dr Wallace was taken to a memorandum of a telephone conference on 5 October 2019. He agreed that his opinion expressed during this conference was that the circumstances of the incident described by Mr Baker as being causative of his injury.
- Under cross-examination, Dr Wallace was taken to his opinion which was that as a consequence of the work duties, Mr Baker had suffered an aggravation of a pre-existing condition. Dr Wallace said that after his examination, he also believed that there was further pathology due to the work injury.
- Dr Wallace said that while he did not express it in his written report, it is his opinion that Mr Baker had some evidence of tibialis anterior tendonitis which is not, in his opinion, part of the 2013 injury.
- Dr Wallace said that he would call tenosynovitis of the tibialis anterior tendon an inflammatory rather than a degenerative condition.
- With regard to the work activities Mr Baker says contributed to his condition, the following exchange took place:
All right. And with respect to the forces of getting up and down on an excavator, that normally requires you to contract your calf muscles and not your tibialis anterior?
The, yes, to get in and out of an excavator which is missing a step would require dorsiflexion of the ankle and then contraction of the calf muscles.
Yes. And so, of course, your opinion is expressed on the assumption that the step was missing, isn't it?
On that assumption, yes.
And if the Commission were to find that the step wasn't missing and that there was a step available that would change your opinion then, wouldn't it?
It may do. The – there are, I believe, that he was also working on uneven surfaces and tibialis with anterior tendinitis can be due to fast walking, running on hard or uneven surfaces or kicking. Also in sports, it's a common sports injury. You can also get it from laces or tight boots running on the tendon itself.
All right. So but you said before, fast walking or running, these are the type of activities you've described as likely to cause the condition we're talking about?
They may do, yeah.
They may do.
And so that's not a very high connection between those type of activities and the condition we're talking about?
I'm not sure how to answer that. The – there's presentation. The injury that he, that he – that he sustained is consistent with the mechanism he described.
- Dr Wallace went on to discuss some different causes of tibialis anterior tendonitis and said that it may be associated with a number of different sorts of activities, including other than what one might be expected to do in their work activities.
- Dr Wallace said that the condition could be caused by excessive walking. When asked if that would mean distances much longer than about 100 metres, Dr Wallace said that Mr Baker's body habitus would be a contributing factor.
- Dr Wallace said that it remained his view that work was a significant contributing factor to Mr Baker's condition. He also said that being overweight is more likely to precipitate such a condition than in someone who is not overweight and that weight would be a contributing factor of some significance towards the condition he has diagnosed.
- Dr Sheehan confirmed that on 5 February 2020 he reported a diagnosis of "work caused left sided tibialis anterior tendon tenosynovitis. Work precipitated aggravation of intertarsal osteoarthritis and associated generalised left ankle joint soft tissue injuries unresolved".
- Dr Sheehan was asked some questions about the reports of other doctors however could only recall seeing the reports of Dr Wallace and Dr English.
- Exhibit 4 includes a report from Dr English to Dr Girgis dated 14 June 2017. This report states that Mr Baker had reported to Dr English that “…over the last few months he's had increasing pain and swelling in his left ankle".
- I note that while this report makes reference to Mr Baker's employment as a machine operator in construction, it does not say that Mr Baker had suggested this employment was the cause of the pain he was experiencing.
- Dr English provided a report to WorkCover on 18 July 2017. In response to question two regarding the event described by the worker as having caused or aggravated the injury, Dr English wrote: 'Increasing symptoms over the last few months with no further specific event'.
- The notes of Dr English for Mr Baker's visit on 7 August 2017 state that Mr Baker was wishing to re-open his claim under the original claim from 2012. The notes show that Dr English explained to Mr Baker that it is uncertain whether the previous problem is linked to the current problem and that this would probably need to be addressed by an independent medical examiner. The notes also show that a WorkCover certification was provided with the 'uncertain' box ticked.
- A further report to WorkCover provided on 21 August 2017 shows a clinical diagnosis of tenosynovitis of the tibialis anterior tendon. In answer to WorkCover's question about what event was described by the worker as having either caused or aggravated the injury, Dr English wrote: "Mr Baker feels this is the same problem as has been present for several years since his initial work-related injury."
- When giving evidence, Dr English was asked what can cause the condition Dr English had diagnosed Mr Baker as suffering. He answered: "It's – it's usually a degenerative process in the tendon so that the tendon gradually gets more brittle with – as part of an aging process and becomes – can become inflamed".
- Dr English was asked about the history Mr Baker gave of two or three months of pain. He said "that would be very typical of a gradual degenerative process in the tendon that you get a gradual onset of pain over a period of months".
- Dr English was asked to consider the activities Mr Baker described undertaking during the two week period in May 2017 where he says he was required to walk 100-200 metres over uneven ground three or four times a day, then climbing in and out of the excavator and whether those activities are likely to be causally connected with the injury he has diagnosed. He responded:
I don't think they're likely to cause the tendonitis; that's a degenerative process occurring in the tendon, but any activity will tend to make the tendonitis sorer once it's inflamed, so that it's not causative, it's just producing more symptoms when you have to do more... So sitting down may be more comfortable; walking and climbing stairs may be more sore.
