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Saeed v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 28

Saeed v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 28

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Saeed v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 028

PARTIES:

Mian Amir Saeed

(Appellant)

v

Simon Blackwood (Workers' Compensation Regulator)

(Respondent)

CASE NO:

WC/2014/276

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

18 February 2015

HEARING DATES:

2, 3 and 4 February 2015

MEMBER:

Industrial Commissioner Neate

ORDERS:

  1. The appeal is allowed.
  2. The decision of the Regulator dated 31 July 2014 is set aside and substituted with a decision that the claim by Mian Amir Saeed is one for acceptance.
  3. The Respondent is to pay the Appellant's costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF REGULATOR - right shoulder pain - rotator cuff tear - whether an "injury" for the purposes of s 32 of the Workers' Compensation and Rehabilitation Act 2003 - appellant's work involved repetitive lifting of crates, including at or above shoulder height - whether injury arose out of, or in the course of, the appellant's employment - whether employment was a significant contributing factor to the injury - conflicting medical opinions - appellant bears onus of proof on the balance of probabilities.

CASES:

Workers' Compensation and Rehabilitation Act 2003 ss 32, 548A, 549

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

Avis v WorkCover Queensland (2000) 165 QGIG 788

Blackwood v Adams [2015] ICQ 001

Blackwood v Mana [2014] ICQ 027

Chattin v WorkCover Queensland (1999) 161 QGIG 531

Commissioner of Police v David Rea [2008] NSWCA 199

Commonwealth Banking Co v Percival (1988) 20 FCR 176

Commonwealth of Australia v Lyon (1979) 24 ALR 300

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

Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626

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

Graham Douglas Sergeant v Q-COMP (C/2010/52) - Decision http://www.qirc.qld.gov.au

Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473

Holtman v Sampson [1985] 2 Qd R 472

Joyce v Yeomans [1981] 1 WLR 549, [1981] 2 All ER 21

Kavanagh v The Commonwealth (1960) 103 CLR 547

Lackey v WorkCover Queensland (2000) 165 QGIG 22

Luxton v Q-Comp (2009) 190 QGIG 4

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

Newberry v Suncorp Metway Insurance Limited [2006] 1 Qd R 519

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

Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181

Qantas Airways Limited v QComp (2006) 181 QGIG 301

Qantas Airways Limited v Q-COMP and Blanch (2009) 191 QGIG 115

Q-COMP v Green (2008) 189 QGIG 747

Ramsay v Watson (1961) 108 CLR 642

Rossmuller v Q-COMP (C/2009/36) - decision http://www.qirc.qld.gov.au

Sotiroulis v Kosac (1978) 80 LSJS 112

State of Queensland (Queensland Health) v QComp and Beverly Coyne (2003) 172 QGIG 1447

Sue-Ellen Mary Carman AND Q-COMP (2007) 186 QGIG 512

Theiss Pty Ltd v Q-COMP (C/2010/11) - Decision http://www.qirc.qld.gov.au

Thorsten Groos AND the WorkCover Queensland (2000) 165 QGIG 106

WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6

APPEARANCES:

Ms S. Anderson, counsel instructed by Littles Lawyers

Dr M. Spry, counsel directly instructed by the Workers' Compensation Regulator

Decision

  1. [1]
    Mian Amir Saeed ("the Appellant") appeals under ss 548A(1) and 549 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act") against a decision of the Workers' Compensation Regulator ("the Respondent") dated 31 July 2014 to set aside the decision of WorkCover Queensland to accept the Appellant's application for compensation and to substitute a decision to reject the application for compensation in accordance with s 32 of the Act.
  1. [2]
    The Appellant claims to have sustained an injury to his right shoulder on or about 12 July 2013.  He says that the injury was sustained over a period of time during the course of his employment as a result of repetitive manual duties.  Therefore, he claims that he sustained an "injury" in accordance with s 32 of the Act and accordingly has an entitlement to compensation for that injury.

Background

  1. [3]
    The Appellant is an Australian citizen who arrived from Pakistan in 1987.  He has been employed in a range of work since then.  He commenced as an apprentice chef then worked as a chef in a family restaurant, and subsequently as a sales consultant and special project manager in real estate, and then as a limousine driver.
  1. [4]
    He is married with five children.  For approximately one and a half years he was not working so that he could care for his teenage son who had a spine condition and needed an operation.  After that period, with the assistance of Mission Australia, he prepared for possible future employment.  He undertook training in order to obtain an HR driving licence for larger trucks.  Around that time he established a cleaning business, but did not undertake cleaning work himself.
  1. [5]
    The Appellant commenced employment as a casual truck driver with Wild Breads Pty Ltd ("Wild Breads") on 18 April 2013.  His work involved delivering crates of bread to customers of Wild Breads, including restaurants, cafes, offices and markets.  He usually did each run himself and was responsible for loading trolleys with crates (each of which weighed 1.9 kg empty) containing bread products, pushing those trolleys from the despatch area to a truck, lifting those crates and a small trolley onto the truck, stacking crates in the truck, driving the products to customers, delivering individual orders to each customer (sometimes by carrying the crate or crates manually rather than using a trolley), collecting empty crates and returning those crates to the depot.  Photographs in evidence (Exhibit 4) show the size of crates and trolleys, and the height of stacks of crates included in some of the orders conveyed by the Appellant.  The truck which he drove had a handle and a steel bar or step at the back to assist him to climb on and off the truck.
  1. [6]
    Evidence about the average weight of loaded crates, and the numbers of loaded and empty crates conveyed each day was given by the Appellant and by Steven Hewitt, the driver manager at Wild Breads and the Appellant's immediate supervisor.  There were understandable variations in the estimates about these quantities.  Where there were inconsistencies, I prefer the more precise and accurate evidence given by Mr Hewitt to that given by the Appellant.  The effect of the evidence was that:
  1. (a)
    crates were packed separately by reference to each customer's order, with orders varying from one loaf on one crate to numerous fully packed crates for a single customer;
  1. (b)
    the weight of each loaded crate would vary depending on the type (and hence weight) of bread or breads on it, but would not exceed about 12 to 14 kg;
  1. (c)
    loaded crates were meant to be stacked up to 11 high in two stacks on each trolley to a total height of about 170-180 cm;
  1. (d)
    each truck could be loaded with crates arranged three stacks wide and six stacks deep and 10 crates high, giving a total of about 180 loaded crates;
  1. (e)
    the city run, on which the Appellant operated, serviced between 30 and 40 customers, and the crates were loaded onto the truck in the order in which they would be delivered to successive customers;
  1. (f)
    the largest loads were carried on a Monday and Friday, with smaller loads each Saturday and Sunday;
  1. (g)
    a relatively light pressed plastic trolley, weighing about 5 or 6 kg, was carried on the truck;
  1. (h)
    the heavier trolleys were kept at Wild Breads' loading bays and, in some cases at the customer's premises, though the Appellant might have taken a heavier trolley on his truck;
  1. (i)
    as well as delivering loaded crates to customers, each driver was to collect empty crates to return to Wild Bread (although the number of empty crates collected on any one day would not necessarily be the same as the number of loaded crates delivered) and the number of crates handled on one day could be in the order of 200-250.
  1. [7]
    The Appellant gave evidence that the number of crates which he carried at any one time depended on the weight of their contents and his ability or comfort to carry them, and was influenced by the need to have an efficient delivery practice.  He would carry one, two, three or four loaded crates.  Although the practice at Wild Breads was apparently to limit stacks to 11 high on a trolley, there is photographic evidence of higher stacks including one that shows crates labelled for individual orders stacked up to 13 crates high.  (Exhibit 4 photograph 4)  Where crates were stacked higher than his height of about 5'6" or 169 cm, the Appellant had to reach up to remove the top crates from that height.  Where the stacks were at or higher than shoulder height, he had to lift one or more crates.  In summary, his work included repetitive lifting and carrying some heavy weights.  As Mr Hewitt said "Delivering bread is heavy work…  It's not an easy job."  He also stated that the Appellant was very fast at the job.
  1. [8]
    The Appellant gave oral evidence that he first experienced pain in relation to his right shoulder in July 2013, nearly three months after commencing work at Wild Breads.  His usual shift commenced at 1.00 am and ended between about 9.30 and 11.30 am.  He would go home, eat breakfast and go to bed.  Initially he did not feel the pain in his right shoulder while lifting the crates but started experiencing pain when he was going to bed after his shift.  He said that he felt itchy and found difficulty sleeping.
  1. [9]
    The records of the medical practice attended by the Appellant and his family indicate that the Appellant mentioned his right shoulder pain in the course of a very brief consultation with Dr Remi Roy on 11 June 2013.  On that occasion, the Appellant was treated for a condition unrelated to these proceedings, and the record states "Next visit, see re right shoulder pain" (Exhibit 8).  At the hearing, the Appellant did not remember mentioning shoulder pain to the doctor on that occasion.
  1. [10]
    The Appellant attended upon his general practitioner, Dr Barbara Vandeleur, on 12 July 2013 complaining of right shoulder pain.  Although the Appellant recalled a casual conversation with her about his employment, Dr Vandeleur did not recall any discussion with the Appellant on that occasion about the cause of his complaint, or the nature of his work.  Dr Vandeleur's notes of that examination recorded "right shoulder pain on abduction and external rotation."  She also recorded "nocturnal aching of shoulder" and "rotator cuftendonitis."  The Appellant was referred to have an ultrasound of his shoulder and steroid injection if appropriate. 
  1. [11]
    On 22 July 2013 the Appellant underwent an ultrasound on his right shoulder.  The radiology report concluded:

"There is evidence of a partial thickness tear involving the articular surface of the supraspinatus tendon.  No subacrominal bursitis."  (Exhibit 11)

  1. [12]
    The Appellant attended on Dr Vandeleur on 24 July 2013 and she recorded "partial thickness tear of supraspinatus tendon."
  1. [13]
    The Appellant attended on his other general practitioner, Dr Anthony Henderson, on 25 November 2013 with a pain in his right shoulder and knee.  The medical record shows that the ultrasound was reviewed and an injection and physiotherapy were needed.  Medication was prescribed and the Appellant was referred for an ultrasound guided injection. 
  1. [14]
    On 13 December 2013, the Appellant received a guided injection.
  1. [15]
    The Appellant saw Dr Henderson again on 2 January 2014 with ongoing right tendonitis.  Dr Henderson referred him for an ultrasound guided repeat injection in the right shoulder and prescribed medication.  He also referred the Appellant for physiotherapy.
  1. [16]
    The Appellant saw Dr Henderson again on 24 February 2014, with ongoing pain to his right shoulder.  Dr Henderson noted that the Appellant "needs to work at truck driver still" and was tired and stressed.  Among other things, Dr Henderson referred the Appellant for repeat ultrasound guided injection for his right shoulder tendinitis.
  1. [17]
    On or about 3 March 2014, the Appellant experienced nausea, vomiting and dizziness at work, apparently as an effect of the pain killing medication he was taking. 
  1. [18]
    The Appellant made a workers' compensation claim with WorkCover Queensland on 4 March 2014, but kept working.
  1. [19]
    When the Appellant saw Dr Henderson on 4 March 2014, Dr Henderson noted that workers' compensation had started.  The Appellant had first been seen at the practice on 12 July 2013 and had had pain since, apparently attributed to lifting boxes at work on to the truck for which he was a driver.  The Appellant had physiotherapy.  He was on partial compensation until 4 April 2014, and was still working.  Light duties and rest and an injection were "coming soon."
  1. [20]
    On 11 March 2014, the Appellant saw Dr Henderson with continuing right shoulder pain.  He also received a guided injection that day.
  1. [21]
    Since the onset of his symptoms in July 2013, the Appellant required ongoing pain relief medication.  The hours that he worked at Wild Breads were sometimes reduced and, as a consequence, the Appellant received a reduced income.
  1. [22]
    The hours he worked as a casual driver are listed in the set of pay advice records in evidence (Exhibit 5).  Those records show a wide variation in the number of hours worked each fortnight reflecting, among other things:
  1. (a)
    the Appellant's desire and willingness to work long hours (up to 100.75 hours) in order to earn income to support his family and pay the bills; and
  1. (b)
    the practical need for the Appellant to work fewer hours (down to 28.50 hours) in periods when his shoulder pain compelled that.
  1. [23]
    The hours worked by the Appellant for Wild Breads each fortnight between April 2013 and March 2014 were:

To 30 April 2013:    77.00 hours

2 to 14 May 2013:    84.50 hours

15 to 28 May 2013:    82.00 hours

29 May to 11 June 2013:   78.50 hours

12 to 25 June 2013:    100.75 hours

26 June to 9 July 2013:    73.25 hours

10 to 23 July 2013:    63.75 hours

24 July to 6 August 2013:   67.00 hours

7 to 20 August 2013:    46.5 hours

21 August to 3 September 2013:   28.50 hours

4 to 17 September 2013:   75.75 hours

18 September to 1 October 2013:   84.50 hours

2 to 15 October 2013:    67.25 hours

16 to 29 October 2013:    58.75 hours

30 October to 12 November 2013:   54.75 hours

13 to 26 November 2013:   59.75 hours

27 November to 10 December 2013:  47.00 hours

11 to 24 December 2013:   51.75 hours

25 December 2013 to 7 January 2014:  41.00 hours

8 to 21 January 2014:    51.50 hours

22 January to 4 February 2014:   63.25 hours

5 to 18 February 2014:    59.25 hours

19 February to 4 March 2014:   46.5 hours

5 to 18 March 2014:    34.75 hours.

  1. [24]
    Those figures show that the number of hours that the Appellant worked declined after he first experienced the symptoms of shoulder pain in mid-July 2013, with the most significant reduction occurring in August.  The number of hours worked then increased significantly in September, before declining from October onwards.  In his oral evidence, the Appellant explained that he experienced considerable relief after injections to his right shoulder or after taking a day or days off work and taking medication for pain relief.  When his shoulder was rested and felt "normal," he would return to his usual duties.  The discomfort was reactivated following a few hours of lifting crates and associated activities.  In November and December 2013 he got help from another driver.
  1. [25]
    The Appellant underwent an MRI scan on 28 April 2014 which revealed a full thickness tear of the anterior fibres of the supraspinatus tendon and a rim rear tear of a subscapularis tendon insertion (Exhibit 9).
  1. [26]
    There is evidence that his injury requires surgical repair.  For example, Dr Wallace expressed the opinion on 28 November 2014 (Exhibit 9) and 7 December 2014 (Exhibit 10) that the Appellant required surgery comprising a rotator cuff decompression and probably repair.

Legislative requirements in relation to the appeal

  1. [27]
    At the relevant date, s 32(1) of the Act provided:

 "32  Meaning of injury

An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury."

  1. [28]
    The appeal is in the nature of a hearing de novo, and the Appellant bears the onus of proof on the balance of probabilities.[1]             
  1. [29]
    In order for the appeal to succeed, the Appellant must prove that:
  1. (a)
    he was at all material times a "worker" for the purposes of the Act;
  1. (b)
    he suffered an "injury";
  1. (c)
    the injury arose out of, or in the course of, the Appellant's employment; and
  1. (d)
    the employment was a significant contributing factor to the injury.
  1. [30]
    The Respondent accepts that the Appellant was at all material times a "worker" for the purposes of the Act.  Consequently, the only issues in this case are whether:
  1. (a)
    he suffered an "injury;"
  1. (b)
    the injury arose out of, or in the course of, the Appellant's employment; and
  1. (c)
    the employment was a significant contributing factor to the injury.
  1. [31]
    Evidence was given to the Commission by the Appellant, David Robbins (the compliance and safety officer of Wild Breads), Steven Hewitt (the driver manager at Wild Breads)  and by the following doctors:
  1. (a)
    Dr Barbara Vandeleur, a general medical practitioner who has been treating the Appellant and his family for about 15 years, who examined the Appellant on 12 July 2013;
  1. (b)
    Dr Anthony Henderson, the Appellant's other regular treating general practitioner (who has been treating the Appellant and his family for at least 15 years), who examined the Appellant in November 2013 and subsequently,  provided written statements dated 2 and 10 June 2014 and 25 November 2014 (Exhibit 8);
  1. (c)
    Dr Malcolm Wallace, an orthopaedic surgeon, who examined the Appellant on 26 November 2014 and provided written reports dated 28 November 2014 (Exhibit 9) and 7 December 2014 (Exhibit 10); and
  1. (d)
    Dr Gregory Nutting, an orthopaedic surgeon, who examined the Appellant at request of WorkCover on 13 May 2014 and provided written reports dated 14 May 2014 (Exhibit 12), 22 May 2014 (Exhibit 14) and 22 September 2014 (Exhibit 13).

