Kudryavtseva v Blackwood[2015] QIRC 53

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Decision

1. [1]
   This is an appeal by Ekaterina Kudryavtseva ("the Appellant") to the Queensland Industrial Relations Commission ("the Commission") against the decision of the Workers' Compensation Regulator ("the Respondent") to reject her application for compensation.  The appeal is made under the Workers' Compensation and Rehabilitation Act 2003 ("the Act").

Brief history of the claim

2. [2]
   The Appellant was employed at Greenmount Beach Club ("the Club") in Coolangatta as an apprentice chef from 17 March 2013.  She claims to have suffered a back injury in the course of her employment on 19 April 2013.  On 1 August 2013, the Appellant lodged an Application for Compensation with WorkCover Queensland claiming compensation for "Back-unspecified, muscle/tendon strain (non-traumatic)."  By its decision dated 27 August 2013, WorkCover rejected the Appellant's claim.

3. [3]
   An application for review of that decision was received by the Respondent on 22 November 2013.  By its decision dated 6 January 2014, and sent by letter dated 8 January 2014, the Respondent confirmed the decision of WorkCover to reject the Appellant's application for compensation.  It is against that decision that the Appellant currently appeals.

The legal requirements and onus of proof

4. [4]
   The appeal has to be decided by reference to s 32(1) of the Act, which at the time material to the Appellant's notice of claim for damages, relevantly provided:

  "(1) 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.

  …

  (3) Injury includes the following -

   (a) a disease…;

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

9. (i)
   a personal injury;

    (ii) a disease;

    (iii) a medical condition if the condition becomes a personal injury or disease because of the aggravation; …"

5. [5]
   An injury which arises out of employment occurs where there is a causal connection between the employment and the injury.^[1] 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.^[2]

6. [6]
   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.^[3]

7. [7]
   For employment to be a significant contributing factor to the injury, the employment must be important or of consequence,^[4] and there should be some linkage between the employment and the injury.^[5]

8. [8]
   As Keane JA (as he then was) stated in Newberry v Suncorp Metway Insurance Limited:^[6]

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

…

[41] That having been said, however, I should also observe in passing that the fact that an injury has been suffered arising out of employment, or in the course of employment, is not sufficient to establish that the employment has been "a significant contributing factor to the injury".  To read s. 32 of the WCRA in that way would be to read the latter words out of the section, and in my respectful opinion to accord scant respect to the evident intention of the legislature to require a more substantial connection between employment and injury than is required by the phrases "arising out of employment" or "in the course of employment"."

9. [9]
   The Appellant carries the onus of proving on the balance of probabilities that she has an "injury" within the meaning of the Act.^[7]

10. [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.  The mere possibility of an appellant suffering an injury on mere conjecture is not enough.  Inference must be carefully distinguished from conjecture or speculation.  There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish.^[8]

11. [11]
    While there is room for intuitive reasoning when determining whether a worker has suffered an injury within the meaning of the Act, in the process of determining that question of fact, the Commission cannot substitute speculation for satisfaction on the balance of probabilities.^[9]

12. [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.^[10]

 The issues and conduct of the appeal

13. [13]
    The Respondent did not dispute that the Appellant was a "worker" within the meaning of the Act.

14. [14]
    Given that concession, the Appellant must prove, on the balance of probabilities, that the claim should be accepted because the injury arose out of or in the course of her employment, and that her employment was a significant contributing factor.

15. [15]
    Before assessing the evidence, two preliminary issues have to be considered:

1. (a)
   the alleged cause of the "injury" that is the subject of the appeal; and

2. (b)
   the absence of corroborating witnesses to the event which is alleged to have caused the injury.

16. [16]
    The 'injury': The application for compensation made to WorkCover dated 1 August 2013 (Exhibit 7) stated in paragraphs 17 to 20 that:

1. (a)
   the injury occurred on 19 April 2013;

2. (b)
   the injury did not happen over a period of time;

3. (c)
   the injury was "Back-unspecified, Muscle/tendon strain (non-traumatic);" and

4. (d)
   the injury happened as follows:

"Was carrying 2 rubbish bags down the stairs at work, slipped and fell downstairs and hurt her back.  Since then 2 weeks ago, aggrvated [sic] back injury working in the kitchen carrying boxes."

17. [17]
    As will be apparent later in these reasons, evidence and submissions were focussed on the alleged fall that the Appellant says occurred on 19 April 2013.

18. [18]
    Mr McLean Williams for the Respondent pointed out in his final submissions that no evidence was given in these proceedings (apart from the Workers' Compensation application form and a record by the Appellant's general practitioner of a statement to him from her) that the Appellant aggravated her back injury while working in the kitchen carrying boxes.  In his submission, the absence of relevant evidence of that mechanism of injury means that the aggravation component of her claim falls away.

19. [19]
    Mr Du Plessis for the Appellant did not dispute that submission and presented the Appellant's case by reference only to the incident on 19 April 2013.

20. [20]
    Consequently, the appeal will be determined on the basis that the only injury is that alleged to have occurred on 19 April 2013.  To succeed, the Appellant must prove on the balance of probabilities that the injury arose out of, or in the course of, her employment and that her employment was a significant contributing factor.

21. [21]
    Absence of corroborative witnesses: The Appellant gave evidence about her fall on 19 April 2013 and the consequent injury.  That evidence is summarised and assessed later in these reasons.  It is relevant to note at the outset that the Appellant gave the following evidence:

1. (a)
   Finton Lynch was standing on the ground floor near the entrance to the Club at the time of her fall and, although he did not see the Appellant fall, he turned around and saw her on the bottom part of the stairs.  He asked her if she was okay.  He was having a night at the Club with friends.  By that time of night there was no music and few customers, so it was quiet in the Club.

2. (b)
   Having put the rubbish in the bin, the Appellant proceeded upstairs to the dining area, and spoke to Rebecca Mitchell and Bernadette Edwards about her fall.  According to the Appellant they said that the fall must have been painful and the Appellant said that it was.

3. (c)
   She then spoke to Maryann Leatham, the head chef at the Club at the time, inside the door to the kitchen and told Ms Leatham of the fall downstairs, and that she was in pain, and Ms Leatham smiled and said "Oh, you'll be all right."

4. (d)
   The Appellant thought that there might have been a closed-circuit television ("CCTV") camera near the stairs where she said she fell.

22. [22]
    No evidence was given in these proceedings by Mr Lynch, Ms Mitchell or Ms Edwards.  No CCTV footage was produced to either party or to the Commission.  The reasons for the absence of those witnesses and any CCTV footage can be gleaned from evidence given by the Appellant and Ms Leatham, as well as statements from counsel.