When you say 'causative', what do you mean by saying it's causative of the pain ... as opposed to activity that someone might be required to undertake?
So any – any walking, standing, stair climbing would probably produce more pain but isn't actually responsible for the underlying condition.
- This evidence was reflective of the comments made by Dr English in the written report to WorkCover dated 25 February 2020:
I would not generally regard tendonitis as an injury. It is a degenerative condition affecting the tendon, very like tennis elbow or tendonitis in the shoulder and can come on spontaneously. Repetitive walking and standing may irritate the underlying condition (ie. make it sorer) but I don't think it is likely to have caused the underlying condition.
- In that same written report, Dr English said: "I would not have thought the work duties are a significant contributor to the development of the condition".
- Mr Baker's representative asked Dr English a range of questions about the impact of Mr Baker's body habitus, agreed to be 188 centimetres in height and 130 kilograms in weight in May 2017. Dr English agreed that he would have been putting some pressure on his ankles when moving about and particularly putting quite considerable pressure on the ankles when climbing in and out of equipment.
- Dr English was asked if he accepted that climbing in and out of the excavator would cause pain in the tendon. He responded that he thought Mr Baker was likely to have more pain when walking, standing or climbing and agreed that the fact that Mr Baker was 'fairly heavy' aggravated the situation.
- When asked if Mr Baker would have difficulties when traversing uneven rocky ground, Dr English said 'any standing, walking activity may result in increasing pain.'
- In response to a question about whether overuse or repetitive strain caused this condition, Dr English said that he would disagree with the word 'caused'. He went on to say, I think it's exacerbated or made more symptomatic by increased activity, but the actual causation is a degeneration in the tendon.
- There was then a series of further questions about the condition
All right. Well, let me be clear on this. If someone has the underlying condition that you've referred to?
Repetitive strain on the ankle can bring to light the pain sooner than would otherwise be the case; do you agree with that?
And therefore, you might have someone who would have no particular difficulties with this particular tendon, but by reason of, for example, repetitive strain on the foot, it brings forward that painful condition – not causing the condition, but brings forward the fact that he suffers pain in the ankle; correct?
It's – well, it's probably likely to become symptomatic around that time anyway, but the more you do, the more symptoms you are likely to get.
Well, you see, what I'm putting to you really, is you can have a person with an underlying degenerative condition such as you described that might be in a state where it's not painful for quite some considerable period of time; do you agree with that?
It certainly would - the degeneration would precede the symptoms, yes.
That's right. And then when you have someone doing something stressful on the ankle joint, that stressful activity causes the condition to become painful?
But that – just merely the act of walking or climbing stairs would make it painful.
That's right. And then the more you do that, the more painful it gets?
And then over a period of time, what I put to you is that the effect of that activity wears off and you revert to the natural degenerative state underlying the condition; is that right?
Yes. So more activity, more symptoms; less activity, less symptoms.
- The Respondent's submissions address the evidence of Dr English regarding some of the more technical aspects of the condition. As this section of the Respondent's submissions summarising and addressing the medical evidence is also relied upon by the Appellant, it is convenient for me to directly quote from it here rather than undertake my own summary:
 Dr English said that with climbing up and climbing down, it is the lever effect of the foot putting more load on the tendons. Explaining more about the movement of the ankle, Dr English's evidence is:
- (a)In the neutral position, a person's foot is essentially at a 90-degree ankle;
- (b)Dorsiflexion is pulling the toes up towards you or your foot up towards you; and
- (c)Plantar flexion is going in the opposite direction to about 45 degrees.
 The activity of climbing would more typically be plantar flexion and "your Achilles tendon is doing most of the work".
 As to the degenerative process, Dr English said that there is a "sort of microscopic level of failure in the fibres of the tendon as they become more brittle". He agreed that with activity, you can get more micro tears on the degenerative tendon, which is where the inflammatory process occurs. The following exchange then occurred with Mr Baker's counsel:
"Now all I'm putting to you, sir, is this: that if - it's true that my client did not have pain in the left ankle affecting this tendon prior to about a week or two before 17th May and he was climbing up and down the cabin of the excavator and walking on uneven ground. That was likely to have made the micro tears in the tendon?---That doesn't fit with the history he gave me of gradual increase in pain over a couple of months.
Yes. Well, let's just put that history to one side. Let's just assume the history that was put to you by the solicitors for the respondent. If it is as put to you in the history that I've just referred to, then you're likely to get micro tears in the tendon. That's correct?---That's the pathology regardless of the timeline.
Okay. Let's just assume for a moment, if you don't mind, that Mr Baker didn't suffer pain in his tendon prior to - I'll give you some dates - so the 3rd to the 10th of May. So I'll put that a different way - until the - yes, the 3rd or the 10th May 2017. And what I'm putting to you is if in that time he's climbing up and down the excavator and walking on uneven ground, that's likely the cause to be caused by micro tears in the tendon. That's correct?---I don't understand the question in that statement.
Okay. I'm putting to you that if he's doing this activity I've just described in that period, that that activity has caused micro tears in the tendon?---I would disagree with that.
