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Stapley v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 136

Stapley v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 136

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Stapley v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 136

PARTIES:

Robin John Stapley

(Appellant)

v

Simon Blackwood (Workers' Compensation Regulator)

(Respondent)

CASE NO:

WC/2014/282

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

23 July 2015

HEARING DATE:

10 - 12 February 2015 (hearing)

13 March 2015  (Respondent's submissions)

26 March 2015  (Appellant's submissions)

MEMBER:

Industrial Commissioner Knight

ORDERS :

  1. The appeal is dismissed.
  2. The decision of the Worker's Compensation Regulator of 26 August 2014 is upheld;
  3. The Appellant is to pay the Regulator's costs of and incidental to the appeal to be agreed.  In the event agreement cannot be reached between the parties with respect to costs the Respondent has the liberty to apply.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION - A SIGNIFICANT CONTRIBUTING FACTOR - where the worker sought compensation for his back injury – lifting luggage- whether injury arose out of or in the course of employment - whether employment is a significant contributing factor - where pain and symptoms can be attributed to normal degeneration – whether work just a backdrop - onus on Appellant – Appeal dismissed.

CASES:

Workers' Compensation and Rehabilitation Act 2003 s 32

MacArthur v WorkCover Queensland (2001) 167 QGIG 100, 1010

Kudryavtseva v Simon Blackwood (Workers' Compensation Regulator) and Vaccaneo [2015] QIRC 053

Newberry v Suncorp Metway Insurance [2006] QCA 48

Heald v Q-COMP (2004) 177 QGIG 769

JBS Australia Pty Ltd and Q-COMP (C/2012/35) Decision Error! Hyperlink reference not valid.

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

in Carman v Q-COMP 186 QGIG 512 [513]

McDonald v Q-COMP (2008) 188 QGIG 180

Pollock v Wellington (1996) 15 WAR 1 at 3

Kudryavtseva v Blackwood [2015] QIRC 053 [10] citing Coombes v Q-Comp (2007) 185 QGIG 680, 681

Momcilovic v R (2011) 254 CLR 1

Lackey v Workcover Queensland [2000] QIC 43

Campbell v Australian Leisure & Hospitality Group Pty Ltd & Anor [2015] ICQ 016

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

APPEARANCES:

Ms L.A. Neil instructed by Shine Lawyers for the Appellant.

Mr P.J. O'Neill directly instructed for Simon Blackwood (Workers' Compensation Regulator).

Decision

  1. [1]
    This is an appeal by Robin John Stapley ("the Appellant") pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act") against a decision by the Workers' Compensation Regulator ("the Respondent"/ "the Regulator") of 26 August 2014 in respect to a claim for a back injury said to have been sustained during the course of the Appellant's employment.
  1. [2]
    It is accepted the Appellant is a "worker" for the purposes of the Act and the Regulator agrees the Appellant suffered an injury to his lower back but contests it constitutes an injury for the purposes of the Act.

Grounds of Appeal

  1. [3]
    In the Notice of Claim for Damages, the Appellant responded to the question "Provide the full particulars of any negligence alleged against the worker's employer" as follows:
  1. By requiring the Claimant to manually lift luggage in circumstances where;
    1. He was required to lift repeatedly;
    2. The luggage was too heavy;
    3. He was required to lift above shoulder height;
    4. He was required to lift above head height;
    5. There was no stable surface to stand on to perform such lifting safely;
  2. By failing to provide the Claimant with any, or any adequate mechanical assistance;
  3. By failing to provide the Claimant with any, or any adequate manual assistance;
  4. By failing to provide the Claimant with any or any adequate training or instruction as to the safe handling and proper procedure of lifting, packing and storing the luggage;
  5. By failing to perform any or any adequate risk assessment of the tasks the Claimant was required to perform."    

Burden of Proof and Issues for Determination

  1. [4]
    Except for those matters conceded by the Respondent, the Appellant carries the burden of proof in this appeal.  For the Appellant to succeed, The commission must determine whether it is more probable than not:
  1. The Appellant sustained a personal injury;
  2. The personal injury arose out of or in the course of the Appellant's employment;
  3. The employment was a significant contributing factor to the injury.
  1. [5]
    The Respondent says that also in dispute is whether the injury (or any aggravation thereto) has occurred over a period of time from 1 April 2008 to 21 June 2013 which can be found to have arisen out of, or in the course of the Appellant's employment with the employer.
  1. [6]
    In issue as well is whether the Appellant's employment with the employer was a significant contributing factor to his alleged "over a period of time" injury or any aggravation injury.
  1. [7]
    Section 32 of the Act relevantly provides as follows:

  "32 Meaning of injury

  1. An injury is personal injury arising out of, or in the course of, employment if -
  1. for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury; or
  2. for a psychiatric or psychological disorder - the employment is the major significant contributing factor to the injury.
  1. However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.
  1. Injury includes the following -
  1. a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
  2. an aggravation of the following, if the aggravation arises out of or in the course of, employment and the employment is a significant contributing factor to the aggravation;
  1. (i)
    a personal injury other than a psychiatric or psychological disorder:
  2. (ii)
    a disease;
  3. (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. For subsection (3)(b) and (ba), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation. 
  2. Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances -
  1. reasonable management action taken in a reasonable way by the employer in connection with the workers employment;
  2. the workers expectation or perception of reasonable management action being taken against the worker;
  3. action by the Authority or an insurer in connection with the workers application for compensation."
  1. [8]
    In Kudryavtseva v Simon Blackwood (Workers' Compensation Regulator) and Vaccaneo,[1] Neate C considered the authorities in so far as they related to onus, noting:

"[10]Although the onus to be discharged is on the balance of probabilities, the Commission, in dealing with the matter, must feel an actual persuasion before the alleged facts can be found to exist. (See MacArthur v WorkCover Queensland (2001) 167 QGIG 100, 1010 (Hall P) and cases cited). "

 And later:

"[12]In a case where expert medical evidence is led, before any such expert medical evidence be of value, the facts upon which it is founded must be provided by admissible evidence (see Coombes v Q-Comp (2007) 185 QGIG 680, 681)."

  1. [9]
    In Newberry v Suncorp Metway Insurance[2] Keane JA, with whom de Jersey CJ and Muir J agreed said:

"[27] It cannot be disputed that, when s 32 of the WRC speaks of  'employment'  contributing to the worker's injury, it is referring to employment as a set of circumstances, that is to the exigencies of the employment of the worker by the employer.  The legislation is referring to 'what the worker in fact does during the course of employment'. "

  1. [10]
    As to aggravation of an injury, in Heald v Q-COMP[3], Hall P confirmed the view of Dr Turner that there are two types of compensable aggravation:

"A degenerative condition may be aggravated in the sense that it may be made worse, i.e.  after the aggravation the degenerative disorder is worse than it was before.  But there can also be an aggravation in the sense of an increase of symptoms associated with a degenerative condition which, after the cessation of the symptoms, returns to its pre-aggravation state. "

  1. [11]
    In JBS Australia Pty Ltd and Q-COMP [4] Hall P confirmed the need to establish that "employment must significantly contribute 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. "
  1. [12]
    Likewise, in Croning v Workers' Compensation Board of Queensland[5] citing Tophams Ltd v Sefton (1966) 1 All E. R. 1039, de Jersey P held that employment needs to be a "real effective cause" of the injury and not merely the setting or background in which the injury occurs.
  1. [13]
    Relevant to degenerative back injuries and the onset of pain Hall P stated in Carman v Q-COMP:[6]

"It must be remembered that Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181 is an often cited but ageing authority… Pleming v Workers' Compensation Board of Queensland, ibid, does not decide that a worker afflicted with 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 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."