23. [23]
    Mr Lynch was a school teacher who worked part-time at the bar of the restaurant.  He left the work there before December 2013 to travel.  The Appellant tried to contact him by sending a personal message on Facebook, leaving messages at his workplace, and trying to contact him on his mobile phone and by text to ask if he would be a witness.  He did not reply.  Her solicitors tried unsuccessfully to contact Mr Lynch. 

24. [24]
    Ms Mitchell was about 17 or 18 years old at the relevant time.  She worked as a waitress in the restaurant, serving patrons.  She did not work in the kitchen.  She stopped working at the restaurant before Ms Leatham left in December 2013. 

25. [25]
    Ms Edwards worked in the bar and as a waitress at the restaurant.  She was there when Ms Leatham left in December 2013. 

26. [26]
    The Appellant stated that she tried to contact Ms Mitchell and Ms Edwards "but they're not talking to me."

27. [27]
    There was no direct evidence of the existence of CCTV footage of the stairs on April 2013.  Rather:

1. (a)
   Mr McLean Williams stated that the Regulator did not have any CCTV footage in relation to the alleged fall;

2. (b)
   the Appellant said that:

1. she did not know at the time of her fall that there were any cameras in that area and did not see any cameras at that time;

2. she knew that there are some cameras in the Club and subsequently thought there might be a camera at the entrance;

3. she saw a screen in the office of Paul Taylor, the manager of the Club, which had four screens on it with images from cameras including at the stairs at the entrance; and

4. she had not made effort through her solicitors to have any CCTV footage produced from the Club;

3. (c)
   Ms Leatham said that:

1. she had had no knowledge of cameras or CCTV footage on the premises; and

2. she had been into Mr Taylor's office and she did not see any screens on the premises.

In summary, the evidence, such as it was, did not establish whether CCTV footage of the stairs on the evening of 19 April 2013 exists, and hence could have been produced. 

28. [28]
    As it happens, Mr Taylor left the employ of the Club as manager some time in about August 2013 and was not the manager around 12 to 20 August 2013 when issues arose about the Appellant's pay.  He was not called to give evidence.

29. [29]
    In light of the evidence summarised above, and the submissions of counsel, I will proceed on the basis that:

1. (a)
   the potential witnesses could not be contacted or were not willing to give evidence voluntarily in these proceedings;

2. (b)
   no attempt was made to compel Mr Lynch to attend the hearing to give evidence;

3. (c)
   there is no certainty that CCTV footage of the stairs on the evening of 19 April 2013 exists.

I draw no adverse inference in relation to the appeal from the absence of evidence from any or all of those people and the lack of CCTV footage.

The Appellant's case

30. [30]
    The evidence by and on behalf of the Appellant concerned:

1. (a)
   her physical condition before April 2013;

2. (b)
   the nature of her employment and the conditions in which she worked from March 2013;

3. (c)
   the incident that caused her injury; and

4. (d)
   the consequences of the injury and the actions she took to deal with the symptoms before and after the application to WorkCover on 1 August 2013.

31. [31]
    Evidence was given by the Appellant, Peter McLure (the Appellant's husband), Dr Sabu Arunakumaran (the Appellant's general practitioner after the incident) and Tony Ditton (a physiotherapist who treated the Appellant between 8 August and 3 September 2013).

32. [32]
    The Respondent called evidence from Ms Leatham and Mr Vasudeva Pai (a consultant Orthopaedic Surgeon).

33. [33]
    The Appellant's physical condition before April 2013: The Appellant was born on 13 November 1988.  She grew up in Russia where she did aerobics and dancing.  The Appellant suffered no lower back pain but, when being assessed for migration to Australia, the examining doctor told her that she had mild scoliosis in her upper back, and that she probably had it since childhood.

34. [34]
    The Appellant moved to Australia in September 2011 and is an Australian resident.  She is married to Peter McClure, a chef.  The Appellant has university qualifications in marketing, and applied for numerous jobs after she arrived in Australia.

35. [35]
    Nature and conditions of Appellant's employment: On 16 March 2013, the Appellant applied for a job at the Club.  She commenced work as an apprentice chef on 17 March 2013.  Her net income was $375 per week from which she paid $280 per week for rent

36. [36]
    The Appellant's work entailed food preparation, cooking, dishwashing, cleaning, taking out rubbish, making coffee, stocktaking and stock rotation.  The normal roster was a split shift: from 10.00 am to 2.00 pm, and then from 4.30 pm to finish time (between 9.00 and 10.00 pm).  Staff were rostered five days on, and two days off.  The Appellant did not like the split shifts and said that sometimes she did not have a lunch break.  The work was hard and she spent a long time standing up.  The kitchen was hot and often greasy.  Her income was only enough to pay rent and buy food.  Although she was grateful to have a job, she had been looking for other types of work.  According to the Appellant, the head chef often changed the duty roster, and often did so on short notice.  The Appellant often did not take the lunch break, and had to work through it to prepare for the next shift.

37. [37]
    The Appellant said that she was given no Health and Safety induction.  She was not shown any videos or written material, and as far as she can recall, there was nothing said about the reporting of incidents.  She was not aware of the existence of an incident report or the need to complete it when there was an incident at work.

38. [38]
    On 9 April 2013, the Appellant purchased a pair of non-slip shoes which she wore at work (see the photographs of the shoes: Exhibit 1, photos 3 and 4).

39. [39]
    Incident on 19 April 2013: The Appellant remembers Friday 19 April 2013 because, on the previous weekend, the Kirra Run started and the restaurant was exceptionally busy during that period.  On the Wednesday before that date, one of the other apprentices left for her holidays.

40. [40]
    On 19 April 2013, the lunch shift and the dinner shifts were very busy, and there were food scraps all over the kitchen floor.  Towards the end of the Appellant's shift (some time after 9.00 pm), Ms Leatham asked the Appellant to take two large bags of rubbish (each weighing anything up to 10 kg) to the bin which was situated outside the building.

41. [41]
    The Appellant took a bag in each hand, and proceeded down the main stairs, towards the main entrance.  She descended the first flight of stairs to the intermediate landing between the first and ground floors, took the turn and, as she descended the second flight of stairs to the ground floor, her left foot slipped on the metal strip at the edge of a step, and she fell heavily onto her left buttock.  She slid down the flight of stairs almost to the bottom, and ended up at the second last step.

42. [42]
    She ascribes the fall to the food scraps (fried chips etc) that stuck to the soles of her shoes, as well as the two heavy bags of rubbish that she had to carry down the stairs.