Alright. Did he have micro tears in the tendon?---I think he has an underlying tendinosis, which is a process of micro - micro tears in the tendon that becomes more symptomatic with activity. And that's likely to have been present for some months prior to when it becomes symptomatic and gradually becomes more symptomatic with time.
- Dr Donnelly is an orthopaedic surgeon and examined Mr Baker on 27 September 2017 to provide a report to WorkCover.
- Dr Donnelly's report indicates that Mr Baker told him about the previous injury in 2013 and that the pain had never gone away and was gradually getting worse. Dr Donnelly said that Mr Baker did not mention a subsequent injury to his ankle at the time of that discussion.
- The work activities Mr Baker says he was undertaking in May 2017 were outlined to Dr Donnelly and the doctor was asked to comment on whether or not there was a causal connection between the work activities and the injury he had diagnosed. Dr Donnelly's response was, "I could see no specific association between the work activities of climbing in and out of machinery or a period of 100 metres on uneven ground and a diagnosis of tibialis anterior tenosynovitis."
- Dr Donnelly was shown Exhibit 5, on which Mr Baker had indicated the parts of his ankle where he noticed the pain. Dr Donnelly said that according to his clinical notes Mr Baker had stated his pain was over the 'five, six, seven area' on the diagram. He noted that on Exhibit 5, Mr Baker had circled 'pretty much the whole of the ankle except for the peroneal tendons and the tendon Achilles.
- With regard to the activity of climbing in and out of the excavator, Dr Donnelly said that the act of climbing uses the tendon to propel the foot down and that that the main tendon used to go upstairs or up a ladder is the Achilles tendon.
- Dr Donnelly was asked about the photo Mr Baker had provided showing redness of his foot. Dr Donnelly said he would find it difficult to correlate the redness to the pain. This was because there was only a photo of one foot and so nothing to compare it to and also because tenosynovitis doesn't usually present with a large area of redness over the foot. When asked if he could say whether the redness could be connected with the tibialis anterior injury or condition, Dr Donnelly said, "Look, I cannot say for sure. I would think it would be unlikely".
- With regard to the causes of tenosynovitis, Dr Donnelly said that it can be caused by over use, repetitive strain injury or gradual wear and tear. When asked if repetitive strain injuries at work occur in people who have jobs requiring performing activities of a repetitive or forceful nature like walking up and down stairs, Dr Donnelly expressed it would depend on how often the movement occurs.
- Dr Donnelly was then asked a series of questions regarding the impact of Mr Baker's weight:
Assume that he was, in May 2017, 188 centimetres in height and he weighed 130 kilograms. Doctor, could I put it to you that a person of that height and that weight is certainly obese?---
That's – by definition, absolutely.
Well, can I put it to you, sir, that a person of that body habitus walking up and down stairs would strain the ankle joint?---
No, more than any other activity.
Well, can I put it to you that it would involve him lifting more weight and having more pressure on the ankle joint as he walked up and down stairs? Do you agree with that or not?
I would say that every one of his activities of daily living would have more force through is hips, knees, ankles and all joints.
Getting up and down from a chair, walking to and from the car, doing his shopping. All of those will carry excessive weight.
All right. Now, this fellow had to climb up into a cabin on an excavator and out of it, and I think you've been shown some photographs of a similar type of excavator; is that correct?
I think I've been shown the exact excavator but, yes, I have seen the photographs.
Can I put it to you that for him, doing that exercise, would put excessive strain on his ankle joint?
I repeat, it would put excessive strain – excess strain on all his joints and the ankle joint would be one of those.
All right. Now, sir, just assume for a moment that he associated pain when he was doing that exercise. Now, would that indicate that he is suffering micro tears in the tendon that we're concerned with?
No, look, my opinion would be that the pain can be caused by many things and micro tearing of a tendon would be one of many, many things that could cause pain.
Micro tearing of a tendon would most likely be of an ongoing chronic degenerate nature than a repetitive stress event.
- Dr Donnelly said that he couldn't say whether the tendon was degenerative, "but in many cases of tenosynovitis there is a degenerate change or wear and tear change in the tendon".He said that his diagnosis based on his examination of Mr Baker and the clinical signs and investigation he had performed was a tibialis anterior tenosynovitis.
- When asked about degeneration, Dr Donnelly's evidence was:
Okay. What I'm putting to you is that the tenosynovitis affecting this particular tendon was not a consequence of a degenerative condition. Do you agree with that?
No, I don't. No.
All right. Now if we then take up your point that it was degenerative---?
No, I'm saying it could've been degenerative. I'm not saying that there was definitely a degenerate component to it. I was saying there are multiple components that – multiple things that can give rise to tenosynovitis.
Okay. Thank you. If it's not – if the condition becomes – sorry, I'll just rephrase the question. Assume for a moment that this tendon became painful in early May 2017 – I want you just to assume that for moment?
Do you say it became painful because of a degenerative condition in the tendon?
There may have been an accelerating or a factor that flared it up, that, you know, when his weight may have contributed to that.