  1. [14]
    The appeal to the Commission is by way of a hearing de novo.[7]

Witnesses

Mr Robin John Stapley

  1. [15]
    The Appellant, Mr Stapley, gave evidence in support of his appeal.  Mr Stapley commenced working as a Tour Director with Outback Spirit Tours on 1 April 2008.  He claims to have suffered his lower back injury over a period of time during the course of his employment with symptoms first being experienced on or around 18 August 2012.  He lodged a Notice of Claim for Damages, pursuant to s 32 and s 258 of the Act, on 19 September 2014.  In his Notice of Claim for Damages, The Appellant nominated 1 April 2008 when "the event commenced" and 4 July 2013 when the "event ceased".

Ms Isobel Rymann

  1. [16]
    Ms  Rymann is the long term partner of the Appellant who worked with the Appellant at Outback Spirit Tours up until 2013 and was with him during certain periods when he was undertaking his duties.  Ms Rymann also completed an injury incident report referred to in the proceedings.

Mr Graham Macgregor

  1. [17]
    Mr Graham Macgregor is a Physiotherapist at Cairns Innovative Physiotherapy who treated the Appellant.  He was called to give evidence by the Appellant.

Dr Alan Cook

  1. [18]
    Dr Alan Cook is an Orthopaedic Consultant who prepared a Medical Report for the Appellant on 4 July 2014.

Dr Pincus

  1. [19]
    Dr Pincus is a Consultant Orthopaedic Surgeon who prepared a Medical Report for the Regulator on 15 January 2014.

The Appellant's evidence

  1. [20]
    Mr Stapley worked as a Tour Director with Outback Tours ("the Employer") from on or around 1 April 2008.  He claims to have had an injury to his lower back over a period of time in the course of his employment and first experienced pain symptoms in 2012.  He said he had been asymptomatic prior to the events at the workplace in August 2012.
  1. [21]
    Mr Stapley worked on a seasonal basis for the employer from April through to the beginning of October each year, generally working 24 days out of a 28 day period.  The duties performed were broad and included meeting the clients, driving them, and loading and unloading their luggage from the bus each day.  He was not required to then move the luggage from the bus to the client's room.
  1. [22]
    The process undertaken to load the luggage was as follows:
  1. (a)
    Luggage would be selected, dependent upon size, to go into different type spaces within the luggage compartment.
  2. (b)
    The maximum weight in terms of individual items of luggage was 16 kilos as determined by the employer, however, weights varied with some luggage being in excess of or below.  Where that occurred, excess luggage would be placed in an oversized bag.
  3. (c)
    The luggage compartment was at the back of the bus and the opening into the area was about 90 centimeters from ground level.  The configuration of the area was not uniform.  There were clearly larger and smaller areas in which to place luggage.  Where possible he would store the heavier items on the bottom and stack lighter items on top.
  4. (d)
    Mr Stapley was required, when storing luggage, to go up one step and on to a ladder which took him to another level.  When the Appellant was at that level he had to rely upon someone else (usually his partner Ms Rymann) to hand the luggage on to him.  After the top area was filled with luggage, a step down was taken to pack the luggage into the lower area. 
  1. [23]
    There had been no difficulty associated with this process for the Appellant until August 2012.  Ms Rymann's evidence was that she had been told by Mr Stapley he had first experienced pain when performing duties at work in August 2012 and she had noticed he was limping at that time.
  1. [24]
    Mr Stapley's evidence was that at the end of the season in 2012, he was loading luggage at Moreton Station.  He said he was undertaking his usual process,

 "but then I noticed I had a pain on my hip, right hip outside, and the right-hand side of my knee, and, you know, I was a bit stiff in the back, but I thought nothing of it, kept continuing on doing the rest of our chores…….and I started limping, and the hip was getting worse and worse, more so than anywhere else, just the hip.  Knee was sore."[8] 

  1. [25]
    Ms Rymann's evidence was that in or around August 2012 she noticed Mr Stapley was limping, she asked him what had happened and he mentioned the "bloody luggage".  Mr Stapley had also complained of a sore hip and pain in his back at that time. 
  1. [26]
    Mr Stapley said he completed the tour and returned to Cairns where he later consulted Dr Adams from the Smithfield Medical Centre.  Mr Stapley recounted the event to Dr Adams and an X-Ray was ordered by him.  Mr Stapley said he was wearing his work uniform at the time, and he believed he told Dr Adams what he had been doing when he felt the pain.  
  1. [27]
    The patient records for Mr Stapley's consultation with Dr Adams on Wednesday 22 August 2012 note the following:

"Wednesday August 22 2012

Dr Tim Adams

Pain (R) hip with limp.

Diagnostic imaging requested: X-ray both hips - ? OA.

Reason for Contact:

Right Hip discomfort"

  1. [28]
    There is no record in Dr Adams' notes Mr Stapley had mentioned work duties as being the cause of his injury.  The Respondent submitted all that was recorded in Dr Adams' notes was a reference to right hip pain, but it was not mentioned in connection with Mr Stapley's handling luggage at work.
  1. [29]
    Mr Stapley consulted a Physiotherapist two or more days later and was able to undertake the Sydney tour sometime after.  The Physiotherapist's records note an onset of pain occurring some six months prior to this consultation well before the August period Mr Stapley referred to in his evidence to the Commission.
  1. [30]
    Some months later, at the end of November 2012, Mr Stapley visited the same Physiotherapist after completing a Sydney tour.  Whilst his hip pain appeared to have largely resolved itself he complained of pain in his back and leg.  The records retained by the physiotherapist for a consultation with Mr Stapley on 22 November 2012 included the notation:

"Degenerative spine - with elements of stenosis".

  1. [31]
    After experiencing further pain, in February 2013 Mr Stapley was referred to an appointment with Dr Emery, a Spinal Orthopaedic Surgeon and received cortisone injections for the pain.  The treatment was effective and he returned to work in April 2013, but was unable to complete the full season.  Mr Stapley was unsure of the exact date when he ceased work, nominating the dates of 20, 21 or 22 June 2013.
  1. [32]
    At the commencement of the new tour season in June 2013, Ms Rymann recalled Mr Stapley had complained of a sharp pain in his back which he attributed to an incident where he was storing luggage.  As a result of this exchange, Ms Rymann completed an Incident Report on behalf of Mr Stapley.  Ms Rymann said the only other time she recalled Mr Stapley having pain in his back was around 2007 when he had a major accident.[9] 
  1. [33]
    The following Incident Report completed by Ms Rymann reflects Mr Stapley's evidence in respect of the incident in June 2013.