43. [43]
    According to the Appellant, Mr Lynch was on the ground floor, on his way out.  He probably heard the fall, because the Appellant saw him turn around.  He saw her on her back at the bottom part of the stairs.  She does not think that he witnessed the actual slip at the top of the flight of stairs.  As noted earlier, Mr Lynch did not give evidence in these proceedings.

44. [44]
    The Appellant felt immediate pain in her hip and left buttock, but picked up the bags, and took the rubbish outside to put in the bin.

45. [45]
    Afterwards, she went upstairs again to collect her belongings.  She passed two waitresses, Ms Mitchell and Ms Edwards, in the dining area and told them that she fell on the stairs.  Neither woman gave evidence in these proceedings.

46. [46]
    The head chef, Ms Leatham, was still in attendance in the kitchen, and the Appellant reported to her that she had fallen down the stairs.  According to the Appellant, Ms Leatham smiled and said "You'll be all right".  She did not tell the Appellant about the need to complete an incident report, nor did she offer to fill out an incident report.

47. [47]
    The Appellant met her husband after work and they walked home.  She said that she told her husband about the fall that same night.  Mr McClure testified that on 19 April the Appellant told him about the fall down the stairs and at their home he saw a large bruise on the left side of her buttocks area.

48. [48]
    The consequence of the injury and actions to deal with it before making the WorkCover application: According to the Appellant, she was rostered to have the following three days off work and was scheduled to work again on Tuesday 23 April 2013.  The pain continued over those three days, but she chose not to seek medical attention immediately.

49. [49]
    The Appellant said that she did not go to a doctor, because:

1. (a)
   she thought the pain would disappear with time;

2. (b)
   she felt embarrassed about the fall; and

3. (c)
   since she had only been employed for approximately one month, and was very grateful to have secured this position, she did not want to jeopardise her job.

She also said that she is the kind of person who leaves everything to the last minute.

50. [50]
    According to the Appellant she returned to work on 23 April 2013.  She did not know how serious the injury was, and thought that it would get better with time.  She did some stretching exercises each morning so that her back would move properly.

51. [51]
    Mr McLure gave evidence that the Appellant was in constant pain and had difficulty in sleeping.  Every morning she would need to stretch a lot and would often cry that she did not want to work.  But she continued to work.

52. [52]
    When the pain continued, the Appellant decided to join a gym on a three-month basis in order to get some guidance in doing the correct exercises to strengthen her core muscles and to get rid of the back pain.  She joined the gym in about mid-May 2013 and sought advice on what exercises to do.  She did training with weights (maximum 5-7 kg), exercised with a gym ball, did exercises on the cross-trainer machine and cardio machine, and did leg presses.

53. [53]
    The back pain gradually increased in intensity, and by the beginning of July she could not bear it any longer.  She telephoned around to find out when she could get the earliest appointment to see a doctor, and found that Dr Sabu Arunakumaran at Kennedy Medical Centre in Tweed Heads was available.

54. [54]
    Dr Arunakumaran saw the Appellant on the morning of 2 July 2013.  He recorded six matters of relevance to this case:

1. (a)
   the Appellant had pain in the right L5 region – described as tender localised pain and for which Mobic was prescribed;

2. (b)
   the back injury was from work two weeks ago (i.e., mid-June), lifting boxes;

3. (c)
   diagnostic imaging was requested: a CT scan of the LS spine;

4. (d)
   the Appellant would benefit from EPC with chiropractor and exercise physiologist;

5. (e)
   the Appellant should stop weight training in the gym; and

6. (f)
   he discussed WorkCover with the Appellant, but she preferred to deal with the matter through Medicare.

55. [55]
    Dr Arunakumaran issued the Appellant with a medical certificate advising her not to do any lifting over 5 kg at work.  This certificate was not addressed to anybody and was given to the Appellant because he was worried that she might further aggravate the injury.

56. [56]
    She gave this certificate to Ms Leatham who agreed that the Appellant should do light duties.  However, the Appellant gave evidence that she continued with her work as before and sometimes she was refused assistance.

57. [57]
    The Appellant explained that she did not know how WorkCover works, but did know about Medicare and preferred that option.  She was also concerned that if she went on to WorkCover she would be put off work or would not be paid while on a medical certificate.  At that stage, her husband had lost his job and she was the only one earning income. Dr Arunakumaran confirmed that the Appellant declined putting in a WorkCover claim because she was worried that she would not be supported at work. 

58. [58]
    The CT of the Lumbosacral spine on 2 July 2013 showed:

"Mild scoliosis at L4 convex to the left.  No vertebral listhesis.  Normal body heights and disc spaces.  No significant facet joint bony hypertrophy.  No significant exit foraminal stenosis.

Minor disc bulge at L4/5, insignificant canal stenosis.

L5/S1 minor disc bulge contacting descending S1 nerve roots (right appears larger).

CONCLUSION:

Only minor disc bulging is present in the lower lumber spine, contacting descending S1 nerve roots.  Pain in right L5 distribution is not explained."

59. [59]
    On Monday 8 July 2013, Dr Arunakumaran saw the Appellant again, together with (at his request) her husband, and notified them of the scan results.  The notes of that consultation refer to low back pain, neck pain, scoliosis and prolapsed disk L4/L5; and to the Appellant having a very hectic job as chef with "lots of physical work."  She was given advice in relation to her posture and a note for work.  She was also given advice about posture and exercises in the gym.  Dr Arunakumaran referred the Appellant to Ms Liza Roberts, a physiotherapist.  He noted that he would refer the Appellant if she is not better with physiotherapy.

60. [60]
    Dr Arunakumaran also provided supportive counselling.  He noted that the Appellant and her husband were going through a rough patch in their marriage.  The Appellant was feeling "quite low and upset" and her husband was depressed and unemployed.  Financially things had been "very hard" for the couple.

61. [61]
    Although Dr Arunakumaran referred the Appellant to Liza Roberts on 8 July 2013, the Appellant was not treated by her.  It appears that, despite repeated attempts to find a suitable time or times for consultation, mutually suitable appointment times could not be found.  The physiotherapist changed location from Coolangatta to Tugun, and was busy.  The Appellant left messages on an answering machine nominating when she was available, and she would receive replies by text message.  One text message from Ms Roberts, dated 24 July 2013, was read to the Commission.  Ms Roberts offered an appointment on 26 July at 12.45 pm, or 30 July at 1.15 pm or 2 August at 2.45 pm. The Appellant could only attend during her lunch breaks and did not have her own transport so could not drive to the physiotherapist.  It was difficult to get a day off work for the appointments. 