Did the Appellant suffer an injury?

  1. [32]
    The threshold issue is whether the Appellant suffered an "injury" and, if so, what was the injury.
  1. [33]
    The Appellant submits that he suffered a right shoulder injury.  In his submission, it is not necessary for the Commission to determine the precise nature of that right shoulder injury, and hence it is not necessary to analyse the diagnoses in evidence to decide the threshold issue.
  1. [34]
    The Respondent, however, submits that the Appellant has not established that he suffered an injury because:
  1. (a)
    the Appellant's partial rotator cuff tear or the full rotator cuff tear are not, in themselves, types of injury but are a condition; and
  1. (b)
    a significant proportion of the population has this condition but it remains asymptomatic (see Exhibit 12 para 8).
  1. [35]
    The definition of "injury" in s 32 of the Act, at the relevant date, provides the context in which this issue is resolved.  Subsection 32(1), as quoted above, defines an injury in terms of a "personal injury" arising out of or in the course of specified circumstances.  Subsection 32(3) provides that "injury" includes a list of things such as a disease contracted in specified circumstances, an aggravation of a personal injury or disease or medical condition if the aggravation arises in specified circumstances, loss of hearing resulting in industrial deafness, and death from specified types of injury, disease or aggravation.  The use of "includes" in subsection (3) indicates that the definition is intended to enlarge the ordinary meaning of the word "injury."[2]  Subsection 32(5) provides that, despite subsections (1) and (3), "injury does not include" a psychiatric or psychological disorder arising out of or in the course of specified circumstances.  The exclusions listed in s 32(5) of the Act are not relevant to these proceedings.
  1. [36]
    The ordinary English meaning of "injury", as set out in standard dictionaries, is expressed in broad terms to be "1.  Harm of any kind done or sustained: to escape without injury.  2. A particular form or instance of harm: severe bodily injuries…"[3], and "harm, damage; …"[4]
  1. [37]
    It follows from:
  1. (a)
    the definition of "injury" in s 32(1) and (3) of the Act; and
  1. (b)
    the ordinary English meaning of "injury",

that something can only be characterised as an "injury" for the purpose of the present proceedings if it comes within the ordinary English meaning of that word or the specific extensions to that meaning listed in s 32(3).

  1. [38]
    If that analysis is correct, a reference to a "right shoulder injury" is not necessarily sufficient to satisfy the statutory definition of "injury."  In other words, to describe something as an injury does not mean that it is self-evidently an "injury." 
  1. [39]
    In Thorsten Groos AND WorkCover Queensland,[5] Hall P wrote:

"The question whether an applicant for compensation has suffered an "injury" within the meaning of the Workers' Compensation Act 1990 is a question of mixed fact and law on which medical evidence is often helpful, but necessarily not decisive."

  1. [40]
    He noted, however, that neither the Act nor relevant regulations required reference to the criteria in various diagnostic standards developed for other purposes, such as the DSM 4 or AMA Guide.  Hall P continued:

"Frankly, if the intention had been to impose an obligation to determine the existence of an injury by assessing impairment under the AMA standard I should have expected to find an express provision.  But it has not been put that the existence of an injury must be determined in that way.  What is put, and put correctly, is that in the case where there is no evidence to the contrary, the existence of the injury may be inferred from the existence of the impairment."

  1. [41]
    The decision in Pleming v Workers' Compensation Board of Queensland[6] ("Pleming") provides guidance on this point.  In that case, de Jersey J considered an appeal in relation to an application for compensation for "on-going pain to lower back" which had been rejected on the basis that the appellant had not suffered an "injury" within the meaning of the Act.  The Industrial Magistrate found that the pain which the appellant experienced was simply a result of irritation of his pre-existing condition and that the appellant's employment had not contributed to any aggravation of the disease.  Having considered relevant judicial authorities, de Jersey J dealt with the major question in that case, namely whether the mere activating of pain is to be equated with aggravation of the disease.  His Honour felt compelled to conclude that aggravation of the disease (a degenerative back condition) had occurred in the circumstances of that case, on the basis that pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place, and a disease can be aggravated because the effects upon the patient are made more serious through the occurrence of symptoms which would not occur but for the employment activity.[7]  However, the appeal was dismissed because de Jersey J held that employment was not a significant contributing factor to that aggravation.
  1. [42]
    In the subsequent case of Sue-Ellen Mary Carman AND Q-COMP,[8] ("Carman") Hall P referred to Pleming as "an often cited but ageing authority" that:
  1. (a)
    does not decide that a worker afflicted by a degenerative back suffers an injury if the back becomes painful at work; and
  1. (b)
    does not establish that a worker with a degenerative back suffers an "injury" if the work is a cause of the onset or intensification of pain; but
  1. (c)
    establishes that a worker with a degenerative back will suffer an injury where the back becomes painful or more painful and the employment is a significant cause of the onset or intensification of pain.
  1. [43]
    For present purposes, the decisions in Pleming and Carman support a finding that a person with a pre-existing degenerative physiological condition can suffer an "injury" (as defined) where the symptoms become painful or more painful, the pain arose out of or in the course of the person's employment, and the person's employment is a significant contributing factor to the onset or intensification of that pain. 
  1. [44]
    As noted earlier, s 32(3) of the Act provides that an "injury" includes an aggravation of:
  1. (a)
    a personal injury (other than a psychiatric or psychological disorder);
  1. (b)
    a medical condition (other than a psychiatric or psychological disorder), if the condition becomes a personal injury because of the aggravation.

 "Aggravation" is defined to include acceleration (s 7, schedule 6).