Well, if you assume also that in that period, that is early May 2017, that he was getting pain in that tendon at the same time that he was performing the work activities described to you, that is climbing in and out of the excavator and walking over uneven ground, distances of about 100 metres or more up to about – and I think his evidence was about 10 times a day, would you accept that that type of work activity would bring forward the symptomology?
If I make those assumptions, I would think that the type of activity could've given a very temporary aggravation of underlying symptoms.
Correct. And then the period of aggravation could be – well, it's a bit hard to be certain about things like that, isn't it?
Well, if you're – if you're walking and it's causing an aggravation and then the – then the walking stops, the aggravations would settle very quickly.
All right. Now, again – and the same applies to the – if he's finding the pain when he's getting in and out of the excavator, once you stop that climbing activity, climbing in and out, again you'd expect the aggravation to resolve over a certain period of time. Is that what you say?
You would, yes.
- Dr Donnelly's evidence was that other activities other than simply hopping in and out of the excavator or walking over uneven ground could cause the pain in Mr Baker's ankle. Dr Donnelly's evidence was:
I would think that any activity could be causally connected with the symptoms that Mr Baker was describing and I did not see that walking for 200 metres on uneven ground or climbing in and out of the excavator, for the reasons I've already gone through, would be more likely than any other activity that he undertakes on a daily basis to give rise to his symptoms.
- Dr Lingwood is an occupational medicine physician. He provided an opinion to WorkCover as part of the Medical Advisory Panel.
- Dr Lingwood was provided with details of the description of work duties Mr Baker had outlined to the Commission.
- Dr Lingwood said that he did not feel that the types of duties described by Mr Baker were consistent with the types of physical exposures which may be associated with aggravating an underlying condition of tendinopathy or tenosynovitis in the tibialis anterior tendon.
- Dr Lingwood described some of the sorts of activities which may contribute to the condition He said that while he accepts that walking on uneven ground can result in some dorsiflexion of the ankle, it's just not the magnitude of this type of existing exposure which may be associated with the condition. Further, he said that:
there's no sort of, you know, exact cut-off time between what's at risk and what's not at risk but we are talking about chronic long-term exposures, not sort of doing something, climbing in and out of a machine 10 times a day over the course of a couple of weeks. It's just not in the same order of magnitude of type of exposures we're talking about there.
- When asked about whether Mr Baker's height and weight at the time would have had a connection with the condition, Dr Lingwood said that moderately severe obesity is a very well documented and widely accepted contributing factor to tibialis anterior tendon pathology.
- Mr Baker's representative asked Dr Lingwood about when someone might experience symptoms because of the condition, Dr Lingwood's evidence was:
It depends if the condition is in a state of flare. The natural history of these tendinopathy type conditions is that they can become symptomatic intermittently and unpredictably. So it would be entirely plausible that a person could have this condition when it is not in flare and they could walk around and have no symptoms whatsoever.
On a time when the condition is being symptomatic, though, they could be walking around or doing quite normal activities and they could be aware of symptoms from it.
Okay. Now, can you tell the court why the condition would flare? What – what is the mechanism?
It often flares without any particular reason that we're aware of, so---
What I'm trying to find is what is happening within the tendon that would cause it to be painful?
So the pain when we are talking about these sort of tendinopathy type conditions – when we – when you look at these tendons pathologically, what is happening in these tendons is you are accumulating a bunch of little – very tiny, what we call micro tears, in the substance of the – of the tendon. Now, those micro tears can often sit there and remain completely asymptomatic for no – for – for – for extended periods of time. But, at times, they can sometimes cause a reaction where you can get a bit of a collection of fluid around the tendon and often that will be a situation where the individual will experience pain.
- Dr Lingwood agreed that the activity of climbing in and out of the excavator and walking on uneven ground could make a person aware of the symptoms of the condition. When asked if it was the case that the more of the activity that is done, the more likely the pain is not going to resolve Dr Lingwood said:
I think we have to distinguish between feeling pain when doing an activity and pain the sense of pain that is representative of the underlying or ongoing tissue damage. You are correct to say that if a person has the underlying condition and it is in a case where it is being symptomatic, that the more they walk around, be it at work or elsewhere, the more they will have pain at that time. Again, that doesn't mean, though, that the activity is actually changing the underlying pathology or making the underlying pathology worse. So, yes, it is correct to say that if you stop doing the activity during which you are experiencing symptoms that, yes, you will experience less pain. But, again, unless it's one of those activities that are broadly thought to be associated with contributing or causing to the condition, it's not actually going to be changing the underlying condition or worsening the underlying condition.
The lay evidence
Mr Baker's evidence
- Mr Baker's evidence was that his pain was related to his work.
- Mr Baker indicated on a diagram where he experienced the ankle pain.
- Mr Baker said that at the time he experienced the ankle pain, he was working on a Komatsu PC228 on the BMD jobsite at Narangba for the new overpass for Boundary Road.
- Mr Baker said that getting in and out of the cab was difficult and that the ground was uneven.
- With regard to getting in and out of the cab, Mr Baker said that getting up into the cab puts strain on the body. He said that there was a step missing which made it particularly hard to get in and out.
- Mr Baker marked the place where he said the missing step should be on a photograph of the machine taken by him on 29 May 2017.