62. [62]
    Although the Appellant's three month gym membership expired in mid-August 2013, she felt that the gym exercises did not benefit her, and since the back pain progressively got worse, she stopped going to the gym in approximately mid-July 2013.

63. [63]
    In the morning of Wednesday 31 July 2013, the Appellant went back to Dr Arunakumaran, as she recalls, to change the referral to a different physiotherapist, Troy Ditton at Tweed Coast Physio.  Dr Arunakumaran could not remember this referral, but there was evidence that the referral came from him.  Mr Ditton's patient notes (Exhibit 5) record that the Appellant received treatment from him on 8, 13, 16 and 23 August 2013 and 3 September 2013.

64. [64]
    According to Dr Arunakumaran's notes of 31 July, the focus of the consultation was on mental health issues.  He recorded the Appellant as suffering from depression as she was struggling with life, marriage, work and financial stressors.  He prescribed medication and created a mental health plan and a GP Management Plan.  He could not recall and did not note any complaints of pain on that day.

65. [65]
    The Appellant gave evidence that on the following day, Thursday 1 August 2013, she "got the worst pain that I have ever experienced" and she could not walk.  Her husband tried to help her to dress and helped her walk to work so that she could let the head chef know that she was not sure if she could work that day.  By the Appellant's account, corroborated by her husband, Ms Leatham was angry and wanted something in writing to indicate that she would not work.   

66. [66]
    The Appellant also spoke to Mr Taylor at the Club that day.  He observed her injury.  She said that her back was hurting and she could not walk.  She told him that she fell downstairs in April.  He suggested that she hurt her back at the gym.  She denied that.

67. [67]
    As the Appellant was walking to the doctor's surgery with her husband, Ms Leatham rang and told the Appellant that she should have gone to a physiotherapist before then, and said she felt sorry for her.

68. [68]
    Dr Arunakumaran stated that it was in the course of the consultation on 1 August 2013 that the Appellant told him of the alleged fall on 19 April.  He was preparing a workers' compensation medical certificate and, having gathered from her that there had been the "few recent events that have happened at work that have contributed to" her injury, he asked her what was the date of her initial injury.  The Appellant nominated 19 April 2013.  Dr Arunakumaran agreed that this was the first reference in any documentation emanating from him that referred to the fall on the stairs and the only time when his medical notes record that mechanism of injury.

69. [69]
    Dr Arunakumaran issued a medical certificate which stated that the Appellant was suffering from "Back injury" and she stated that the date of the injury was 19 April 2013.  The Appellant's stated cause of injury was:

"carrying 2 rubbish bags down the stairs at work, slipped and fell downstairs and hurt her back.  Since then 2 weeks ago, aggravated back injury working in the kitchen carrying boxes."  (Exhibit 3)

70. [70]
    The medical certificate records that her injury is consistent with her description of its cause, there were no pre-existing factors or conditions aggravated by the event, and that Appellant had no capacity for any type of work from 1 to 5 August 2013.  The Appellant would require treatment from 1 to 8 August 2013.  That treatment was to comprise physiotherapy (provided by Troy Ditton), analgesic and rest.  He prescribed valium tablets and Panadeine Forte tablets, and advised a review in one week.

71. [71]
    The unsigned application for compensation to WorkCover Queensland dated 1 August 2013 (Exhibit 7) was apparently completed by Dr Arunakumaran.  It nominated the date of injury as 19 April 2013 and described the injury happening in the following terms:

"Was carrying 2 rubbish bags down the stairs at work, slipped and fell downstairs and hurt her back.  Since then 2 weeks ago, aggrvated (sic) back injury working in the kitchen carrying boxes."

According to the answer to Question 23 on the application, the Appellant did not advise her employer about her injury.

72. [72]
    The Appellant was on leave from 1 August 2013 and did not return to work.

73. [73]
    The consequence of the injury and actions to deal with it after the WorkCover claim: On 7 August 2013, Dr Arunakumaran saw the Appellant and his clinical notes of that consultation record:

“Her WC claim, I am told is under dispute as employer alleges this was not an injury at work.  I have been seeing her over the past 1 month with gradually worsening back, aggravated by work and I have been encouraging her to take time off/ go on altered/ modified duties as work involves a lot of strain on her back.  …  She has been in pain due to lifting boxes at work.  This has progressed despite her not going into gym.  …  Her back was bad enough for her not to be able to walk without a limp when she finally agreed to take time off work under workcover."

74. [74]
    The Appellant was upset and emotional.  She felt that her employer was very unsupportive, and made her cry on the phone.  Dr Arunakumaran provided supportive counselling, advised her against further contact with her employer and advised a review in one week.

75. [75]
    On 14 August 2013, Dr Arunakumaran saw the Appellant again and he wrote:

“I have been seeing her over the past 1 month with gradually worsening back pain, which I believe has been aggravated and caused through work.  She described pain while having to lifting [sic] boxes, rubbish bags and heavy pots that weigh over 20 kgs.  I have been encouraging her to take time off/ go on altered/ modified duties as work involves a lot of strain on her back.  She however, was worried that she would not be supported to take time off and hence continued to work until the 1st of August when she went into work with a painful limp and was advised to seek a medical opinion.  She is currently seeing a physiotherapist for the pain."

76. [76]
    Again Dr Arunakumaran gave supportive counselling.  He also issued a medical certificate and suggested review in one week after WorkCover assessment by orthopaedic surgeon.

77. [77]
    Two further medical certificates were issued stating that the Appellant had no capacity for any type of work from 1 to 20 August 2013 and then from 1 to 25 August 2013 (Exhibit 3).  The first certificate was undated and the second was dated 14 August 2013.  The diagnosis and worker's stated cause of injury were identical on all three medical certificates.  However, the second and third certificates included further information as follows:

"I have been seeing her about her back for a month.  She has been in pain due to lifting boxes at work.  This has progressed despite her not going into gym.  I am quite convinced that this is a legitimate and appropriate claim under workcover.  Her back was bad enough for her not to be able to walk without a limp when she finally agreed to take time off work under workcover."

78. [78]
    Dr Arunakumaran saw the Appellant on 19 August 2013 and noted the Appellant had "Back pain, still sore and tender".  She was depressed, emotional and upset about a range of matters including work.  Supportive counselling was given.

79. [79]
    The Appellant also saw Mr Pai on 19 August 2013 on referral from WorkCover.

80. [80]
    The Appellant saw Dr Arunakumaran on 26 August 2013 for a review.  It seems that there had been some improvement in her condition as Dr Arunakumaran noted "She is better, back is still sore, doing specific exercises under physio direction."  More supportive counselling was done.