"Robin slipped off ladder step while twisting around lifting a suitcase to be loaded over his head.

Nature of Injury – Sharp lower back pain".

  1. [34]
    Mr Stapley recalled the location of his pain at the time of the incident as follows:

"Imagine the belt on your back, that's the area across your back.  Going across there.  Also leading down into my leg region…  Right leg, predominantly right hand side."[10] 

Mr Stapley's evidence was that it was around this time he saw Dr Emery again who advised he should not return to work and would need to undergo an operation on his back.

  1. [35]
    Mr Stapley lodged a claim for Workers Compensation around this time however the claim was rejected, as was the subsequent review of the same claim by the Workers' Compensation Regulator.  The Regulator contends the basis of the rejection of that particular claim was it was found his injury was the result of a degenerative back condition, being his spinal stenosis.  On 3 March 2014, Mr Stapley underwent surgery.
  1. [36]
    Mr Stapley provided evidence about earlier health issues he had experienced with his back.  In 2007, he had been in a vehicle accident and injured his back.  He said the pain was in a different area to where he subsequently felt discomfort in 2013.  He also hurt his wrist in the same accident but said the back pain associated with the 2007 vehicle accident eventually disappeared. 
  1. [37]
    In cross-examination, the Respondent raised with Mr Stapley various medical notes retained over a period of a decade relating to many of the ailments affecting him.  Examples included osteoarthritis; knee reconstruction; wrist problems and hip and back problems.  The emphasis in part related to prescriptions of Celebrex and Voltaren tablets taken by Mr Stapley over many years as a means of dealing with his pain.
  1. [38]
    Ms Rymann was questioned about her observations of Mr Stapley after the events of in August 2012.  She noted Mr Stapley continued to tinker around in his workshop at home and was able to perform his duties for the Sydney trip later that year, but that this changed in 2013 when he was very much limited in what he could do on their property and had slowed down in terms of his prior physical activities.

The Medical Evidence

  1. [39]
    Ms Neil, Counsel for the Appellant argued that whilst Dr Cook agreed Mr Stapley suffers from a degenerative condition of spinal stenosis, his opinion was the condition was not responsible for the symptoms Mr Stapley experienced in August 2012 and thereafter.  Rather, Dr Cook opined Mr Stapley's employment was a significant contributing factor to his injury.
  1. [40]
    In a report dated 4 July 2014, Dr Cook's "diagnosis" was as follows:

"When seen on 17.06.14, it is felt that Mr Robin John Stapley sustained the following injuries as a result of the incident that occurred in the course of his work in or about August 2012 when loading luggage into the Coach and aggravated by his continued working that includes:

  1. A generalised musculo-ligamentous injury or soft tissue injury to the lumbosacral spine and especially to the L4/5 intervertebral disc on the right side causing nerve root compression with right side sciatica.
  1. Aggravation to pre-existing degenerative changes in the lower lumbar and lumbosacral spine."[11] 
  1. [41]
    Dr Cook had provided to him medical records from Dr Emery; the Smithfield Medical Centre Cairns; Professor Whiteford and Dr Pincus amongst other documentary material submitted in the matter. 
  1. [42]
    The evidence given by Mr Macgregor, a physiotherapist, related to his consultations with Mr Stapley which first too place on 24 August 2012.  His notes in respect of these consultations were particularly detailed and thorough.  Mr Macgregor's evidence was Mr Stapley self-referred to Physiotherapy complaining of bilateral thigh pain at the back of his thighs.  He had described the pain to Mr MacGregor as intermittent and had rated his pain threshold at six out of 10.
  1. [43]
    Mr Macgregor said that when he asked Mr Stapley about the commencement of his pain, he had advised it was approximately six months ago.  Mr Macgregor said his notes reflected an 'insidious' onset of symptoms, with Mr Stapley referring to a pain which had gradually become worse with no specific injury or reason attributed to it.  He recalled Mr Stapley advising he had experienced a road traffic accident four to six years previously which had resulted in low back pain.
  1. [44]
    When considering and observing Mr Stapley in regard to his movement pattern and palpation together with a positive straight leg raise, Mr Macgregor's conclusion was the pain experienced by Mr Stapley was coming from his lumbar spine.  Primarily, taking into consideration Mr Stapley's description of his pain, Mr Macgregor's view was:

"I've still gone with likely sort of wear and tear or degenerate lumbar spine … I've written with an element of stenosis.  And what I mean by stenosis is narrowing.  So, that could be the - there's different areas of the spine that can be narrowed.  It's impossible to pick out which one but it also implies that the nerves can't slide or move as appropriate as they should."[12] 

  1. [45]
    In cross-examination, the Respondent questioned Mr Macgregor as to whether, at any stage, Mr Stapley had himself identified what he believed to be the cause of his onset of pain.  Mr Macgregor said when questioned as to the work Mr Stapley undertook, he had simply described it as involving "sitting and walking".[13]  He further stated if Mr Stapley had mentioned any work related incident, he would have recorded that in his notes.[14] 
  1. [46]
    When the question "So, your view was that the symptoms that he was presenting of, the pain that he was complaining of was secondary to a degenerative process in the lumbar spine?" was put to Mr Macgregor by Mr Stapley, he responded "Yes".[15]
  1. [47]
    Mr Macgregor advised Mr Stapley's pain symptoms appeared to come and go, intensifying at different occasions and this was consistent with nerve root irritation.  There was nothing in Mr Macgregor's notes indicating any work related matter gave rise to this occurrence. 
  1. [48]
    Dr Cook, in the course of his evidence, disagreed with the Respondent's questioning that the disc bulges found in the CT scans and the MRI undertaken by Mr Stapley were the result of a degenerative process in Mr Stapley's spine.  Dr Cook disagreed for the following reason:

"Why is because this man does have a degree of spinal canal stenosis at L4/5 level of his spine and with the stenosis there is not much spare room.  So if he had a pre-existing disc prolapse, this would have been symptomatic from the time that it developed."[16] 

  1. [49]
    The Respondent put the following question to Dr Cook:

"And your conclusion, and please correct me if I'm misquoting you or not summarising your report properly, but your conclusion that the disc prolapse was caused by an incident in August of 2012 is premised upon an acceptance by you of a history from Mr Stapley that he had no prior symptoms; is that correct?"

To which Dr Cook responded:

"It's important that he have no prior symptoms, because that, if confirmed, signifies that his pre-existing degenerative changes were completely silent or asymptomatic and that any disc prominence, as opposed to a prolapse, was not compressing the spinal cord or the exiting nerve root."[17] 

  1. [50]
    Mr O'Neill, Counsel for the Respondent asked Dr Cook if he had seen the report from Mr Macgregor citing a history given by Mr Stapley that he had experienced bilateral thigh pain some six months prior to his attendance on the 24th of August 2012. 
  1. [51]
    The Respondent asked the following question:

"Now firstly, can I ask you, that's inconsistent with the history that he provided to you?"  Dr Cook responded "Yes.  That's certainly not the history he gave me."[18]

  1. [52]
    The Respondent referred Dr Cook to the history Mr Stapley had provided to Professor Harvey Whiteford, a Psychiatrist, where he had advised he had awaken one morning with right hip pain.  He said pain had run out across his lower back and he also experienced pain in his right knee.  The Respondent asked Dr Cook "That history of waking with right hip pain one morning is not consistent with what he told you as to the mechanism of injury, is it?"  Dr Cook responded:  "Well, it certainly does differ from what he told me."[19] 
  1. [53]
    Dr Cook was of the view the damage to Mr Stapley's back was the end result of a number of aggravations as he continued to work.  The Respondent put the following question to Dr Cook: 

"But there's no evidence other than these two events of August 2012 and in June 2013 of there being other work events where he's complained of experiencing some pain or symptoms.  Is that your understanding of the history?"