- Mr Baker said that it is easier to get into the cabin if the step is there and was then asked to describe why that it is the case. Mr Baker said that in order to get up, he had to put his foot on the track frame itself as he wasn't able to get his leg up that high.
- Mr Baker's recollection was that at the time of the events being described he was 130 kilograms and 188 centimetres in height.
- Mr Baker described that he would repeat the exercise of getting in and out of the cabin a minimum of ten times a day and estimated that from the ground to the top of the track was around 80 centimetres and was under waist height but above knee height.
- He also gave evidence that he was required to walk a few hundred metres each day as a minimum, to get to the machine from his parked car and to go on breaks.
- Mr Baker said that he persevered with the difficulty of walking as a result of his ankle for approximately a week.
- He said that he phoned Sniffers Operations Manager Leia Ray and reported that he was suffering pain in his left ankle after he had seen the doctor. He also said that on the day that he left work to go to the doctor he notified the BMD supervisors and rang Ms Ray to let her know he was leaving work in case they wanted to send another operator to take over.
- Mr Baker said that he saw Dr Rupa on 9 May and received a medical certificate and that he would have sent a copy of the medical certificate to the office with the payslips.
- Mr Baker was taken through some time sheets for the month of May and asked to indicate his understanding of what was written on a range of dates.
- Mr Baker recalled sending an application for Workers Compensation on 13 May in respect of his left ankle injury and then putting in a further application in October 2017 because the 13 May application was rejected.
- According to Mr Baker, his wife was assisting him at home through massage, application of wheat packs, rest and raising his foot on a pillow.
- On 13 May 2017. Mr Baker saw Dr Girgis who provided him with a Worker's Compensation medical certificate. Mr Baker said that he called Ms Rey and indicated that he needed a few days off. He said during the conversation with Ms Rey, it was discussed that Dr Girgis thought the pain was possibly a flare up of a pre-existing condition from May 2013 and that as Sniffers were not his employer at the time, it was not necessary to provide the certificate.
- Mr Baker said he returned to work on 29 May 2017 and that he was still having problems with the excavator and uneven ground. He said that he decided to leave around June 2017 to set up his own business.
- Mr Baker was asked more about the worksite under cross-examination. His evidence was that it was not possible to drive up to the excavator. He said that he would have to walk about 100 metres from his ute to the excavator depending on what end of the site had been flagged off to park cars.
- It was put to Mr Baker that the excavator he was operating was only missing one step and that there were three other steps on it. Mr Baker said that while the photo showed one step, the other steps were missing. He did not take a photo of the other side of the excavator.
- Mr Baker agreed that the type of excavator he was operating was called a zero swing excavator and that it was possible to park it in such a way that he could have used the step to get in and out.
- Mr Baker further agreed that photos shown to him represented a person using three points of contact to climb up into the excavator and that if there was no step available, it was possible to use the chassis to hop up. However, he maintained that where he was working on the jobsite, it was not possible to swing the excavator around to get out of it in a different way.
- When asked if when the machine wasn't in operation it would have been possible to 'park it up…to get in and out of it', Mr Baker agreed that the opportunity to do this would not be affected.
- Mr Baker agreed that he attended upon Dr Girgis on 13 May 2017 as he had pain in his left ankle. He said that he had experienced 'very small amounts' of pain on a continual basis since his previous 2013 injury. Under re-examination, Mr Baker said "very, very often, it would – it would ache. It was – I was able to do everything that I could normally do".
- When asked about how the pain after May 2017 was different, Mr Baker said that he has had pain constantly every day and some flare ups to the point where he has had to be assisted out of the truck or machinery by other people.
- The evidence regarding whether a phone call was made to Sniffers to inform them of the injury and the workers' compensation medical certificate was unclear. However, it seems Mr Baker was of the opinion that he was opening an old workers' compensation claim and therefore there was no relevance of the medical certificate to Sniffers.
- Mr Baker agreed that after seeing Dr Girgis, he continued working at Sniffers up until the pre-planned time of finishing up to start his own business.
- Mr Baker was asked about how the excavator was transported. He said it was transported on a float and was tied down with four chains that would go through the frame. Mr Baker was asked if he ever applied the chains directly to the steps on the side of the excavator. He indicated that he would definitely not do this because the steps are designed to help you get up and out of a machine, not to transport the machine.
- Under cross-examination, Mr Baker said that he had only been involved with moving that excavator once and on that occasion it was done by float driver Mr Loy.
Mrs Baker's evidence
- Mrs Baker said that from the time of Mr Baker returning to work following his first ankle injury in 2013 through until May 2017, Mr Baker had not had any difficulty with his ankle.
- She said that he asked her for assistance with his ankle over a period of a week and was consistently complaining about it being sore.
- Mrs Baker recalled that over a period of three or four days, Mr Baker's ankle consistently got more purple and redder but that she was not present when he took the photos of it.
- She said that he has had consistent problems with the ankle every day since then.
- Mrs Baker recalled that over the week, Mr Baker's symptoms were getting worse and she told him to go and see a doctor.