 Ms Leatham's account

81. [81]
    In the absence of other witnesses to corroborate the Appellant's account, the Respondent placed some emphasis on the recollections of Ms Leatham.  As the head chef at the Club at the relevant time, Ms Leatham was responsible for about seven kitchen staff (apprentices and chefs).

82. [82]
    Ms Leatham said that the Appellant started at the Club without any background in food kitchen work, but that was of no concern to her as the Appellant was taken on as an apprentice chef and would be trained in the full range of commercial kitchen duties.  She described the Appellant as a "smart young lady," who is "very capable" and "learns fast."  The work was within the Appellant's ability and it was her choice whether she wished to succeed and excel.  However, according to Ms Leatham, the Appellant was unhappy due to her financial and personal circumstances and needed "a lot of encouragement and support."

83. [83]
    Ms Leatham's evidence was, in summary, as follows:

1. (a)
   When the Appellant commenced work at the Club in March 2013 she would have been given an oral induction, including advice to wear non-slip shoes.  She would have been taught how to behave in the kitchen, including when people are moving around with hot items and knives.  Ms Leatham stated that she made sure that all her team were aware of the safety requirements and responsibilities, and that the "induction for our kitchen never stops.  It's just ongoing."  However, there was no paperwork as part of the induction, and Ms Leatham stated that employees were not given any induction and that was one of the employer's "shortcomings" and "one of the biggest frustrations" for her.

2. (b)
   Because the Appellant did not have money for a uniform, Ms Leatham said she could wear black and would be given an apron and hat until she was in a position to purchase something. 

3. (c)
   On a big day towards the end of a shift there would be food scraps on the kitchen floor, and it is possible to slip even wearing non-slip sole shoes.

4. (d)
   The removal of rubbish is one of the last tasks to be performed at the end of the night shift.  There is a policy at the Club that, because that side of the building was dark, two people would take out the rubbish together so that one chef would see the other going down the stairs.  The head chef did not direct who took out the rubbish, but would call out "rubbish."  The chefs take their own initiative in deciding who takes the rubbish. 

5. (e)
   Ms Leatham did not recall being told by the Appellant of the fall on 19 April 2013, either on that date or subsequently.  Ms Leatham said she would not have responded in the way suggested by the Appellant but would have taken the information seriously and noted it in the incident book and would have checked the Appellant the next day.

6. (f)
   Ms Leatham was not told by any other members of staff at the Club about a fall that the Appellant had on the steps.

7. (g)
   Ms Leatham was the person responsible for adjusting shifts and asking people to work late, but did not hire or fire people without the involvement of the manager.

8. (h)
   The Appellant would have returned to work on Friday 20 April 2013.  Staff were on seven-day rosters with two days off, and three days once their apprenticeship program started.  No one was given three days leave in one slot at that time.  The Appellant would not have been given three days until about July nearer her apprenticeship program.  Ms Leatham would not have given apprentices weekends off because they needed training.

9. (i)
   The Appellant usually had her allotted break between shifts, although she occasionally (perhaps on five or six occasions) stayed longer during the lunch break to ensure that everything was ready for the next shift.  Even when some new staff needed to stay over during the break, they always had at least one hour's break and were given time in lieu (usually at the end of the day) if they worked those longer hours.

10. (j)
    The Appellant showed no signs of any impairment or difficulty caused by back pain in April.  She was able to perform the full range of her duties and would leave work in her gym outfit on most lunchtimes.  There was nothing in the Appellant's physical appearance or demeanour that suggested any kind of difficulty with an injury in May or June 2013.

11. (k)
    Just before July, the Appellant was "falling apart emotionally" and that was affecting her work and other chefs.  Ms Leatham spoke with her about personal and financial difficulties.

12. (l)
    Ms Leatham noticed that the Appellant was "suffering" for most of July.  She was rubbing her back and walking awkwardly in the kitchen.  That was affecting the Appellant's ability to work and affecting other chefs who had to support her.  Ms Leatham addressed the issue because the Appellant had not dealt with it by going to the doctor.  According to Ms Leatham, "It took three weeks of her [the Appellant] being in pain … Before she actually did something about it."  She urged the Appellant to see a doctor, which she eventually did and brought a light duties certificate from the doctor sometime in July.  Ms Leatham thought that the main restriction was not to lift beyond 30 kg (though she conceded it could have been a lesser amount).  She adjusted the Appellant's duties accordingly, and the team was informed that the Appellant was not to lift (e.g. not to take rubbish out, or carry delivered items such as boxes of French fries, bags of flour or sacks of vegetables) or stretch.  The Appellant was put in the easiest section of the kitchen in July (where her work involved making salads, and salad and vegetable preparation).  The Appellant needed to ensure that she did not do things that were beyond light duties.

13. (m)
    Ms Leatham was concerned that the Appellant was still going to the gym even after the doctor had told her not to do certain things until she had three sessions with the chiropractor or physiotherapist.  The Appellant was not quick in making those appointments and Ms Leatham had no proof that she did, even though she encouraged the Appellant to attend.  The Appellant informed Ms Leatham by text message that she couldn't get appointments.

14. (n)
    Ms Leatham recalled the conversation with the Appellant on 1 August 2013 and that the Appellant "could hardly walk."  She did not swear at the Appellant, but was upset that "it had got to that stage" and she wanted the Appellant to get a medical certificate to prove that she was not able to work.  She also spoke to the Appellant's husband who, she said, agreed with her that it was a shame that things had got to this serious stage unnecessarily because the Appellant had not taken up the appointments arranged for her previously.  (The Appellant denied such a conversation occurred.)  Ms Leatham did not recall ringing the Appellant on the way to the doctor, but may have done so.  If so, "everything was said with support, not with criticism," or sarcasm, but the "situation was frustrating because it had been neglected."  Ms Leatham referred to text messages from her to the Appellant in which apparently she stated that she wished the Appellant had dealt with the matter sooner for her benefit and for the benefit of the team.

15. (o)
    In the first week of August 2013, when she was informed that the doctor had given the Appellant one week off work, Ms Leatham first became aware that the Appellant was claiming that her injury was caused on 19 April 2013.

16. (p)
    Ms Leatham provided a written statement to Mr Taylor (Exhibit 6) at his request in response to the work cover application.

17. (q)
    Ms Leatham thought that the Appellant resigned and was not dismissed.

84. [84]
    That evidence was different in some respects from the evidence of the Appellant and consistent with other parts of the Appellant's evidence.  When assessing the differences it is appropriate to note that some are differences of perspective or differences of recollection and to bear in mind that there was some friction between the Appellant and Ms Leatham.  That friction was recorded by Mr Pai in late August 2013 and he considered that it posed a barrier to the Appellant returning to work.  One significant difference is that Ms Leatham stated that she could not recall being told about the Appellant's fall on 19 April, and was not informed of it until early August 2013.