Dr Cook responded:

"Well, my understanding of the history is that he had his original injury in August 2012 and that, although it seemed to settle at the time, he returned to work and that it was subsequently that this back pain increased and he developed the sciatica, which became very severe to the point he could hardly stand or walk on his right leg, and I think that was when the disc prolapse actually got very large and compressed the nerve root on that right side."[20]

To that proposition, the Respondent believed that the injury would have had to have occurred sometime over December-January 2012/13.  Dr Cook agreed with this suggestion.  Mr Stapley's evidence to the Commission is that the work season did not commence until April each year and that he had concluded the extra Sydney tour in or around November 2012.

  1. [54]
    The Respondent referred to Dr Pincus' report where his view was Mr Stapley suffered from a degenerative spinal stenosis.  Doctor Cook said this condition took many years to advance, taking anywhere from five to 15 years to develop.  When considering the CT scan and the MRI, Dr Cook agreed Mr Stapley had a degenerative change, but he thought he those changes were "pretty good for a man who was some 61, or thereabouts, years of age at the time."[21] 
  1. [55]
    The Respondent queried whether Dr Cook was underplaying the significance of Mr Stapley's degenerative changes.  To this Dr Cook responded:  "I try to, when I examine X-rays and scans, correlate the degree of degeneration to a person's age.  So in a 60 year old, early or even early moderate degenerative changes were in someone who - who was only perhaps in their early 30s, then that would be very significant."[22] 
  1. [56]
    Dr Cook, when considering the CT scan and MRI said the degenerative changes were evident, but he held to the view it was the incident at work and his subsequent work that produced the initial injury to the annulus of the disc and the subsequent prolapse.[23] 
  1. [57]
    Dr Pincus was called to give evidence by the Respondent.  After examining Mr Stapley, Dr Pincus prepared a report dated 15 January 2014.  The Respondent put to Dr Pincus the information which Mr Stapley had provided to Mr Macgregor on 24 August 2012, that is a history of bilateral thigh pain which had existed for some six months prior to August 2012.  Dr Pincus's evidence was that history was different to the history Mr Stapley had provided to him.  Dr Pincus' notes showed Mr Stapley reported he had developed lower back pain in November 2012 and he had not been aware of any pain prior to that time.
  1. [58]
    Dr Pincus said the radiological signs from the X-rays taken of Mr Stapley showed evidence of advanced age-related and significant stenosis at the two lower lumbar levels.[24] 
  1. [59]
    Dr Pincus was asked whether he held the view Mr Stapley's employment duties were a significant contributing factor to his injury as opposed to the ongoing degenerative process in his spine.  Doctor Pincus said the narrowing takes 15 to 20 years to occur and patients only present with symptoms when it gets very severe.  Doctor Pincus indicated degenerative stenosis progressively gets narrower as the arthritis progresses and the spine settles and then eventually the symptoms settle.  Doctor Pincus added as Mr Stapley was maturing, the symptoms eventually arose and:

"I don't think there's any contribution with his work other than the fact that he is not a young man and he had a job that did involve lifting and things, so I don't think there's any question that he would have developed some back pain at the time when he was doing his work and - but he's got back pain because he's got an arthritic spine, but that's totally separate to his degenerative stenosis, which is not in any way caused by - by his work, in my opinion."[25] 

  1. [60]
    In cross-examination Dr Pincus was asked to explain the difference between the stenosis to which reference had been made and the osteoarthritis which had been mentioned by him.  Dr Pincus said the two were different conditions:

"but the stenosis is caused by a combination of factors, including osteoarthritis of the facet joints and degeneration and – and the natural progression of the - of the narrowing of vertebral discs, causing – causing bulging posteriorly."[26] 

Dr Pincus noted both were degenerative conditions, but the two of them contributed to the stenosis in the spine.  Dr Pincus' view was Mr Stapley's degenerative condition was not caused by work and was an age-related constitutional condition.[27] 

  1. [61]
    The Regulator advised Dr Pincus that in August 2012, Mr Stapley had one consultation with his General Practitioner where he was referred for X-rays and had no other treatment provided.  One consultation was also attended with a Physiotherapist on 24 August 2012, but no sick leave had been taken by Mr Stapley and he continued to undertake three more tours for the next three months where he was lifting luggage every day.  With that history, Dr Pincus was requested to provide an opinion as to the likelihood, at Mr Stapley's age, that if he had suffered an acute disc bulge or disc prolapse in August 2012, whether he would have been able to work for the next three months lifting luggage every day, to which Dr Pincus' response was "zero".[28] 
  1. [62]
    Doctor Pincus also accepted that if Mr Stapley had advised there was the existence of a bilateral thigh pain at the back of the thigh some six months prior to August 2012 that would be consistent with Mr Stapley already having a disc bulge which was having an impact on a nerve.  Doctor Pincus was of the opinion the disc bulge is pre-existing, most likely long-standing and is part of the pathophysiology of Mr Stapley's spinal stenosis.[29] 

Submissions

  1. [63]
    It is accepted by the Respondent Mr Stapley has suffered an injury, but not one that falls within the definition of "injury" for the purposes of the Act.
  1. [64]
    The issue to be determined in this matter is whether the injury arose out of or in the course of employment and whether or not employment is a significant contributing factor.  With regard to the incident of August 2012, the Appellant contends there is credible evidence to demonstrate he suffered the initial symptoms of his injury at that time.  This evidence is:
  1. (a)
    Mr Stapley's own evidence that he hurt his back when configuring and lifting luggage, weighing up to 16 kg, into the luggage compartment of the tour bus he was driving;
  2. (b)
    The symptoms at that time were of pain in his right hip, right leg into his right knee and right thigh and some stiffness in his lower back.  He had not experienced this type of pain before.
  1. [65]
    Ms Rymann, while not observing the incident on that date said Mr Stapley had told her he experienced the onset of these symptoms while working for the employer at that time.  Within the ambit of this discussion, she recalled him referring to the luggage as the "bloody luggage" or "stupid luggage".  She stated Mr Stapley had reported pain in his hip and back.  Her evidence was she helped him with the luggage after that incident.
  1. [66]
    Concerning the claim of an over time injury (1 April 2008 to 21 June 2013), the Regulator says this has not been made out on the evidence.  Mr Stapley had no complaint of any pain or symptoms prior to August 2012.  There is also no medical evidence suggesting Mr Stapley's work duties during this period were linked to his lower back injury.
  1. [67]
    The Respondent said it may have been argued Mr Stapley suffered an over time claim for the period of August 2012 to 21 June 2013, but submits this has also not been made out by the evidence.