- Mrs Baker related an incident on the Friday afternoon where she says Mr Baker came home from work. She said that he actually couldn't get out of the work vehicle and she had to call his dad to come and get him. She said that he was crying and in a lot of pain and she told him he had to see a doctor.
Evidence of Cameron Preston-Stanley
- Mr Preston-Stanley, a former plant operator, was shown a photo of the zero-swing excavator operated by Mr Baker.
- Mr Preston-Stanley said that entry and exit from the machine was via three points of contact: stepping down onto the track frame or the track and then using the step on the side or the track frame.
- He said that because the excavator swings 360 degrees, one can get out at all four corners, two points of the track on either side.
- Mr Preston-Stanley recalled that there was a designated parking area for machines and that if there was not room for Mr Baker to swing the machine in the area he was working, he would have been able to park it away from the bridge abutment.
- Under cross-examination, Mr Preston-Stanley said that he could not recall exactly what machines Mr Baker had worked on. He also said the worksite was large, probably a kilometre in length and that while generally the excavator would be returned to a parking area, this was not always the case.
- Mr Preston-Stanley said that Mr Baker would have been working in restricted movement areas from time to time and that it would not be uncommon for the machine to be in a tight area where it could not be turned 360 degrees. He said that it would have been possible to move the machine so that the slew radius was not restricted and the driver would have all options to get out of the excavator but he could not recall if Mr Baker had a habit of leaving the machine in situ or moving it.
- Mr Preston-Stanley agreed that Mr Baker was a 'pretty large fellow in weight' and agreed that he would have been walking on uneven surfaces where there may have been rocks on the path and that depending on where he parked his vehicle, he would have had to walk across to get to and from equipment and vehicles.
- Mr Preston-Stanley agreed that from time to time excavators may lose a step due to the nature of the work that they do. He said that when the excavators are being moved, they are not chained to the trailer by the steps because the steps are not rated to be a tie-down point.
Evidence of Mr Loy
- Mr Loy at the time of the incident was a float driver/operations assistance with Sniffers Plant Hire. He gave evidence that when he moves the excavator, he uses the steps as tie down points.
- Mr Loy recognised the excavator in a photo and stated that he chains that excavator down with the three remaining steps. Where the step is missing, Mr Loy said that hooked into a hole in the track gear rather than the step.
- Under cross-examination, Mr Loy stated that he ties down on the steps and that this has been his standard routine for well over ten years.
- Mr Baker's representative put to Mr Loy that the National Transport Commission load restraint guidelines required this type of equipment to be secured not by reference to a step but the other points on the excavator. Mr Loy responded that he was not aware of that and stated that the steps on those machines have got stickers on them stating that they are a lifting point and a chain-down point. His position did not change under cross-examination.
Evidence of Mr Orchard
- Mr Orchard is a director of Sniffers Plant Hire. He identified the excavator Mr Baker was operating at the time and agreed that a step was missing from the excavator as a result of hooking chains on it to move it when bogged on a different site.
- Mr Orchard said that Mr Baker never complained to him about the absence of steps from the excavator.
- Under cross-examination it was put to Mr Orchard that there were also steps missing on the other side of the excavator. Mr Orchard disagreed with this proposition.
Evidence of Leia Rey
- Ms Rey was the Operations Manager of Sniffers at the time of the events subject to this appeal.
- Ms Rey said that she definitely did not tell Mr Baker that he did not need to send her a medical certificate. She said that this is because if workers did not provide a medical certificate, they would not be paid sick leave.
- Ms Rey did not recall Mr Baker sending her photos or complaining about the excavator being left in a dirty state.
- Ms Rey could not recall Mr Baker telling her that he had a sore foot while working at Narangba.
Consideration of evidence and submissions
- Mr Baker's Statement of Facts and Contentions filed 26 July 2018 sets out his argument that because the excavator he was working on was damaged and the step to the cabin was missing, he was required to step up onto the track and pull himself up in to the cabin and that the top of the track was just under a metre high.
2A. It is the Appellant's case that the excavator has three missing steps. The one remaining step was useless because:
- (a)There was no handle to grab onto to assist him to climb into the cabin.
- (b)Even if he used the door frame to assist climbing onto the machine it was not possible to shuffle along the excavator tracks towards the door because the bottom of the cabin protruded over the excavator tracks.
2B. This means the Appellant was required to enter the cabin by stepping from the ground onto the tracks and then climbing into the cabin. This was made more difficult because of the height of the machine and the grip on the tracks was poor because of the dirt.
- During the hearing there was some focus on whether the excavator Mr Baker was operating was missing a step and whether it would have been possible for Mr Baker to operate the zero swing excavator to enable himself to access one of the other steps on the excavator.
- The evidence revealed that the excavator was missing one step but there were other steps present on the excavator Mr Baker could have used and the type of excavator meant these steps could have been accessed. I found the employees of Sniffers to be credible witnesses openly answering the questions asked of them. There was no attempt made to suggest that the excavator was not missing steps. I prefer the evidence of the Sniffers employees to that of Mr Baker with regard to the existence of the steps.
- The evidence was that the activity of climbing up and down from the excavator was no more likely to have caused the symptoms or pain arising from the underlying condition of tibialis anterior tenosynovitis than other normal day-to-day activities.