85. [85]
    For the purpose of this appeal, I note that Ms Leatham's statement sent by email to Mr Taylor on 3 August 2013 (Exhibit 6) is consistent with her oral evidence to the Commission.  Although she wrote that she had "no official position" on the Appellant's eligibility for workers' compensation, Ms Leatham raised some concerns about the Appellant's claim for compensation by reference to the "gap between the original incident date and her complaints of back pain."  Although the views expressed in the email might have been honestly held, they were shown to be incorrect in some respects.

Medical evidence

86. [86]
    As noted earlier, opinion evidence was given by Dr Arunakumaran and Mr Pai.  Their evidence is significant in relation to:

1. (a)
   the nature of the physical injury; and

2. (b)
   the likely cause of the injury.

Their assessment about the likely cause of the injury was based on information from a range of sources including the history provided by the Appellant, the CT scan, and their individual examinations and interviews of the Appellant.

87. [87]
    Nature of the injury: Dr Arunakumaran diagnosed the Appellant as having a back injury, recorded in the application for compensation as "Back-unspecified, Muscle/tendon strain (non-traumatic)."

88. [88]
    When Mr Pai examined the Appellant on 26 August 2013, he recorded among other things that the Appellant:

1. (a)
   walked with a normal gait, appeared comfortable sitting and was at ease in getting out of the chair and getting on and off the examination couch;

2. (b)
   had a full range of movement, no radiculopathy and no paraspinal spasm;

3. (c)
   did not report pain in her back on pressing her shoulders or her head;

4. (d)
   had good lumbar spine posture and good lumbar lordosis;

5. (e)
   had no localised tenderness but said that the pain she gets was deep inside on activity;

6. (f)
   displayed a range of movement in the spine (noting that she said she had pain extending beyond 30°);

7. (g)
   had a full range of normal movement in her hips, knees and ankles.

89. [89]
    Mr Pai referred to the CT scan of the lumbar spine as showing "Some minor disc bulge but there is no stenosis or listhesis or nerve root compromise."  He described this as "essentially normal" and "fairly normal for her age."

90. [90]
    Mr Pai diagnosed "lumbar strain" and reported that the Appellant stated that her overall pain appeared to be limited to the lower lumbar region.  It could range from a dull aching to sharp in nature, and was not present all the time but "comes and goes."  She sometimes experienced "very transient high level back pain that lasts only for a few seconds" when she was walking but could still walk for more than an hour and could sit on a firm chair for more than half an hour.  She normally slept on her side and experienced problems in getting into a comfortable position, but once she got to sleep was able to sleep well.  About once or twice a week she awoke with pain. 

91. [91]
    At that time the Appellant was not taking any medication and stated that she did not like taking medication.

92. [92]
    In summary, Mr Pai wrote:

"On my clinical assessment today she has no spasm in the lumbar spine, she has excellent range of movement is recorded and is neurologically intact.  There is no evidence of nerve root irritation."

93. [93]
    History of injury:  Dr Arunakumaran first saw the Appellant on 2 July 2013.  She presented with low back pain localised to her lower back.

94. [94]
    Dr Arunakumaran gave evidence that he relied on what he was told by the Appellant for his understanding of the mechanism of the injury, and that he made notes of what he was told to assist him in maintaining a clinical record and developing a case plan to help him manage the condition.  His consultation records state that her back injury was from work "2 weeks ago, lifting boxes."  (Exhibit 4)  In his oral evidence he said that the Appellant presented with an alleged back injury from two weeks previously, and she claimed that she was lifting boxes in the kitchen where she worked as an apprentice chef and that she experienced pain then.  As a consequence, he organised a CT scan.  The Appellant's alleged fall on 19 April was not discussed at that point. 

95. [95]
    The Appellant agreed that she told and Dr Arunakumaran that she lifted boxes at work because "it's the job, that's what we have to do, lifting all the time, everything."  However, she disputed telling him that she was injured lifting boxes, ("I didn't say that I got an injury from lifting boxes" or that that that was the same injury two weeks before July.  According to the Appellant, she told him about her fall at work on 19 April 2013.  She could not explain why his notes did not record that.

96. [96]
    Dr Arunakumaran recalled that on 1 August 2013 the Appellant told him that she hurt her back at work again and she reported that she had aggravated her back at work again.  It appeared to him to be "an aggravation of a recent injury."  He also stated that during the period through July to the beginning of August there was no period when the Appellant did not suffer from back pain. 

97. [97]
    As noted earlier, it was in the course of this consultation that the Appellant told him of the alleged fall on 19 April.  He was preparing a workers' compensation medical certificate and, having gathered from her that there had been the "few recent events that have happened at work that have contributed to" her injury, he asked her what was the date of her initial injury.  The Appellant nominated 19 April 2013.  Dr Arunakumaran agreed that this was the first reference in any documentation emanating from him that referred to the fall on the stairs and the only time when his medical notes record that mechanism of injury.  However, he acknowledged in cross-examination that it is possible that the Appellant had mentioned her fall of 19 April on an earlier occasion (e.g. 2 July 2013) and he did not make a note of it.

98. [98]
    Having interviewed and examined the Appellant on 26 August 2013, Mr Pai recorded her account of the "injury event."  The key points in his report are that:

1. (a)
   the Appellant reported slipping and falling on steps while carrying two garbage bags on 19 April 2013;

2. (b)
   having had three days off work on a rostered break and having taken things quietly, the Appellant returned to work;

3. (c)
   at that stage the pain was not bad enough for her to see a doctor and she thought her pain would go away;

4. (d)
   she continued working and was able to do her normal work in April, May and June;

5. (e)
   she had some back ache but she worked without medication by keeping herself fit and doing some stretching exercises;

6. (f)
   on 2 July 2013, the Appellant saw a doctor and was given a medical certificate for lighter work, and she had been doing lighter work lifting only 5 kg since that date;

7. (g)
   on 31 July 2013, when she got up at home, she had increasing pain in the low back which was "not related to any injury event and was spontaneous in onset;"

8. (h)
   she saw the same doctor after this "acute episode"

99. [99]
    In summary, Mr Pai wrote:

"On my history taking today, according to her that there was only one injury event when she fell down from the stairs.  However following this fall she could still manage to continue doing fulltime work and also joined the gym and managed her gym exercises.  Following her acute aggravation which was spontaneous in onset on 31 July, she had acute back pain for a few days.  Currently she reports some minor aches in her lumbar spine."