The Appellant's earlier workers' compensation claims

  1. [68]
    Mr Stapley had lodged a claim for workers' compensation as a consequence of the injury of 21 June 2013 to which reference has been made in this decision.  The incident related to Mr Stapley's claim he had slipped off a ladder while twisting around when lifting luggage above his head height.  His claim of "Sharp lower back pain" was rejected by WorkCover and by the Regulator's Review unit on 12 December 2013.  Mr Stapley has not appealed that decision.
  1. [69]
    The Respondent stated in final submissions this is significant "because it effectively means that this injury and event have not been accepted as being a work related injury and therefore there is no right to seek damages in respect of this injury or incident." 
  1. [70]
    In the Notice of Claim, Mr Stapley makes no reference to any pain or symptoms occurring before 18 August 2012.  The Respondent contends what was equally significant, was Mr Stapley, in the claim, made no mention of any pain or symptoms experienced beyond that date.
  1. [71]
    In its submissions to the Commission, the Regulator further questions whether "because of this difficulty, Mr Stapley lodged a Notice of Claim for Damages for the period from 1 April 2008 (at the commencement of his employment with the employer) to 4 July 2013 (when his employment effectively ceased)". 
  1. [72]
    The initial application relating to the over time injury had initially related to back pain injury and a psychological injury.  This was rejected by WorkCover on 14 February 2014 but since that time, the psychological injury element of the claim was abandoned by Mr Stapley.  It is the remainder of that claim, i.e. the back injury, which is the subject of this appeal.

Submissions on Medical Evidence

  1. [73]
    The Respondent contends Mr Stapley has a "naturally occurring constitutional degenerative change process which affects his lower spine".  This was diagnosed by Dr Pincus as "degenerative spinal stenosis" for which there was no significant connection to Mr Stapley's work.
  1. [74]
    The Respondent also submitted the injury has not been caused by an aggravation of a pre-existing injury, on the basis that Mr Stapley's condition was already symptomatic in or around February 2012 which falls within the timeframe Mr Stapley reported to his physiotherapist he initially felt pain in his thigh area.
  1. [75]
    Medical records from the Smithfield Medical Centre confirm Mr Stapley had regularly been prescribed Celebrex since 10 June 2002 and also diagnosed or treated for oesteo-arthritis in various parts of his body during this period.  For example:

"Right shoulder – mild degenerative change in AC joint (2002)

Osteoarthritis (2004)

Osteoarthritis (2006)

Left Arthroscopy of knee

Osteoarthritis (2007)

X-ray of hand/wrist and lumbar spine.  With regard to the lumbar spine the following was recorded:  "There is osteophytic spurring in the lumbar spine with a crush fracture at L1 with about 20% reduction in vertebral body height.  This may be on the basis of osteoarthritis.  (2007)

Right Wrist – "There is marked degenerative change at the radiocarpal joint with widening of the scaphpolunate distance suggesting a ligamentous injury.  There is no definite acute fracture.  (2007)

X-ray of right wrist.  "… OA change at the radioscaphoid articulation and diastasis of the scapholunate joint.  … OA change also noted at the carpomentatarsal joint of the thumb …" (2009)

X-ray both hips.  "No significant OA change.  No other bone or joint abnormality seen at the hips…."  (2012)

CT lumbosacral spine:  "There is slight forward displacement of L4 upon L5.  Alignment elsewhere is normal.  There is an old crush fracture of L1 with approximately 30% reduction in height compared to T2". (2013)

The anterior osteopphytic fusion between T12 and L1 reflecting the long- standing nature of these findings.  Early marginal osteophytes are noted at most levels throughout the lumbar spine and also the lower thoracic spine".

 …

L4-L5 disc.  There is a large broad-based laterally located disc bulge at this level filling the lower half of the right neural foramen.  No centrally located disc bulge or prolapse is seen.  There is significant degenerative change in the interlaminar joints at this level associated with ligamentum flavum hypertrophy.  Problems were also associated with Mr Stapley's feet around that time."  (2013)

  1. [76]
    Further commentary in a report produced by Queensland X-ray to Dr Emery stated:

"At L4/5 there is a large annular disc bulge, degenerative change in the facets and prominent ligament combining to produce a marked canal stenosis and compromise of the enclosed nerve roots."