  1. [45]
    In the course of her submissions on behalf of the Appellant, Ms Anderson stated that, although it is open to the Commission to find that the Appellant's injury was an aggravation, the evidence supports a finding that the tear did not exist before the Appellant started working at Wild Breads and it is more probable on the evidence that the injury occurred as a result of the work done by him.
  1. [46]
    It is necessary to assess the medical evidence in relation to the symptoms experienced by the Appellant and the physical condition that gave rise to those symptoms.
  1. [47]
    There is no evidence that the Appellant experienced any symptoms of right shoulder pain before he commenced employment with Wild Breads on 18 April 2013.  Dr Vandeleur examined the Appellant on 12 July 2013, diagnosed "rotator cuftendonitis" and referred the Appellant to have an ultrasound of his shoulder.  He subsequently had an MRI.  The radiological reports were that:
  1. (a)
    the ultrasound on 22 July 2013 showed a partial thickness tear involving the articular surface of the supraspinatus tendon; and
  1. (b)
    the MRI on 28 April 2014 revealed a full thickness tear of the anterior fibres of the supraspinatus tendon and a rim rear tear of a subscapularis tendon insertion.
  1. [48]
    Specialist medical evidence was given by Dr Wallace and Dr Nutting.  In his first written report, Dr Wallace referred to documentation including medical imaging reports and expressed the opinion that the Appellant had sustained an injury to his right shoulder.  He was no more precise in his diagnosis of the nature of the injury.  However, in his oral evidence he described the injury as the tear of the rotator cuff, with associated pain.  Dr Wallace mistakenly wrote that the MRI scan report contained no report of fatty atrophy of the rotator cuff musculature and therefore, in his opinion, this was not a chronic tear.  In his oral evidence, Dr Wallace acknowledged that the MRI scan report did refer to fatty atrophy.  He also stated that an MRI is more accurate than an ultrasound, describing an MRI as the "gold standard of diagnosis of rotator cuff injuries."  An ultrasound is a guide, but can be in error and quite often does not reflect the pathology in the shoulder.  Accordingly, it is not clear whether there was a partial tear or a full tear in July 2013 at the time of the ultrasound, although Dr Wallace opined that it would be "most probable" that the ultrasound was correct in that there was a partial tear at that time.  His evidence was that fatty atrophy appears about three or more months (but fewer than 12 months) after a tear. 
  1. [49]
    In his written report, Dr Nutting referred to the radiological investigations in some detail, noting that the MRI "is far more accurate" (Exhibit 12).  In his oral evidence, Dr Nutting said that, although the ultrasound showed a partial tear, the ultrasound was not as accurate as the MRI and could not know the thickness of the partial tear.  Consequently, one could not assume that the full thickness tear developed between July 2013 and April 2014.
  1. [50]
    He stated that the anterior supraspinatus is involved and this is most commonly the area involved in natural attrition, whereas the lateral part of the supraspinatus is involved in trauma.  In his opinion, the presence of fatty atrophy of the supraspinatus muscle belly suggested that the pathology would be in excess of three to four months, and possibly up to six months, old.  That is no indication of when the pain occurred.  He also expressed the view that the Appellant's symptomology at 13 May 2014 could be argued, at most, to be an aggravation of a pre-existing condition.  In his report dated 22 September 2014, Dr Nutting reiterated the view that "the odds are very high" that a partial thickness supraspinatus tendon tear existed before the Appellant commenced his job as a truck driver in April 2013 and that, at most, it could be argued that his work activity was an aggravating factor in relation to the "general attrition" that the Appellant already suffered (Exhibit 13). 
  1. [51]
    In his oral evidence, Dr Nutting reiterated that he could see no evidence of a work-related injury.  Indeed he queried whether there was any injury.  He said that he could see a "condition" and that the Appellant had aggravated his underlying condition.  However he conceded that he had made an assumption that the Appellant had some pre-existing degeneration, and that he did not know whether the Appellant did or did not have that condition.
  1. [52]
    Dr Nutting also provided statistical information to the effect that approximately 30 per cent of patients after the age of 40 will have complete cuff tears.  On the basis of that study, it is possible if not likely that 70 per cent of people over 40 years of age will not have a tear.  Dr Nutting agreed that, on those statistics, someone who had never had any pain and was over 40 years of age would be more likely not to have any underlying pathology.
  1. [53]
    The differences of opinion between the specialists reflect some differences of approach to diagnosing the physical condition of the Appellant's right shoulder.  Those opinions also reflect some difference in the use of the word "injury" and, by Dr Nutting, of the word "condition."  A decision about whether the Appellant suffered an "injury" must be made by reference to that term as used in s 32 of the Act, the relevant components of which were discussed earlier (including the words "aggravation" and "condition").
  1. [54]
    The evidence is that the Appellant first experienced right shoulder pain in June or July 2013.  Although there is some doubt as to the extent of the tear when the ultrasound was done on 22 July 2013, the undisputed evidence in relation to the MRI scan is that:
  1. (a)
    there was a full tear at 28 April 2014; and
  1. (b)
    having regard to the fatty atrophy, it is probable that the full tear occurred some three to six (but not more than 12) months earlier, i.e., during the period in which the Appellant was employed at Wilds Breads.
  1. [55]
    It is likely that the Appellant had a partial tear, as disclosed by the ultrasound, by 22 July 2013.  It is also likely, in light of the presence of fatty atrophy in late April 2014, that the partial tear developed into a full tear in the period after the ultrasound.  Although I accept the statistical evidence that approximately 30 per cent of people over 40 years of age have a full cuff tear, and hence it is possible that the Appellant had a partial tear that was asymptomatic before that date, there is also evidence that approximately 70 per cent of people over 40 years of age might not have such a tear.  In the absence of any other evidence that the Appellant had an underlying condition, that statistical data suggests that it is more likely that he did not have that condition.
  1. [56]
    Accordingly, it is open on the evidence to find, and I do find, that the Appellant suffered an injury (namely a rotator cuff tear or right shoulder tendinitis) during the first few months of his employment at Wild Breads.  If I am wrong in that conclusion, I would find that the full tear was an aggravation of a condition which the Appellant might have had at or around the time he commenced employment at Wild Breads.  Such an aggravation also constitutes an "injury" for the purpose of s 32 of the Act.
  1. [57]
    The remaining issues are whether:
  1. (a)
    the injury arose out of, or in the course of, the Appellant's employment; and
  1. (b)
    the employment was a significant contributing factor to the injury.

Was the Appellant's injury work related?

  1. [58]
    Evidence in relation to this issue was given by three lay witnesses (the Appellant, Mr Hewitt and Mr Robbins) and three expert medical witnesses (Drs Henderson, Wallace and Nutting).  It is appropriate to deal with the lay evidence and then the medical evidence, particularly as the Respondent put in issue the credibility of the Appellant and, as a consequence, the reliability of some of the medical evidence which was informed by what the Appellant told the doctors.
  1. [59]
    Lay evidence: The Appellant gave oral evidence that he had not experienced pain in either shoulder before July 2013.  Apart from the brief reference in Exhibit 8 to right shoulder pain on 11 June 2013, there is no medical evidence to suggest otherwise.  The Appellant does not play sport, and his exercise at the gymnasium during the relevant period was apparently limited to using a treadmill.  Apart from playing with his children (including casual pond swimming), he did not engage in physical activities that might have given rise to the shoulder pain which he experienced.
  1. [60]
    The Appellant stated that he did not initially identify the cause of his shoulder pain, thinking at first that he had possibly pulled a muscle and he would get better after medication and an injection.  Although that pain affected his ability to work as a driver, and he had time off work for treatment of the pain or to rest his shoulder, the Appellant stated that he did not link the pain to his work activities or advise his employer that he had a work-related injury until March 2014. 
  1. [61]
    However, the Appellant said that whenever he sought to have time off work, he gave his employer good reasons for that, primarily in relation to his shoulder pain (e.g. to have an ultrasound and injection) and on one occasion to deal with a family commitment.  His practice was to inform his supervisor, Mr Hewitt, by telephone or by SMS text message on the evening before he would not be at work.  Mr Hewitt confirmed that the Appellant would advise him when he was unable to work, although Mr Hewitt's evidence was that the Appellant usually nominated personal or family reasons, rather than his shoulder condition, for not working.
  1. [62]
    In March 2014, the Appellant told Mr Hewitt that he believed he was getting the pain from heavy lifting. 
  1. [63]
    Mr Robbins gave evidence that he first became aware that the Appellant was injured at the time his WorkCover claim was made.  Although he had not been advised about the injury previously by the Appellant or Mr Hewitt, it was apparent from his evidence and that of Mr Hewitt and the Appellant that:
  1. (a)
    Mr Hewitt, who was the Appellant's immediate supervisor, trained the Appellant and worked closely with him, and observed and was aware that the Appellant experienced discomfort (which Mr Hewitt initially thought was from a sore back);
  1. (b)
    the two men did not discuss it much until the Appellant started taking occasional days off work to have injections, and the Appellant did not mention any injury to him;
  1. (c)
    the Appellant told Mr Hewitt in November 2013 that the Appellant had to take time off work in order to have an injection in his shoulder;
  1. (d)
    Mr Hewitt had arranged for at least one other driver to help the Appellant to lift heavy items during November and December 2013, although it might have been that the new driver was assisting as part of his training; 
  1. (e)
    Mr Hewitt first became aware that the Appellant attributed his injury to work when the Appellant was going through the WorkCover process;
  1. (f)
    Mr Hewitt informed Mr Robbins in a type-written statement dated 18 March 2014 (Exhibit 16), after the WorkCover claim had been accepted, that he had been aware of the Appellant having a sore shoulder for "several months" but was not aware of any incident at work that caused the injury.
  1. [64]
    Although Mr Hewitt's written statement (Exhibit 16) includes:

"Mian had not mentioned the pain in his shoulder had been due to an incident at work until he told me so less than 2 weeks ago" (emphasis added)

Mr Hewitt confirmed in his oral evidence that the Appellant had not reported any accident or other incident to him, but only that the pain was caused by the work he was doing.  Mr Hewitt agreed that the Appellant continued to come to work after having injections and that he did his best at work until March 2014 when he filed the workers' compensation claim and stopped doing the city run.