- While the Respondent submits that Mr Baker's claim that the steps were missing undermines his presentation as a satisfactory witness, I accept that Mr Baker was experiencing pain in the relevant window of time and his claim to be suffering pain appears to be supported by the evidence of his treating doctor and the evidence provided by his wife.
- The Respondent says at the conclusion of their submissions that "putting aside the controversy about whether there was more than one step missing from the excavator, the medical evidence shows…". In the circumstances of this case, I find that the medical evidence is very relevant in determining the significant contributing factors for the injury.
- Dr English reported that Mr Baker told him he'd been suffering pain for two or three months. It is clear that Mr Baker had been experiencing ankle pain of some description in an ongoing way prior to the period of time he was working onsite at Narangba in May 2017.
- It is the case that the symptoms occurred while Mr Baker was at work. Mr Baker and Mrs Baker's evidence was that there was an increase in the pain and discomfort he was suffering over the week leading up to his attendance on the doctor following the event where he was crying with pain and needed to be picked up at work.
- I accept that Mr Baker experienced pain in the course of employment, however the significance of the contribution made to the injury, or the aggravation thereof, by climbing in and out of an excavator or walking 100 meters on uneven ground over a two-week period cannot be discerned. In fact, when taking into consideration the long term chronic exposure raised by Dr Lingwood, a significant contributing factor would likely point to other activities raised in the medical evidence that Mr Baker undertakes on a daily basis throughout his life.
- While Dr Wallace maintained a view that work was the significant contributing factor, my impression of his evidence was that this was no more than a possibility. On balance, the medical evidence indicates the nature of Mr Baker's condition was degenerative and the symptoms more likely to have occurred in the context of day to day living over an extended period of time, as demonstrated by the following exchange:
Dr English, you were asked a question just a little while ago whether you would expect the injured area to become more painful with activity?
And what sort of activity are we talking about?
Generally, anything weightbearing, such as walking, standing, climbing stairs.
Yes. And so can you isolate what we were talking about before, this two week period of activity at work where there’s the specific walking over uneven ground for 100 to 200 metres and climbing in and out of that excavator on about 10 occasions? Is that activity alone likely to be able to explain the symptoms that Mr Baker was suffering?
No, it would be – it would be all activities, so walking up and down stairs at home, walking to and from your car, going shopping and any activity that’s weight-bearing on your foot is likely to result in increasing symptoms.
- The Respondent directed me to Karipa v Q-COMP where O'Connor DP (as he then was) wrote:
 It must be accepted by the Commission that employment significantly contributed to the occurrence of the injury. It is insufficient to establish that the employment was the setting in which the aggravation occurred or the background to its occurrence.
 The Commission must be further satisfied that it is more probable than not that there is a significant causal relationship between the work injury and the Appellant's post-accident condition.
- Each of the medical experts providing evidence to the Commission with regard to this matter where made fully aware of the duties Mr Baker was undertaking at the time of his claimed injury and that he was walking some distances over uneven ground and climbing in and out of the excavator multiple times a day. With this background knowledge, it was still the case that the majority of the medical opinion was that the nature of the degenerative condition was such that Mr Baker would have been as likely to experience a flare up undertaking the normal activities of life than the types of work activities he reported doing. It was also the case that Mr Baker's body habitus would likely exacerbate the condition he suffered.
- While I accept on Mr Baker's evidence that it is possible that the pain he experienced arising from his condition was as a result of the types of activities he was involved in the in at work, I am required to determine whether the evidence demonstrates on the balance of probabilities that work performed at the Narangba worksite in May 2017 was a significant contributing factor. Mr Baker had reported increasing pain and symptoms over a period of months (see paragraphs - above). Establishing possibility is insufficient, and I am unable to find more than a possibility that work was a significant contributing factor to his injury.
- In Qantas Airways Ltd v Simon Blackwood (Workers' Compensation Regulator), a matter dealing with an aggravation of a degenerative condition, O'Connor VP said:
 The phrase "a significant contributing factor" in s 32 of the Act requires more than a mere satisfaction that some element of contribution occurred. The appellant has, in my view, demonstrated that the contribution of the employment was not a significant contributing factor when compared to the dominant contributing factor, namely Petrovic's underlying degenerative condition.
 The evidence, in particular, the medical evidence is sufficient to establish that Petrovic's employment with Qantas was possibly a contributing factor, but it was not, in my view, on the balance of probabilities, sufficient to establish that it was a significant contributing factor.
- While the medical experts will provide evidence to the Commission regarding the factors causing the injury and the Appellant and other lay witnesses will provide evidence as to what they say was the cause of the injury, ultimately, it is the Commission's responsibility, having consideration to all of the evidence presented to determine whether the work was a significant contributing factor.
- When considering all of the evidence presented, I believe that Mr Baker already had the underlying condition described by Dr English, Dr Donnelly and Dr Lingwood in May 2017. Dr Wallace described the possibility of a further injury emerging at the time in question however there is no diagnosis for such an injury. I accept the medical evidence that Mr Baker's weight was a significant contributing factor to his underlying condition. I also prefer the evidence of Dr English, Dr Donnelly and Dr Lingwood who maintained that the nature of the activities being undertaken by Mr Baker may have given rise to an awareness of symptoms of the condition but did not cause the condition.