  1. [77]
    Osteoarthritis was mentioned as the cause of a number of consultations with various Doctors at the Smithfield Medical Centre over the course of a decade (i.e. during 2004, 2005, 2006, 2007, 2009, 2010, 2012 and 2013).  Celebrax capsules were prescribed in the majority of Mr Stapley's medical consultations at the Smithfield Medical Centre over the same period.
  1. [78]
    The Respondent said in the course of evidence it had been indicated Mr Stapley's hips were clear of osteoarthritis in August 2012, however the X-ray report of August 2012 shows "no significant OA change".  This report does not say there is no osteoarthritis.
  1. [79]
    Dr Adams, on 22 August 2012, noted Mr Stapley's symptoms as "Pain, right hip with limp".  There was no record of lower back pain associated with work recorded in those notes.  However, Mr Stapley told the Commission he advised Dr Adams he had hurt himself at work.
  1. [80]
    On January 2013, the medical consultation with a GP noted "Feet pain/LBP.  Stiff in arm.  Better with mobility".  Again there had been no mention of pain associated with the work being performed by Mr Stapley.  After that date, in consultations with doctors (later in January 2013, 14 February 2013 and 1 March 2013) there remained no mention of any work related causes for Mr Stapley's back pain.
  1. [81]
    The Appellant contends the records of the Physiotherapist, Mr Macgregor as of 24 August 2013 refer to him having suffered a "recent incident".  The symptoms of which were pain on the outside of the thigh, beginning just below the hip.  The Appellant says this is consistent with the Appellant's reports of pain in his right hip.  There was a reference to lower back pain with a "recent incident" noted by the Physiotherapist.
  1. [82]
    The Appellant says that notwithstanding the Physiotherapist formed the opinion Mr Stapley's condition was due to a "degenerate lumbar spine", he was unable to determine the cause of this degeneration.
  1. [83]
    Further, that Mr Stapley's pain persisted after his consultation with the Physiotherapist but he had continued working with ongoing problems associated with his back until early 2013, when his General Practitioner referred him to a specialist.  Cortisone injections followed and the Appellant recorded that whilst he continued to experience pain in his back, his condition was improving.  Mr Stapley continued working until 21 June 2013 when the incident on that date caused him to sustain a lower back injury.
  1. [84]
    While the Respondent relied upon an entry in the Physiotherapist's notes referring to pre-existing symptoms in his lumbar spine early in 2012, Mr Stapley denied advising Mr Macgregor he had an earlier onset of pain.  Mr Macgregor was unable to recall the nature of the "recent incident" referenced in his notes, but the Appellant says this could only refer to the work incident which had happened a few days earlier.
  1. [85]
    Additionally, the Appellant said he had spoken to an Orthopaedic Surgeon who was on his bus trip at the time of his accident in August 2012 and he may have told the Physiotherapist this, but it may have been misconstrued by the Physiotherapist as Mr Stapley having consulted with an Orthopaedic Surgeon.  Additionally, the Appellant said the reference by the Physiotherapist to an "insidious onset" of pain was clearly an error on his part as it was inconsistent with Mr Macgregor's own recording of a "recent incident".
  1. [86]
    While the Respondent had listed Mr Stapley's various medical conditions over a period of time, the Appellant argued there was no reference anywhere to Mr Stapley suffering symptoms in his lumbar spine since the motor vehicle accident which occurred in 2007.  The Appellant said in that accident he had suffered severe bruising to his back, but he recovered quickly.  What was recorded was a crush fracture to the spine at L1, which was different to the current injury, and he was unaware of this until he undertook X-rays following the event of 2012.  His pain at this time was placed much higher in his back and not near to his current injury at L4/5. 
  1. [87]
    The Appellant said there was a plausible reason for Mr Stapley taking Celebrex as this was for his wrist, knee and shoulder pain.  The Appellant did not understand the Respondent's considerable references to medical notes concerning the Appellant's "osteoarthritis" as the Respondent provided no other explanation or information to assist in determining how this related to the current claim.
  1. [88]
    Dr Cook saw Mr Stapley on 4 July 2014.  Essentially Dr Cook says that as a result of the incident in August 2012 when loading luggage on to the coach, which was aggravated by his continued working, Mr Stapley suffered:
  • A generalised musculo-ligamentous injury or soft tissue injury to the lumbosacral spine and especially to the L4-5 intervertebral disc on the right side causing nerve root compression with right sided sciatica; and
  • Aggravation to pre-existing degenerative changes in the lower lumbar and lumbosacral spine.
  1. [89]
    Dr Cook was of the view that if Mr Stapley's history was accurate in that he was asymptomatic prior to the August 2012 incident, "then it would seem that the pre-existing degenerative changes in Mr Stapley's lumbar and lumbosacral spine were completely silent or asymptomatic prior to August 2012.  However the Regulator submitted, if Mr Stapley already had a significant right lateral and right paracentral large disc prolapse he would not have been able to carry out any of his normal duties at work or enjoy normal activities at home, socially and recreationally.
  1. [90]
    The difficulty for Dr Cook, from the Respondent's perspective, was the history provided to him by Mr Stapley was not the same as the history Mr Stapley had given to others.
  1. [91]
    The Respondent says this factor weighs heavily on Mr Stapley's credibility as a witness.  In its view, Mr Stapley's condition was symptomatic six months prior to the August 2012 incident.  At that time Mr Stapley had advised Mr Macgregor he had been experiencing pain radiating down into the back of his thighs for around six months and that this was consistent with his spinal stenosis indicated by both Dr Pincus and Mr Macgregor.
  1. [92]
    The Regulator also argued Dr Cook's belief there had been a musculo-ligamentous soft tissue injury to the lumbosacral spine was dependent upon the accuracy of Mr Stapley's version of the incident of August 2012, which involved him lifting luggage giving rise to his symptoms.  Further, Dr Cook had made his assumptions and opinions based upon an incorrect history having been given to him by Mr Stapley and as such the Commission would prefer the evidence of Dr Pincus and Mr Macgregor.
  1. [93]
    The Appellant referred to Dr Pincus' evidence where he agreed if Mr Stapley had an acute onset of symptoms whilst unloading and loading baggage, his work would be a contributing factor to the development of his symptoms. 
  1. [94]
    The Respondent argued Dr Pincus' evidence should be preferred to that of Dr Cook as it related to the significance of the history provided to Mr Macgregor.  This was because the radiological evidence was consistent with the opinion formed by Mr Macgregor as to the cause and nature of Mr Stapley's condition.
  1. [95]
    Concerning the claim as it relates to the period of time between August 2012 and 4 July 2013, little could be taken from Dr Cook's report.  Dr Cook indicated that if Mr Stapley sustained an acute tear or weakening of the annulus leading to a disc prolapse earlier in the year, there was no way he could have conducted tours, particularly to the outback.  The Respondent submitted the problem in accepting this claim was Mr Stapley continued to conduct tours and work.  He returned to work after the usual break from December to April and took three more tours.  The Respondent noted the Appellant had called no evidence whether factual or medical to establish any work related injury over this period of time.
  1. [96]
    Identifying two particular dates of injury, August 2012 and 4 July 2013, was problematic because the latter relates to a claim for workers' compensation which has already been rejected.
  1. [97]
    Dr Pincus' evidence was the radiological signs did not show any evidence of an injury having been incurred by Mr Stapley.  Further, Mr Stapley was unable to work because of this condition, but his employment had not been a significant contributing factor to his condition.  In terms of Mr Macgregor's notes, Dr Pincus stated:

"All right.  The - Mr McGregor, in his consultation notes, has noted that there was an insidious onset of the bilateral thigh pain.  What is the significance of that observation?  Well, that's - the classical presentation of degenerative spondylosis is that - of degenerative stenosis is that someone presents with - starts to get some pain and they won't - they won't be aware of any injury, It'll just - it'll just start to come on and it gradually, gradually gets worse and there's a - there a corresponding condition which is quite similar where the leg pain comes from stenosis of blood vessels.  That's called vascular claudication and vascular stenosis and - and this symptom of leg pain can be either due to - and - of  - insidious onset of leg pain is either due to the block of blood flow or lack of nerves and, in this - in this situation, the diagnosis was correctly made of - of spinal stenosis."[30]

  1. [98]
    The Respondent says if the Commission accepted the history provided to Mr McGregor, i.e. Mr Stapley experienced six months of intermittent pain which gradually got worse throughout 2012 until it became severe at the end, that this aligned with the scenario as outlined by Dr Pincus.  Dr Pincus' opinion was Mr Stapley's condition had been developing over a 10 to 15 year period. 
  1. [99]
    When queried about the disc bulge having occurred when Mr Stapley had experienced the symptoms complained of in August 2012, Dr Pincus said while this was possible, it was a very unusual clinical presentation in a 63 year old.  He added:

"Because a disc bulge producing a sudden onset of leg pain like that - like what you're describing is - is normally seen in an otherwise healthier spine.  In younger people it produces a severe sudden sciatic pain, usually below the knee and down to the foot associated with numbness and weakness.  So that would be the presentation and the - that's how an acute disc bulge would present, causing leg pain.  So that's something that occurs in a much younger people than Mr Stapley."[31]

  1. [100]
    At one point the Appellant asked Dr Pincus to accept that after the incident in August 2012, when Mr Stapley kept working through to November 2012 performing the same work duties, "would that have aggravated the disc bulge in combination with the stenosis?"  Dr Pincus responded:

"I'm - it's an - his - his stenosis naturally progressed, as that's what normally happens and they normally get worse and worse and worse until they have a decompression.  So I'm not sure that there's a link.  That's what happens with people who have degenerative stenosis.  They get worse."[32] 

  1. [101]
    The Appellant disagreed Mr Stapley had completed the "same duties" when he was working after August 2012.  Ms Rymann gave evidence that after the incident of August 2012, Mr Stapley did less of the luggage handling and was supported in this role by her.  Ms Rymann's evidence was that at the start of the 2013 season, Mr Stapley commenced first in April 2013, doing a training trip for the employer, and she started in May 2013.  She said Mr Stapley was unable to finish that tour and at some stage in June 2013 "… he did something wrong.  I mean, I didn't see it but all I remember is him swearing quite loudly while he was putting the luggage into the...".  It appears Mr Stapley was still handling the luggage as Ms Rymann said "it was the last luggage of the tour because one lady didn't bring it back on time.  And I passed it to him and I went on with whatever I was doing….."  Ms Rymann claimed to have heard him calling out that he had hurt himself.  This detail around this event from Mr Stapley's evidence was that this constituted the injury of June 2013. 