  1. [65]
    In addition to the fact that for some months the Appellant apparently did not attribute his injury to work activities, there was evidence that he did not engage in the workers' compensation scheme because he did not understand how the scheme operated and was keen to continue to work for as long as he was physically able to do so.  Consequently, he did not want to take days off work unnecessarily.
  1. [66]
    I accept that the Appellant made his workers' compensation application only after he was informed by others about how the scheme operates.  Accordingly, I draw no adverse inference from the relative lateness of the application.  In particular, the timing of his application does not affect a finding as to whether the Appellant's injury was work-related.
  1. [67]
    The Respondent submitted that the Appellant was not a credible witness.  In essence, the Respondent submitted that:
  1. (a)
    the Appellant exaggerated the difficulties of his duties, in particular the number of times in each daily run that he had to lift loaded crates that were at or above head height;
  1. (b)
    although his memory was clear during his evidence in chief, the Appellant was evasive in cross-examination;
  1. (c)
    the Appellant failed to report what he now says is a work injury until about March 2014;
  1. (d)
    when asked about his sporting activities, the Appellant did not mention his gym attendance; and
  1. (e)
    the Appellant's evidence was contradicted by his own general practitioners in important respects.
  1. [68]
    These submissions were not made out fully and, to the extent that they can be supported, that they do not compel me to reject or substantially discount the Appellant's evidence.
  1. [69]
    Mr Hewitt gave evidence that the Appellant was upset when his workers' compensation claim had been rejected, and that the Appellant told Mr Hewitt that he would not be able to have surgery on his shoulder and return to work.  The Appellant undoubtedly wants to succeed in these proceedings.  To the extent that to some degree he overstated aspects of his work activities, or he inaccurately estimated some quantities, I have preferred the evidence of others.  That does not mean that he lacked credibility as a witness.  I did not find him evasive when giving oral evidence.
  1. [70]
    The Appellant's failure to report what he now says is a work-related injury until March 2014 was considered earlier in these reasons, and is not the basis for rejecting or substantially discounting his evidence. 
  1. [71]
    The fact that he did not mention attending a gymnasium when asked in examination in chief if he was a "particularly sporting person", is readily explicable by reference to the ordinary meaning of the word "sport"[9] let alone any difficulties that the Appellant experienced from time-to-time in understanding questions and giving answers in English.  In any case, when he was asked in cross-examination whether he would "take some exercise" he replied that he was "doing a treadmill" and agreed that he was going to the gym.
  1. [72]
    Although Mr Hewitt's accounts or recollections of some conversations with the Appellant were not consistent with the Appellant's, he said in cross-examination that he did not have any difficulty in his relationship with the Appellant while they were working together.  When given the opportunity to elaborate in re-examination, Mr Hewitt said he had nothing to add, but stated "Mian was a good worker."
  1. [73]
    Other matters emerged or were alluded to in evidence which, less directly or inferentially, might have cast some doubt on the Appellant's credit, at least in relation to the way in which he sought to prosecute his appeal.  Those matters were not relied upon in final submissions and they did not have a bearing on whether the Appellant suffered an injury and whether that injury satisfies the requirements of s 32 of the Act. 
  1. [74]
    Part of the Respondent's case in relation to the Appellant's credibility is that the experience of pain is subjective.  As noted earlier, the Appellant reported shoulder pain to his general practitioners at least as early as 12 July 2013.  Dr Vandeleur's notes do not indicate why she diagnosed a rotator cuff injury, but presumably the symptoms described to, or observed by, her were sufficient for that purpose.  If the evidence of pain includes the extent to which the Appellant could raise his arm, then that evidence is inconclusive.  When he saw Dr Nutting on 13 May 2013, the Appellant could lift his arm to 150 degrees (of a maximum 180 degrees), yet when he saw Dr Wallace on 26 November 2014 (some eight months after ceasing his bread delivery work) the Appellant could only lift his arm to 90 degrees, i.e. horizontal with the ground.  Those variations form only a small part of the evidence about the nature and effect of his injury and can be explained by reference to a number of factors.  They do not undermine the Appellant's credibility as a witness, nor the veracity of the doctors' reports.
  1. [75]
    The credit of the Appellant is relevant not only to the impression he made on the Commission during the hearing, but also because it was his history of events on which the doctors relied, in part at least, in developing their opinions.  The Respondent submits that, even on his own evidence, the Appellant should not succeed because, if his injury was caused by lifting heavy crates loaded with bread at shoulder height or above, he did not do this often and certainly not 15 to 20 times each day.  In his oral evidence, Dr Wallace stated that lifting weights one or two times would not be sufficient.
  1. [76]
    On that point, the Respondent relies on the proposition reiterated recently by Martin J in Blackwood v Mana[10] to submit that Dr Wallace's opinion as to the likely cause of the Appellant's tear is of no value to the Commission.  In that case, Martin J wrote:

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

The Respondent further submits that if Dr Wallace's opinion cannot be relied on, then Dr Nutting's evidence in relation to Dr Wallace's opinion could not be relied on.