100. [100]
     Mr Pai described his process of assessing a patient and taking their history.  He said that he spends about 30 to 40 minutes gathering as much information as he can by asking direct questions.  He types notes onto his computer and dictates in front of the patient about their history to make sure that his comprehension is correct.  He asks them to correct him.  He then makes a clinical assessment of the patient by examining them.  After they have left, he gives his opinion and answers any questions that he has been asked.

101. [101]
     There was an issue about the reference in his report to the Appellant having a sharp onset of pain at home on 31 July 2013.  When giving her oral evidence, the Appellant could not recall any thing that happened on that day, which was her day off work.  She went to Dr Arunakumaran to change her physiotherapy appointment.  As noted earlier, when she saw Dr Arunakumaran on that day he recorded no particular complaints of pain.  The Appellant stated that she did not say anything to Mr Pai about a sudden onset of pain on 31 July, and that he did not tape record that statement during her consultation with him on 19 August 2013.  However, Mr Pai recalled the Appellant saying that she was at home and when she got off the bed she had spontaneous pain.

102. [102]
     Having regard to the evidence as a whole, I am satisfied that the sudden onset of pain was probably on 1 August 2013 rather than 31 July 2013.

103. [103]
     As noted earlier, 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.  To the extent that there are differences between the accounts recorded in the doctors' records and the evidence of the Appellant, I prefer the evidence of the doctors.  There is no reason to doubt that they relied on the Appellant for the history of events and descriptions of her symptoms, particularly the extent of her pain, and would have recorded what the Appellant told them at that time.  It is unlikely that, had he been told of her fall before 1 August 2013, Dr Arunakumaran would have failed to note it.

104. [104]
     Cause of injury:  Dr Arunakumaran gave evidence that the minor disc bulge shown on the CT scan would be consistent with a fall from the stairs and from carrying or lifting boxes, but would also be consistent with other things such as an injury sustained in a gymnasium or falling off a chair or performing heavy manual labour at home.  The disc bulge could be the result of an acute event or could be a gradual process over time, possibly years (e.g. as a result of poor posture).  The bulge could cause pain in the lower back region.  He agreed that the CT scan report was fairly unremarkable in the sense that minor bulges of this type are not uncommon in adults and the scan did not suggest any pervasive pathology of real concern.

105. [105]
     In his written report Mr Pai expressed the opinion that "it is more than likely in the workplace event, she had lumbar strain and to start with, minimal pain.  She had a spontaneous onset of aggravation on 31 July which lasted only for a few days."  He continued:

"On the basis of this history taking, in my opinion, it is more than likely the stated event of injury did not cause significant structural damage to her back.  It appears she had an aggravation at home on 31 July 2013 which caused increasing back pain which is the time she states that she again reported to the head chef.  She has not been working since.  In my opinion, it is not possible to link her aggravation of 31 July 2013 to the injury event of April 2013 as she was lifting heavy weights at the gym to keep up her fitness and was able to continue working."

106. [106]
     In his oral evidence, Mr Pai recalled his assessment of the Appellant and noted particularly that she had an "excellent range of movement" including being able to reach almost to the floor when bending forward.  That meant that there was no nerve root irritation at that date and, in his opinion, there was no indication that she had S1 root irritation prior to that.

107. [107]
     Mr Pai gave oral evidence that the minor bulge indicated on the CT scan was of a type that is relatively common in the normal adult population, and these changes can be seen earlier than age 20.  There is no necessary correlation between the CT scan findings and the clinical situation.  The scan helps to localise the site, but the diagnosis is not done on the basis of that scan.

108. [108]
     Mr Pai accepted that the Appellant sustained an injury having fallen on the stairs, but noted that she continued working and started doing more activity by going to the gym.  Usually the pain gets much worse after such an injury and the person is very stiff and may not be able to get out of bed.  They might see a doctor after two days but the pain usually gets better after some days.  The Appellant, however, kept working and doing gym work and did not see a doctor until 2 July, more than two months after her first injury.  The acute pain started on 31 July.  That was difficult to explain purely on the basis of the fall on the stairs.  Mr Pai accepted that the Appellant was in pain while she continued to work and attend the gym in April, May and June.  But he noted that many people still work with pain.  If something shows up in about three months it is more than likely not related to the injury.

109. [109]
     In his opinion, the Appellant's fall on 19 April was not a significant contributing factor to her presentation to Dr Arunakumaran on 2 July 2013 because, in summary:

1. (a)
   if the fall was significant, why was it not reported to the Appellant's supervisor or someone at the workplace?

2. (b)
   the Appellant returned to work the day after the fall which suggests there was no serious structural damage to her;

3. (c)
   the Appellant went to the gym and could manage that for two to three months; and

4. (d)
   if the injury was significant on 1 August 2013, why does it not appear on the report of the doctor on 2 July 2013?

110. [110]
     Mr Ditton's patient notes for the Appellant's first attendance record that she told him that she suffered lower back pain since tripping down the stairs taking rubbish out at work on 19 April 2013, but also state "Did return to work but has re-agg'd."  The notes record the various forms of physiotherapy and the Appellant's progress.

111. [111]
     Mr Ditton's evidence does not assist in establishing the cause of the Appellant's injury.  He agreed that he accepted the Appellant's explanation that she slipped down stairs, and his job was to help her overcome her problems. When asked whether her injury was consistent with a fall down the stairs he replied "It's possible," and he agreed that the low back symptoms that he was treating are common in physiotherapy practice and could be caused by a range of factors other than a fall down stairs. 

112. [112]
     In summary, the medical evidence was that:

1. (a)
   the Appellant suffered from lower back pain which was variously diagnosed as "lumbar strain" or "back – unspecified, muscle/tendon strain (non-traumatic)";

2. (b)
   although the CT scan disclosed a minor disc bulge, neither doctor sought to describe the Appellant's injury by reference to the bulge at L4/L5;

3. (c)
   such a disc bulge is not uncommon in adults;

4. (d)
   although the disc bulge is consistent with a fall, it is also consistent with other things (e.g. lifting boxes or other heavy manual labour including at a gymnasium) and could be the result of a gradual process over some years; and

5. (e)
   neither doctor expressed the opinion that the Appellant's fall caused the disc bulge.

Evidence about other matters

113. [113]
     There was both oral and written evidence in relation to other issues that might be relevant to this appeal, in particular the Appellant's attendance at a gymnasium in May, June and July 2013, and some marital or family issues.

114. [114]
     Gymnasium activities:  Both parties referred to, and placed some emphasis on, the Appellant's attendance at a gymnasium in the period after her alleged fall. 