Findings and Conclusions

  1. [102]
    The issue to be determined in this matter is whether Ms Blair sustained an over period of time injury within the meaning of s 32 of the Act.  In particular, Mr Stapley must prove on the balance of probabilities that the degenerative condition of his lumbar spine (or any aggravation thereto) has occurred over a period of time from 1 April 2008 to 21 June 2013 and can be found to have arisen out of, or in the course of his employment with Outback Spirit Tours.
  1. [103]
    There is no contest between the parties Mr Stapley developed a personal injury to his lower lumbar and lumbosacral spine.  The Regulator contends however that there is insufficient evidence to support a finding that Mr Stapley's 'over period of time' injury arose out of his employment and that his employment with Outback Tours was a significant contributing factor to the proposed injury or aggravation.  Conversely, the Appellant's representative argues there is sufficient evidence before the Commission in support of Mr Stapley sustaining an over period of time "injury", as that term is defined in s 32 of the Act.
  1. [104]
    Dr Cook diagnosed a generalized musculo-ligamentous injury or soft tissue injury to the lumbosacral spine and an aggravation to pre-existing degenerative changes in the lower lumbar and lumbosacral spine which he attributed to his work in August 2012.  However, to satisfy the requirements of the Act there must be reasonable proof the incident complained of by Mr Stapley in August 2012 occurred for the medical evidence to have any weight.  The key point on the matter was examined in Pollock v Wellington[33] where Anderson J. posited: (see also Kudryavtseva v Blackwood). [34]

"…expert medical evidence is only of value where the facts upon which it is founded are provided by admissible evidence.  The evidence from the two doctors about the Appellant's history of her injury is not evidence of the facts of that history but does assist in relation to the issue of whether or when she reported the alleged fall and attributed her symptoms to it."

With that in mind it is not sufficient to rely on a statement that something happened, the party alleging the "fact" must provide some direct or corroborative material that demonstrates the existence of a fact in issue.[35]

Did the injury arise out of or in the course of employment?

  1. [105]
    Whilst I am convinced Mr Stapley experienced pain and symptoms over a period of time as a result of his degenerative lumbar condition, I'm not persuaded the initial pain and symptoms complained of by him specifically arose in August 2012 as a result of his work for the following reasons:
  • Dr Adams' notes for the consultation of 22 August 2012 contained no record or reference to Mr Stapley's work or highlighted a particular work incident that may have directly preceded the onset of his pain and symptoms;
  • There were no direct corroborative or eye witness accounts of a luggage incident occurring in August 2012;
  • Despite attending a subsequent physiotherapy appointment on 24 August 2012 with Mr MacGregor and notwithstanding in depth questioning by the physiotherapist with respect to his pain and symptoms, the records for the consultation contained no reference to Mr Stapley mentioning a work-related incident.  Further, Ms MacGregor's notes contained quite a clear reference to the symptoms complained of commencing approximately six months prior to the August 2012 physiotherapy consultation;
  • Mr MacGregor's notes referred to the onset of pain as being 'insidious' and consistent with a diagnosis of spinal stenosis and a degenerative spine; and
  • A close review of medical records and notes retained by the Smithfield Medical Centre or Mr Macgregor indicate there was not one occasion where Mr Macgregor related the onset of his symptoms and pain to work or the performance of his duties.
  • The history reported to Dr Cook by Mr Stapley, particularly in relation to the timing and onset of his pain and symptoms was not entirely consistent with that reported to Professor Whiteford, his GP's and Mr Macgregor.
  1. [106]
    In Lackey v Workcover Queensland,[36]the Industrial Court held the phrase "arising out of" involves a causal or consequential relationship between the employment and the injury, but does not require a direct or proximate relationship.
  1. [107]
    Whilst I do accept Mr Stapley was experiencing pain in his thigh and outer knee in or around August 2012, for the reasons set out above I'm not persuaded on the materials before the Commission that this pain and the related symptoms directly arose out of, or in the course of his employment.
  1. [108]
    Likewise, there is insufficient evidence before the Commission that Mr Stapley's employment and the work activities he was performing on 21 June 2013 contributed to an aggravation of his degenerative back injury.  Instead, I prefer the evidence of Dr Pincus who noted Mr Stapley's "stenosis naturally progressed, as that's what normally happens and they normally get worse and worse and worse until they have a decompression.  So I'm not sure that there's a link.  That's what happens with people who have degenerative stenosis.  They get worse."

 Was Mr Stapley's employment a significant contributing factor to his alleged "over a period of time" injury or any aggravation injury?

  1. [109]
    Whether employment is a significant contributing factor to the injury is a mixed question of law and fact.[37]  In Campbell v Australian Leisure & Hospitality Group Pty Ltd & Anor,[38] President Martin referred to Croning v The Workers' Compensation Board of Queensland[39] noting the employment must be the real or effective cause of the injury, not merely the setting in which it occurred and also Newberry v Suncorp Metway Insurance Ltd[40] where, at [42], Keane JA said:

"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 the employment."

  1. [110]
    As in Croning,[41] the evidence in this matter and in particular that of Dr Pincus' which was far more persuasive than Dr Cook's, suggests Mr Stapley's employment was the setting in which his back pain and symptoms arose, rather than a significant contributing factor to his lower back injury.
  1. [111]
    In particular, I accept Dr Pincus' view Mr Stapley is suffering from a degenerative process in his spine rather than an acute disc bulge brought on by trauma associated with a particular workplace incident or the performance of his luggage duties between the periods of April 2008 and August 2012.  Dr Pincus' opinion is consistent with the records and commentary of Mr MacGregor, the radiological findings of degeneration and the absence of any corroborative records or notes linking the onset of his back pain and symptoms to a workplace incident or the performance of his duties over a period of time.  
  1. [112]
    As such, I consider Mr Stapley has failed to prove on the balance of probabilities that he suffered an over period of time injury between April 2008 and August 2012, which arose out of or in the course of his employment, and where his employment was a significant contributing factor to the lower back injury.  Consequently, I conclude the Appellant did not suffer a physical injury in accordance with s 32 of the Workers Compensation and Rehabilitation Act 2009.
  1. [113]
    Accordingly, I order:
    1. the appeal is dismissed.
    2. the decision of the Worker's Compensation Regulator of 26 August 2014 is upheld;
    3. the Appellant is to pay the Regulator's costs of and incidental to the appeal to be agreed.  In the event agreement cannot be reached between the parties with respect to costs the Respondent has the liberty to apply.