  1. [77]
    As Martin J noted, in Blackwood v Mana there was "a substantial gap between the evidence of the circumstances at the workplace and the circumstances which were relied upon by the expert witnesses"[11]and it was "not a case in which there has been an inconsistency in a trifling respect between the evidence given and the history related to the experts,"[12] but the case that was put to the experts was "substantially different" from that put before the Industrial Magistrate.
  1. [78]
    There was evidence that the size of deliveries varied from day to day during each week, and the height of stacks of crates (both at Wild Breads and on the truck) varied in accordance with individual orders.  Consequently, it is not possible to state precisely how often each day (or on average each week) the stacks being loaded onto the truck and being unloaded from the truck were at or above the Appellant's shoulder height.  However, if a stack of 11 crates was 170-180 cm high, then at least two crates would have been above the Appellant's shoulder height.  As noted earlier, there is photographic evidence that some stacks exceeded 11 crates.  I am satisfied that, having regard to the photographic and other evidence and the height of the Appellant, it is likely that he lifted one or more crates at or above shoulder height regularly in the course of each working day.
  1. [79]
    Any differences between the evidence in these proceedings and the information given to Dr Wallace could not be described as comprising a "substantial gap" or being "substantially different."  Indeed, he was given an opportunity to revise his opinion about the cause of injury when some different evidence about the weight of loaded crates was put to him in the hearing.  He understood that the Appellant's work involved repetitive lifting of crates above, at and below shoulder height, and pushing trolleys.  (Exhibit 9) In addition, it is clear that Dr Wallace's opinion is based on a range of information, (including his examination of the Appellant and a range of documents) not only the number of times each working day that the Appellant had to lift loads at or above shoulder height, a number which was only proffered by Dr Wallace in the course of his cross-examination long after his written report.  He also gave oral evidence that it might only take two days or a few weeks for a partial thickness tear to develop.
  1. [80]
    I am not satisfied that the evidence of Dr Wallace should be disregarded.  Rather, it should be assessed in light of all of the lay and expert evidence before the Commission. 
  1. [81]
    Expert medical evidence: The doctors who examined the Appellant and whose evidence is before the Commission expressed different opinions about whether the Appellant's injury arose out of, or in the course of, the his employment, and whether his employment was a significant contributing factor to the injury.
  1. [82]
    In summary:
  1. (a)
    Dr Henderson expressed his opinion that the Appellant's problem "is caused by his work" (Exhibit 8);
  1. (b)
    Dr Wallace expressed his opinion that "there is a direct relationship between the type of work that he [the Appellant] was required to do and the development of his shoulder symptoms" (Exhibit 9) and that the Appellant's right shoulder injury "is work-related and that work has been a significant contributing factor to this" (Exhibit 10);
  1. (c)
    however, Dr Nutting stated that he was "unable to find any evidence of a work-related injury" (Exhibit 12).
  1. [83]
    The basis for each opinion is found in written and oral evidence from the relevant doctor.
  1. [84]
    Dr Henderson issued five workers' compensation medical certificates between 4 March 2014 and 1 May 2014 in which he recorded a diagnosis of "shoulder tendon partial tear" (4 March 2014) or "shoulder tendinitis" (21 and 28 March, 2 April and 1 May 2014).  The first two certificates recorded the worker's stated cause of injury as "lifting boxes at work …" and "lifting boxes."  In essence, Dr Henderson's medical statement was that, although there is no record of work injury, the Appellant's work is such that he would have had pain injury from his job.  The Appellant has "a clear problem" which Dr Henderson feels "is caused by his work."  In Dr Henderson's opinion, the Appellant's shoulder problems are "a result of" his work (Exhibit 8).  In a letter to the Appellant's lawyers dated 25 November 2014, Dr Henderson repeated his belief that the Appellant had "a work injury caused by repetitive lifting" and stated his strong feeling that the Appellant had "a work injury" (Exhibit 8). 
  1. [85]
    In his oral evidence, Dr Henderson continued with that view.  He stated that the Appellant's work was consistent with his injury and "would have been the most likely cause" of the shoulder pain, and that the Appellant had not referred to other activities that could cause his injury.  Although he cannot be sure when the injury occurred, particularly as the injury was caused by repetitive strain rather than a specific incident, Dr Henderson thought it was before July 2013.  In his opinion, given the Appellant's age (47 in 2014), the injury was not degeneration caused by the Appellant's ageing or natural attrition. 
  1. [86]
    The Regulator sought to minimise the effect of Dr Henderson's evidence on the basis that he could be characterised as an advocate for the Appellant rather than an independent medical expert.  Having formed the view that the Appellant was entitled to workers' compensation, Dr Henderson had "overstepped the mark" and his opinion as to causation should not be accepted.[13]
  1. [87]
    Having heard Dr Henderson's oral evidence and considered carefully the various documents prepared and signed by him in relation to the Appellant's injury, I am satisfied that Dr Henderson was acting professionally in his patient's interests.  That does not detract from his opinion evidence.  Accordingly, I accept his evidence, as summarised above, and will give it appropriate weight by reference to the extent of his knowledge and treatment of the Appellant and his professional qualifications and the qualifications of other expert medical witnesses.
  1. [88]
    In his written reports, Dr Wallace provided relatively little reasoning in support of his opinion that the Appellant's injury had occurred as a result of the nature and conditions of his work.  From those reports it appears that Dr Wallace reached that conclusion because:
  1. (a)
    the Appellant's right shoulder injury first arose some three months before his visit to his general practitioner on 12 July 2013 (Exhibit 10);
  1. (b)
    in his opinion, the mechanism of injury was consistent with the type of duties that the Appellant was required to undertake (Exhibit 10);
  1. (c)
    in his opinion, there was a direct relationship between the type of work that the Appellant was required to do and the development of his shoulder symptoms (Exhibit 9).
  1. [89]
    In his more extensive oral evidence on this matter, Dr Wallace expressed the view that:
  1. (a)
    although a rotator cuff tear is an existing or underlying condition that is relatively common in the general population and can be attributed to wear and tear over time (referred to as attritional tear), he could not say whether the Appellant had that condition.  Rather, there was no evidence that the Appellant had any underlying condition and the Appellant may be in the 70 per cent of the population who do not have it;
  1. (b)
    such a tear in a person of the Appellant's age is more likely when the person is engaged in repetitive work at or above shoulder height, (particularly involving carrying a weight) and less likely if the person is not doing such activity;
  1. (c)
    the symptoms are often worse at the end of a period of physical exertion, and a person tends to notice a sore shoulder at the end of the day and it might keep them awake at night but they might not identify the connection between their work activities and the pain;
  1. (d)
    if a person had no pre-existing condition, a partial thickness tear could develop a few days or weeks after commencing work of the type undertaken by the Appellant;
  1. (e)
    if a person had a pre-existing condition, symptoms could occur after a day or two of undertaking such work;
  1. (f)
    a tear in a person of the Appellant's age group may not result from a specific event and may not lead to a sudden onset of pain, and the Appellant's history of the development and experience of symptoms is a fairly common pattern of development;
  1. (g)
    although the injury may have happened over time without the work the Appellant was doing, in his opinion, the Appellant's employment had caused the tearing of his rotator cuff;
  1. (h)
    the type of repetitive work undertaken by the Appellant was a significant contributing factor to the development of his shoulder problem and was consistent with him first experiencing pain in about June or July 2013.
  1. [90]
    In support of his conclusion that there was no evidence of a work-related injury, Dr Nutting expressed his opinions about:
  1. (a)
    whether the Appellant's work could have caused the tear; and
  1. (b)
    whether the tear caused the Appellant pain.
  1. [91]
    In relation to the cause of the tear, Dr Nutting agreed that it is possible that, before he reported his shoulder pain, the Appellant was part of the 70 per cent of the population over 40 years of age who had no tear in their supraspinatus tendon.  There was no way of Dr Nutting knowing into which category the Appellant fell at that time because there was no investigation undertaken before he reported pain.
  1. [92]
    In his oral evidence, Dr Nutting referred to published statistical studies which, he said showed that the only constant factor that triggers full thickness tears in the rotator cuff is working overhead in a prolonged position or an awkward position (e.g. in and under air conditioning ducts).  More generally, however, many heavy manual labourers never have a rotator cuff tear and there are many sedentary workers (e.g. clerical workers) who do.  Dr Nutting agreed that if someone had to hold their hands up 1.2 m wide in order to lift or carry something (i.e. to do overhead work of the nature that the Appellant was doing), that would be an awkward position that would possibly contribute to pain in the shoulder or cause a tear.
  1. [93]
    Dr Nutting could not say whether the Appellant's work was a significant contributing factor to the pathology that he saw.  He agreed that, having regard to the history of the Appellant's employment activities and the absence of any evidence that his injury was caused by any other activity, it was possible that the work he was doing contributed to that pathology, or at least his pain and difficulty in moving his shoulder.   
  1. [94]
    Although he respected Dr Wallace's opinion, Dr Nutting suggested that Dr Wallace did not say what the injury is.  He described Dr Wallace's reference to pain and difficulty in rotation as symptoms not diagnoses, and suggested that, contrary to Dr Wallace, it did not necessarily follow that the Appellant's work was a significant contributing factor to the development of the full thickness tear in the supraspinatus. 
  1. [95]
    In Dr Nutting's view, "it's very likely that there was a tear in the first instance and the new work aggravated it… and that the continuation of the new work with a shoulder which was mechanically out of alignment, shall we say, because of the posterior capsule and the impingement, increased the size of the tear.  So that would be the implication."  Dr Nutting said that there was a "possibility" that the Appellant's work was a significant contributing factor to increasing the size of the tear, but he was not willing to say that that was likely. 
  1. [96]
    According to Dr Nutting, it could be argued that the Appellant's work activity was an aggravating factor because there was uncertainty as to when the supraspinatus pathology would have commenced and it would be appropriate to say that unaccustomed activity could make this underlying degenerative process symptomatic.  Indeed, he confirmed in a letter to WorkCover dated 22 May 2014 (Exhibit 14) his view, expressed in his report dated 14 May 2014 (Exhibit 12), that the pathology related to the Appellant's right shoulder "had been aggravated by his activities over time with no specific trauma being involved." 
  1. [97]
    Given my findings earlier in relation to the nature of the injury suffered by the Appellant, it is clear that, at the very least, the injury comprised an extended tear or aggravation of an existing condition.  Consequently, aspects of Dr Nutting's evidence are consistent with a conclusion that the Appellant's work activities caused an aggravation of a pre-existing condition (if the Appellant had such a condition).
  1. [98]
    In relation to whether the tear caused the Appellant pain, Dr Nutting noted that the symptoms experienced by the Appellant were pain and reduced movement in his shoulder, symptoms that the Appellant had not experienced before commencing employment as a driver at Wild Breads.  
  1. [99]
    In Dr Nutting's opinion there was a question whether the pain experienced by the Appellant was related to the rotator cuff. He expressly resiled from saying exactly what, in his opinion was the source of the Appellant's pain.  Rather, he stated that the Appellant had impingement and other mechanical things that need to be addressed.  Dr Nutting stated that no one has proved that a partial tear of the supraspinatus causes symptoms.  Rather the degree of bursitis, not the extent of a tear, determines whether a person has symptoms.  At the time when a doctor is examining the patient, indirect force from other components of the rotator cuff could cause discomfort.  Consequently a doctor would not rely on a radiologist to diagnose that.  In his report dated 14 May 2014 (Exhibit 12) and his oral evidence, Dr Nutting noted that the ultrasound indicated that there was no acute inflammatory process at the time of the study otherwise there would have been subacromial bursitis.  The fact that a partial tear was reported at that time should have suggested that this was not an acute injury, since that would have been accompanied by at least an effusion and more likely a bursitis.  The absence of bursitis suggested to Dr Nutting that there was not an acute injury of the rotator cuff. 
  1. [100]
    Dr Nutting suggested that the Appellant's activity in lifting bread crates was reproducing, exacerbating or increasing the pain on the basis of something which was not working properly.  Whether the supraspinatus was the reason for that pain was in issue.  Dr Nutting was unable to say what caused the Appellant's pain, and was unwilling to say that the full thickness tear was the cause.  He did suggest, however, that because the Appellant had been relatively inactive before working at Wild Breads, the change in his activity and level of physical exertion might have contributed to his experience of pain or discomfort. 
  1. [101]
    In cross-examination, Dr Nutting agreed that it is a "possibility" that, if a person who had never experienced pain in the shoulder before doing overhead work started to experience pain, their work has contributed to the pain.
  1. [102]
    Resolving the conflict of expert opinions: Where, as in this case, there is a conflict of opinions between expert medical witnesses the following propositions drawn from judicial authorities apply:
  1. (a)
    the tribunal of fact can be assisted by expert medical opinion evidence, but must weigh and determine the probabilities as to the cause of an ailment or injury having regard to the whole of the evidence;[14]
  1. (b)
    the tribunal's duty is to find ultimate facts and, so far as it is reasonably possible to do so, to look not merely at the expertise of the expert witness, but to examine the substance of the opinion expressed and (where experts differ) to apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted;[15]
  1. (c)
    only when medical science denies that there is a connection between, for example, certain events and a person's death can a judge not act as if there were a connection; but if medical science is prepared to say that it is a possible view, then the judge after examining the lay evidence can decide that it is probable;[16]
  1. (d)
    the finding could be described as one based on the credibility of expert witnesses, having regard to such things as whether the witnesses display signs of partisanship in the witness box or lack of objectivity, and whether they make proper concessions to the viewpoint of the other side;[17]
  1. (e)
    distinctions may be drawn on the basis of demeanour (a limited ground where experts are under consideration); qualifications, impressiveness and cogency of reasoning and exposition of reasoning; preparation for, and application to, the problem in hand; and the extent to which the witness had a correct grasp of basic, objective facts relevant to the problem;[18] and
  1. (f)
    if it is open to the tribunal to prefer one body of evidence to the other on grounds fairly discerned, the tribunal should express its reasoned preference.[19]
  1. [103]
    In applying those propositions in the present case, it is also necessary to remember that these proceedings are conducted as a hearing de novo and the Appellant bears the onus of proof on the balance of probabilities.[20]
  1. [104]
    Although the doctors reached different conclusions, it is apparent from their reasoning (including the assumptions or evidence on which each proceeded) and their answers to questions in the course of the hearing that the following conclusions are open to the Commission in this case:
  1. (a)
    there is no evidence that the Appellant had a rotator cuff tear in April 2013, and the statistical evidence suggests that it is more likely than not that he did not have such a tear then;
  1. (b)
    the right shoulder pain and the difficulty in moving his shoulder experienced by the Appellant was consistent with him suffering a partial or full thickness tear;
  1. (c)
    such a tear could be caused, or aggravated, by activities such as the repeated lifting of weights at or above shoulder height and other physical activity in awkward positions;
  1. (d)
    the time when the Appellant first experienced symptoms in relation to his right shoulder (and the persistence of those symptoms afterwards) supports a finding that the injury occurred during his period of employment at Wild Breads and as a result of his work activities, particularly repeated lifting of crates at or above shoulder height; and
  1. (e)
    no doctor denied that there could be a connection between the work activities and the tear, and Dr Nutting conceded the possibility that the Appellant's work contributed to his pain and to an increase in the size of his tear.
  1. [105]
    Those conclusions should be assessed alongside other evidence that:
  1. (a)
    the Appellant did not experience right shoulder pain or any other symptoms in relation to the injury until some months after he commenced employment at Wild Breads; and
  1. (b)
    the Appellant did not undertake other physical activity before April 2013, or during the following months, which might have caused the injury or the symptoms which he experienced in relation to his right shoulder.