- I find that that while the excavator in question was missing a step, it did have three other steps available for use and I cannot understand why, if Mr Baker thought that it was climbing in and out of the excavator that was causing his pain, he would not have taken advantage of the 'swing' operation of the excavator to enable use of the steps. Mr Baker admits a difficult location would not affect the opportunity to position the cabin to allow use of an existing step prior to parking.
- I am not satisfied Mr Baker has demonstrated that employment with Sniffers Plant Hire on this worksite during May of 2017 was a significant contributing factor to Mr Baker's pain.
- The significant contributing factors to Mr Baker's pain were: his underlying injury of tibialis anterior tenosynovitis, the everyday activities of living, and the widely accepted contributing factor of being overweight.
- As such, I am unable to conclude that the requisite elements of the WCRA have been met.
- The appeal is dismissed.
- The decision of the Review Unit dated 23 April 2020 is confirmed.
- The matter of costs is reserved to be dealt with on application, if either party is minded to apply.
 Submissions of the Appellant filed 1 May 2020 ('Appellant's submissions'), para 16.
 Appellant's submissions ('Appellant's submissions'), para 10.
  QIC 20; 191 QGIG 115 (11 June 2019).
 Appellant's submissions para 11-12.
 Appellant's submissions para 13.
 Appellant's submissions, para 14.
 Appellant's submissions, para 15.
 (2002) 170 QGIG 142.
 (2004) 175 QGIG 871.
 (2004) 175 QGIG 871, 872.
 T1-38, ll 15-25.
 Submissions of the Respondent filed 17 April 2020 ('Respondent's submissions'), para 64.
 Exhibit 1a, p 6.
 T1-48 ll 23-32.
 T1-49 ll 28-33.
 T1-50 ll 1-5.
 T1-50, ll 37-38.
 T1-50, l 40 – T1-51 ll, 1-17.
 T1-55, ll 32-46 and T1-56 ll 1-4.
 T1-59, ll 33-35; Exhibit 2.
 Exhibit 4, p 21.
 Exhibit 4, p 26.
 Exhibit 4, p 28.
 Exhibit 4, page 31.
 T2-27, ll 26-28.
 T2-27, ll 30-33.
 T2-28, ll 20-45.
 Exhibit 4, p 51.
 Exhibit 4, p 51.
 Exhibit 11.
 T2-27, ll9-12.
 T2-30, ll 1-5.
 T2-30, ll 18-21.
 T2-30, ll 29-34.
 T2-30, l 36 - T2-31, l 4.
 Respondent's submissions, paras 78-80.
 T2-43, ll 1-8.
 T2-43, l 34 - T2-44 l l1-8.
 T2-45, ll 25-40.
 T2-51, ll 38-41.
 T2-52, ll 1-9.
 T2-52, ll 4-40.
 T2-55, ll 30-34.
 T2-59, ll 11-18.
 T2-59, l 20 - T2-60, l l2.
 T2-60, ll 15-25.
 T2-62, ll 15-25.
 T2-ll 63, ll 25-37.
 Exhibit 5; note: the diagram is of a right ankle, however, Mr Baker's pain was in the left ankle and it is the part of the left ankle that gave him pain that he marked on the diagram.
 T1-10, ll 1-3.
 T1-10, ll 17-24.
 Exhibit 6, photograph 5.
 T1-16, ll 29-33.
 T1-16, l l43 – T1-17, l l21.
 T1-22, ll 25-38.
 T1-17, ll 29-32.
 Exhibit 3.
 Exhibit 7.
 Exhibit 8.
 T1-23, l 18.
 T1-23, l 45.
 T1-32, ll 4-11.
 Exhibit 9.
 T1-33, ll 15-33.
 T1-34, ll 1-9.
 T1-34, ll 19-33.
 T1-36, ll 11-15.
 T1-36, ll 20-28.
 T1-38, ll 10-23.
 T1-42, ll 33-40.
 T1-42, ll 42-46.
 T1-38, ll 25-41.
 T1-40, ll 6-10.
 T1-44, ll 17-18.
 T1-44, ll 26-32.
 T1-44, ll 42-43.
 T1-45, ll 20-24.
 T1-45, ll 30-33.
 Exhibit 10.
 T1-67, ll 42-44.
 T1-69, ll 1-24.
 T1-71, ll 22-45.
 T1-72, ll 1-7.
 T1-72, ll 1-20.
 T1-72, ll 30-45.
 T2-5, T2-6.
 T2-17, ll 3-6.
 T2-17, ll 44-45.
 Exhibit 12.
 T2-20, ll 18-29.
 Respondent's submissions, para 107.
 T2-38, ll 25-37.
  QIRC 161.
 Davidson v Blackwood  ICQ 008.
  QIRC 82.
 T1-36, ll 1-38.
- Published Case Name:
Cody Baker v Workers' Compensation Regulator
- Shortened Case Name:
Baker v Workers' Compensation Regulator
 QIRC 116
11 Aug 2020