Footnotes

[1] [2015] QIRC 053.

[2] Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48.

[3] (2004) 177 QGIG 769.

[4] (C/2012/35) – Decision .

[5] (1997) 156 QGIG 100.

[6] 186 QGIG 512 [513].

[7] McDonald v Q-COMP (2008) 188 QGIG 180.

[8] Transcript of proceedings, Robin John Stapley v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/282, 10 February 2015) 18 (R.J. Stapley).

[9] Transcript of proceedings, Robin John Stapley v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/282, 10 February 2015) 70 (I, Rymann).

[10] Transcript of proceedings, Robin John Stapley v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/282, 10 February 2015) 24 (R.J. Stapley).

[11] Transcript of proceedings, Robin John Stapley v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/282, 11 February 2015) -- (Dr A. Cook).

[12] Transcript of proceedings, Robin John Stapley v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/282, 10 February 2015) 60 (G. Macgregor).

[13] Transcript of proceedings, Robin John Stapley v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/282, 10 February 2015) 63 (G. Macgregor).

[14] Transcript of proceedings, Robin John Stapley v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/282, 10 February 2015) 63 (MacGregor).  [T1-63]

[15] Transcript of proceedings, Robin John Stapley v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/282, 10 February 2015) 64 (G. Macgregor).

[16] Transcript of proceedings, Robin John Stapley v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/282, 11 February 2015) 3 (Dr A. Cook).

[17] Transcript of proceedings, Robin John Stapley v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/282, 11 February 2015) 4 (Dr A. Cook).

[18] Transcript of proceedings, Robin John Stapley v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/282, 11 February 2015) 4 (Dr A. Cook).

[19] Transcript of proceedings, Robin John Stapley v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/282, 11 February 2015) 7 (Dr A. Cook).

[20] Transcript of proceedings, Robin John Stapley v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/282, 11 February 2015) 8 (Dr A. Cook).

[21] Transcript of proceedings, Robin John Stapley v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/282, 11 February 2015) 9 (Dr Cook).

[22] Transcript of proceedings, Robin John Stapley v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/282, 11 February 2015) 19 (----).

[23] Transcript of proceedings, Robin John Stapley v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/282, 11 February 2015) 10 (--).  [T2-10]

[24] Transcript of proceedings, Robin John Stapley v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/282, 10 February 2015) 18 (R.J. Stapley).  [T2-13]

[25] Transcript of proceedings, Robin John Stapley v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/282, 10 February 2015) 18 (R.J. Stapley). [T2-14]

[26] Transcript of proceedings, Robin John Stapley v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/282, 10 February 2015) 18 (R.J. Stapley). [T2-15]

[27] Transcript of proceedings, Robin John Stapley v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/282, 11 February 2015) 16 (Dr P. Pincus).

[28] Transcript of proceedings, Robin John Stapley v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/282, 11 February 2015) 30 (Dr P. Pincus).

[29] Transcript of proceedings, Robin John Stapley v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/282, 11 February 2015) 30 (Dr P. Pincus).

[30] Transcript of proceedings, Robin John Stapley v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/282, 11 February 2015) -- (Dr P. Pincus).

[31] Transcript of proceedings, Robin John Stapley v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/282, 11 February 2015) -- (Dr P. Pincus).

[32] Transcript of proceedings, Robin John Stapley v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/282, 11 February 2015) -- (Dr P. Pincus).

[33] Pollock v Wellington (1996) 15 WAR 1 at 3.

[34] Kudryavtseva v Blackwood [2015] QIRC 053 [10] citing Coombes v Q-Comp (2007) 185 QGIG 680, 681 (Hall P).

[35] Momcilovic v R (2011) 254 CLR 1.

[36] [2000] QIC 43.

[37] Newberry v Suncorp Metway Insurance Ltd [2006]1 Qd R 519 [40]; Theresa Helen Ward and Q-Comp (C/2011/39QIRC).

[38] [2015] ICQ 016.

[39] (1997) 156 QGIG 100.

[40] [2006] 1 Qd R 519.

[41] Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100.

 

Close

Editorial Notes

  • Published Case Name:

    Stapley v Simon Blackwood (Workers' Compensation Regulator)

  • Shortened Case Name:

    Stapley v Simon Blackwood (Workers' Compensation Regulator)

  • MNC:

    [2015] QIRC 136

  • Court:

    QIRC

  • Judge(s):

    Member Knight IC

  • Date:

    23 Jul 2015

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Campbell v Australian Leisure & Hospitality Group Pty Ltd [2015] ICQ 16
2 citations
Jump To
Cite 1 - [2015] ICQ 16
Cite 2 - [2015] ICQ 16
Coombes v Q-Comp (2007) 185 QGIG 680
3 citations
Jump To
Cite 1 - (2007) 185 QGIG 680
Cite 2 - (2007) 185 QGIG 680
Cite 3 - (2007) 185 QGIG 680
Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100
5 citations
Jump To
Cite 1 - (1997) 156 QGIG 100
Cite 2 - (1997) 156 QGIG 100
Cite 3 - (1997) 156 QGIG 100
Cite 4 - (1997) 156 QGIG 100
Cite 5 - (1997) 156 QGIG 100
Heald v Q-COMP (2004) 177 QGIG 769
2 citations
Jump To
Cite 1 - (2004) 177 QGIG 769
Cite 2 - (2004) 177 QGIG 769
Kudryavtseva v Blackwood [2015] QIRC 53
4 citations
Jump To
Cite 1 - [2015] QIRC 53
Cite 2 - [2015] QIRC 53
Cite 3 - [2015] QIRC 53
Cite 4 - [2015] QIRC 53
Lackey v WorkCover Queensland [2000] QIC 43
2 citations
Jump To
Cite 1 - [2000] QIC 43
Cite 2 - [2000] QIC 43
MacArthur v WorkCover Queensland (2001) 167 QGIG 100
2 citations
Jump To
Cite 1 - (2001) 167 QGIG 100
Cite 2 - (2001) 167 QGIG 100
Momcilovic v R (2011) 254 CLR 1
2 citations
Jump To
Cite 1 - (2011) 254 CLR 1
Cite 2 - (2011) 254 CLR 1
Newberry v Suncorp Metway Insurance Ltd[2006] 1 Qd R 519; [2006] QCA 48
4 citations
Jump To
Cite 1 - [2006] QCA 48
Cite 2 - [2006] QCA 48
Cite 3 - [2006] 1 Qd R 519
Cite 4 - [2006] 1 Qd R 519
Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181
1 citation
Jump To
Cite 1 - (1996) 152 QGIG 1181
Pollock v Wellington (1996) 15 WAR 1
2 citations
Jump To
Cite 1 - (1996) 15 WAR 1
Cite 2 - (1996) 15 WAR 1
Stephen Horace MacDonald v Q-COMP (2) (2008) 188 QGIG 180
2 citations
Jump To
Cite 1 - (2008) 188 QGIG 180
Cite 2 - (2008) 188 QGIG 180
Tophams Ltd v Sefton (1966) 1 All E. R. 1039
1 citation
Jump To
Cite 1 - (1966) 1 All E. R. 1039

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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