Consideration and conclusion

  1. [106]
    As noted earlier in these reasons, in order for the appeal to succeed, the Appellant must prove on the balance of probabilities that:
  1. (a)
    he suffered an "injury";
  1. (b)
    the injury arose out of, or in the course of, the Appellant's employment; and
  1. (c)
    the employment was a significant contributing factor to the injury.
  1. [107]
    For reasons given earlier, I am satisfied that the Appellant suffered an injury.
  1. [108]
    In deciding the other matters, it is necessary to bear in mind that an injury which arises out of employment occurs where there is a causal connection between the employment and the injury.[21]  Although the words "arising out of" do not require the direct or proximate relationship which would be necessary if the phrase used was "caused by," there must be some causal or consequential relationship between the worker's employment and the injury.[22]
  1. [109]
    An injury "in the course of employment" means an injury is sustained while the worker is engaged in the work that he or she is employed to do or in something which is concomitant of, or reasonably incidental to, the person's employment to do that work.[23]
  1. [110]
    For employment to be "a significant contributing factor" to the injury, the employment must be important or of consequence,[24] and there should be some linkage between the employment and the injury.[25]
  1. [111]
    In Chattin v WorkCover Queensland[26] Williams P wrote:

"The function of a court of law in a situation such as this is to determine whether, for whatever reason, it is more probable than not that there is a causal relationship between the accident and the plaintiff's post accident condition."

  1. [112]
    Having considered the lay and expert medical evidence, I am satisfied on the balance of probabilities that the Appellant's injury arose out of, or in the course of, his employment and that the employment was a significant contributing factor to his injury.  In particular, it will be apparent from the summary and analysis of the evidence above, that I am satisfied that the injury arose during the time when the Appellant was employed as a casual driver by Wild Breads and that it was caused by his work activities involving the repetitive lifting of crates loaded with bread at or above shoulder height.
  1. [113]
    Consequently, the appeal is allowed, the claim is one for acceptance, and the decision of the Regulator dated 31 July 2013 is set aside and substituted with a decision that the Appellant's claim is one for acceptance.  The Regulator is to pay the Appellant's costs of and incidental to the appeal.
  1. [114]
    Order accordingly.

Footnotes

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

[2] See DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7th ed, 2011) [6.61] and cases cited there.

[3] Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd, 5th ed, 2009), 860.

[4] The Australian Concise Oxford Dictionary (Oxford University Press, 1987), 551.

[5] Thorsten Groos AND the WorkCover Queensland (2000) 165 QGIG 106, 107.

[6] Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181.

[7] Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181, 1182 citing Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626,  Commonwealth Banking Co v Percival (1988) 20 FCR 176.

[8] Sue-Ellen Mary Carman AND Q-COMP (2007) 186 QGIG 512, 513.

[9] E.g. "an activity pursued for exercise or pleasure, usually requiring some degree of physical prowess, as hunting, fishing, racing, baseball, tennis, golf, bowling, wrestling, boxing, etc" Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd, 5th ed, 2009), 1593.

[10] Blackwood v Mana [2014] ICQ 027, [13].

[11] Blackwood v Mana [2014] ICQ 027, [14].

[12] Blackwood v Mana [2014] ICQ 027, [19]

 

[13] Blackwood v Adams [2015] ICQ 001, [21].

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

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

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

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

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

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

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

[21] Kavanagh v The Commonwealth (1960) 103 CLR 547, 556 (Dixon J), 558 (Fullagar J).

[22] Avis v WorkCover Queensland (2000) 165 QGIG 788, 788 (Hall P); Lackey v WorkCover Queensland (2000) 165 QGIG 22, 23 (HallP); WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6, 7 (Hall P).

[23] Commonwealth of Australia v Lyon (1979) 24 ALR 300, 303-304 (Deane J); Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, 478 (Mason CJ, Deane, Dawson and McHugh JJ); Theiss Pty Ltd v Q-COMP (C/2010/11) - Decision http://www.qirc.qld.gov.au, [3] (Hall P).

[24] Q-COMP v Green (2008) 189 QGIG 747, 751 (Hall P); Luxton v Q-Comp (2009) 190 QGIG 4, 6 (Hall P). See also Qantas Airways Limited v Q-COMP and Blanch (2009) 191 QGIG 115, 119 (Hall P),   Newberry v Suncorp Metway Insurance Limited [2006] 1 Qd R 519.

[25] Graham Douglas Sergeant v Q-COMP (C/2010/52) - Decision http://www.qirc.qld.gov.au, [15] (Hall P).

[26] Chattin v WorkCover Queensland (1999) 161 QGIG 531, [44].

Close

Editorial Notes

  • Published Case Name:

    Saeed v Simon Blackwood (Workers' Compensation Regulator)

  • Shortened Case Name:

    Saeed v Simon Blackwood (Workers' Compensation Regulator)

  • MNC:

    [2015] QIRC 28

  • Court:

    QIRC

  • Judge(s):

    Neate IC

  • Date:

    18 Feb 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
Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
2 citations
Jump To
Cite 1 - (1940) 64 CLR 538
Cite 2 - (1940) 64 CLR 538
Avis v WorkCover Queensland (2000) 165 QGIG 788
2 citations
Jump To
Cite 1 - (2000) 165 QGIG 788
Cite 2 - (2000) 165 QGIG 788
Blackwood v Mana [2014] ICQ 27
4 citations
Jump To
Cite 1 - [2014] ICQ 27
Cite 2 - [2014] ICQ 27
Cite 3 - [2014] ICQ 27
Cite 4 - [2014] ICQ 27
Carman v Q-Comp (2007) 186 QGIG 512
2 citations
Jump To
Cite 1 - (2007) 186 QGIG 512
Cite 2 - (2007) 186 QGIG 512
Chattin v WorkCover Queensland (1999) 161 QGIG 531
4 citations
Jump To
Cite 1 - (1999) 161 QGIG 531
Cite 2 - (1999) 161 QGIG 531
Cite 3 - (1999) 161 QGIG 531
Cite 4 - (1999) 161 QGIG 531
Commissioner of Police v David Rea (2008) NSWCA 199
2 citations
Jump To
Cite 1 - (2008) NSWCA 199
Cite 2 - (2008) NSWCA 199
Commonwealth Banking Co v Percival (1988) 20 FCR 176
2 citations
Jump To
Cite 1 - (1988) 20 FCR 176
Cite 2 - (1988) 20 FCR 176
EMI (Australia) Limited v Bes (1970) 44 WCR 114
2 citations
Jump To
Cite 1 - (1970) 44 WCR 114
Cite 2 - (1970) 44 WCR 114
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
2 citations
Jump To
Cite 1 - (1964) 110 CLR 626
Cite 2 - (1964) 110 CLR 626
Fernandez v Tubemakers of Australia (1975) 2 NSWLR 190
2 citations
Jump To
Cite 1 - (1975) 2 NSWLR 190
Cite 2 - (1975) 2 NSWLR 190
Groos v WorkCover Queensland (2000) 165 QGIG 106
2 citations
Jump To
Cite 1 - (2000) 165 QGIG 106
Cite 2 - (2000) 165 QGIG 106
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
2 citations
Jump To
Cite 1 - (1992) 173 CLR 473
Cite 2 - (1992) 173 CLR 473
Holtman v Sampson [1985] 2 Qd R 472
3 citations
Jump To
Cite 1 - [1985] 2 Qd R 472
Cite 2 - [1985] 2 Qd R 472
Cite 3 - [1985] 2 Qd R 472
Isolde Obstoj v Irene Helen Van Der Loos [1987] QSC 76
2 citations
Jump To
Cite 1 - [1987] QSC 76
Cite 2 - [1987] QSC 76
Joyce v Yeomans [1981] 1 WLR 549
2 citations
Jump To
Cite 1 - [1981] 1 WLR 549
Cite 2 - [1981] 1 WLR 549
Joyce v Yeomans [1981] 2 All E.R. 21
2 citations
Jump To
Cite 1 - [1981] 2 All E.R. 21
Cite 2 - [1981] 2 All E.R. 21
Kavanagh v The Commonwealth (1960) 103 CLR 547
2 citations
Jump To
Cite 1 - (1960) 103 CLR 547
Cite 2 - (1960) 103 CLR 547
Lackey v WorkCover Queensland (2000) 165 QGIG 22
2 citations
Jump To
Cite 1 - (2000) 165 QGIG 22
Cite 2 - (2000) 165 QGIG 22
Luxton v Q-Comp (2009) 190 QGIG 4
2 citations
Jump To
Cite 1 - (2009) 190 QGIG 4
Cite 2 - (2009) 190 QGIG 4
Monroe Australia Pty Ltd v Campbell (1995) 65 SASR 16
3 citations
Jump To
Cite 1 - (1995) 65 SASR 16
Cite 2 - (1995) 65 SASR 16
Cite 3 - (1995) 65 SASR 16
Newberry v Suncorp Metway Insurance Ltd[2006] 1 Qd R 519; [2006] QCA 48
2 citations
Jump To
Cite 1 - [2006] 1 Qd R 519
Cite 2 - [2006] 1 Qd R 519
Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181
3 citations
Jump To
Cite 1 - (1996) 152 QGIG 1181
Cite 2 - (1996) 152 QGIG 1181
Cite 3 - (1996) 152 QGIG 1181
Q-COMP v Green (2008) 189 QGIG 747
2 citations
Jump To
Cite 1 - (2008) 189 QGIG 747
Cite 2 - (2008) 189 QGIG 747
Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301
3 citations
Jump To
Cite 1 - (2006) 181 QGIG 301
Cite 2 - (2006) 181 QGIG 301
Cite 3 - (2006) 181 QGIG 301
QANTAS Airways Limited v Q-Comp and Michelle Blanch (2009) 191 QGIG 115
2 citations
Jump To
Cite 1 - (2009) 191 QGIG 115
Cite 2 - (2009) 191 QGIG 115
Ramsay v Watson (1961) 108 CLR 642
2 citations
Jump To
Cite 1 - (1961) 108 CLR 642
Cite 2 - (1961) 108 CLR 642
Rossmuller v Q-COMP [2010] ICQ 4
2 citations
Jump To
Cite 1 - [2010] ICQ 4
Cite 2 - [2010] ICQ 4
Sergeant v Q-COMP [2010] ICQ 51
1 citation
Jump To
Cite 1 - [2010] ICQ 51
Sotiroulis v Kosac (1978) 80 LSJS 112
3 citations
Jump To
Cite 1 - (1978) 80 LSJS 112
Cite 2 - (1978) 80 LSJS 112
Cite 3 - (1978) 80 LSJS 112
State of Queensland v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447
3 citations
Jump To
Cite 1 - (2003) 172 QGIG 1447
Cite 2 - (2003) 172 QGIG 1447
Cite 3 - (2003) 172 QGIG 1447
The Commonwealth v Lyon (1979) 24 ALR 300
2 citations
Jump To
Cite 1 - (1979) 24 ALR 300
Cite 2 - (1979) 24 ALR 300
Thiess Pty Ltd v Q-COMP [2010] QIRC 6
2 citations
Jump To
Cite 1 - [2010] QIRC 6
Cite 2 - [2010] QIRC 6
WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6
2 citations
Jump To
Cite 1 - (2003) 172 QGIG 6
Cite 2 - (2003) 172 QGIG 6
Workers' Compensation Regulator v Adams [2015] ICQ 1
2 citations
Jump To
Cite 1 - [2015] ICQ 1
Cite 2 - [2015] ICQ 1

Cases Citing

Case NameFull CitationFrequency
Morrison v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 1462 citations
Saeed v Carter Capner Law [2020] QSC 1771 citation
Starling v Workers' Compensation Regulator [2020] QIRC 393 citations
1

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