115. [115]
     The Appellant gave oral evidence that before coming to Australia, she did dancing and aerobics.  She joined a gym at the start of 2012 for recreation, and did some cardio exercises.  She attended about three times a week, although not regularly.

116. [116]
     For the purpose of this appeal it is important to note that the Appellant said she joined the Future Reflections gym in mid-May 2013 with the thought that exercise there would help to strengthen her core muscles and support her spine and in the hope that the pain would go away.  She sought advice from staff at the gym about what to do, as they had experience with training elderly people and people after accidents.  They told her not to do any heavy lifting and to avoid treadmills and stair mills and to use the cross-trainer and the cardio machine.  They showed her the right technique for some of the exercises (such as the squat).  She followed their advice.  Her exercise included cross-training, use of a cardio machine, training with a big gym ball, leg presses and the use of weights up to 7 kg.  On 2 July 2013, Dr Arunakumaran advised the Appellant not to lift any heavy weights, but she said that she did not lift heavy weights at the gym.

117. [117]
     Sometimes the Appellant attended the gym in the period between the lunch shift and the dinner shift.  After she started her gym exercises the pain did not go away but became worse.  Her attendance at the gym became less frequent and she stopped going in about mid-July because the pain in her back "just didn't let me do it."  Dr Arunakumaran gave evidence that by early July the Appellant had stopped training at the gym because it was getting more difficult due to pain.  She did not renew her membership of the gym because she was in pain and she could not afford further membership.  The gym closed in about February 2014.

118. [118]
     In cross-examination, the Appellant agreed that it would have been prudent to be examined by a doctor before commencing an exercise program and that there was a risk that by going to the gym she would have made her pain worse.  She said that she was in pain every morning.

119. [119]
     Ms Leatham gave evidence that the Appellant attended the gym "regularly."  As Ms Leatham did not go to the gym, she could not say with certainty how often the Appellant went to the gym during her break (rather than meeting her husband), and she did not see the Appellant doing exercises.  However, she said that she heard the Appellant share gym stories with other chefs in the kitchen.

120. [120]
     Dr Arunakumaran's consultation notes include some entries in relation to the Appellant's gym activities and his advice to her about that.

121. [121]
     In his report dated 26 August 2013, Mr Pai wrote:

"She joined the gym in May to keep up her fitness and was doing exercises on a treadmill, cross-trainer, lifting exercises and leg curls.  She had taken a membership for three months and she continued her exercises in May, June and July.  She said she stopped going to the gym when the membership expired.

…

I note documents from other workers with a fewer written statements indicating that her fall happened in the gym.  I again discussed this with her and she insists that the fall was at the workplace.  …

She states that she continued working and had some backache and she worked without medication, by keeping herself fit and doing some stretching exercises and she was able to do her normal work in April, May and June.

…

Initially she did not receive treatment until 2 July 2013 and she was trying to keep her fitness, going to the gym.

…

[S]he was able to do high level gym work for 3 months after the fall…  [S]he was lifting heavy weights at the gym to keep her fitness…"

122. [122]
     Having described a range of physical activities that the Appellant was doing around the time he interviewed and examined her, Mr Pai noted that her hobbies were "keeping fit but she said she cannot afford gym membership because of financial reasons."  (Exhibit 2)  In cross-examination, Mr Pai indicated that he was not saying that the Appellant did not have pain while she continued working and going to the gym.  He said that many people work with pain.  However, he did not know where the Appellant's pain came from or what structure gave rise to the pain at that time.  When he examined the Appellant, she had no pain.  In his opinion, the fact that the Appellant could manage to exercise at the gym for two to three months indicated (alongside other factors) that the fall on 19 April did not cause significant structural damage to her back.  He was unable to specify how heavy the weights were that the Appellant was lifting at the gym.  He agreed that 10 or 20 kg would be heavy, but also volunteered that 5 kg "is quite heavy."

123. [123]
     When forwarding her written statement to Mr Taylor about the Appellant's workers' compensation claim, Ms Leatham stated that "Carl" had informed her that the Appellant told him that "she lifted too heavy at the gym Resulting in back pain."  (Exhibit 6) Apparently Carl was also an apprentice chef at the Club.  He was not called to give evidence.  For that reason, and because the Appellant denies using weights above 7 kg, I do not rely on that statement in Exhibit 6.

124. [124]
     In his final submissions, Mr McLean Williams seemed to suggest (although he did not press the point) that the Appellant's injury might have been as a result of her weight lifting activities at the gymnasium, particularly as there is an inference that the signs to others of a disability are not until some months after 19 April and one thing that is constant throughout that period was the Appellant's attendance at the gym.  Mr McLean Williams also criticised the Appellant for not providing evidence from the gym (e.g. by way of attendance records and recollections of trainers or fitness instructors about what the Appellant told them).

125. [125]
     On the basis of that evidence, I am not satisfied that the gym activity caused the Appellant's injury, but consider that it might have aggravated a previous injury or condition.

126. [126]
     Family issues: As noted earlier, Dr Arunakumaran's consultation notes include some entries in relation to marital and financial problems and mental health issues.  He provided counselling.

127. [127]
     The Appellant acknowledged that she and her husband were having some marriage difficulties at the time, and that she received some counselling or advice from Dr Arunakumaran, but she said "there was nothing really serious" and denied that he was physically abusive.

128. [128]
     The Appellant's husband lost his job in May 2013.She was worried about their finances and apparently they argued about his employment options. 

129. [129]
     In his report dated 26 August 2013, Mr Pai did not refer to those matters but noted that the Appellant's husband had just started working as an Asian cook.

130. [130]
     I am satisfied that the Appellant's physical symptoms were not caused by her domestic circumstances.

Consideration and conclusion

131. [131]
     The Appellant carries the onus of proving on the balance of probabilities that she has an "injury" within the meaning of s 32 of the Act.  The evidence in support of her case is not strong.  Apart from her account of the fall on 19 April 2013, there is no contemporaneous corroborating account other than that of her husband that she told him of the incident and he saw a large bruise on her buttock that evening.  There was no incident report, and there is no eyewitness account in evidence.  Furthermore, there is no other written record of the Appellant recounting the incident to a doctor or other person before 1 August 2013.

132. [132]
     In support of her case, counsel for the Appellant relied on the decision in Dinca v Simon Blackwood (Workers' Compensation Regulator)^[11] in which the Commission accepted that appellant's injury was work-related even though she had not reported that at the time she sought medical attention, as she did not want to get her employer involved since it was her intention to return to work as quickly as possible.  That case is distinguishable on the facts from this case, including because the Appellant has never suggested to a doctor that her injury was other than work-related.  Nonetheless, I am willing to accept that the Appellant fell on the stairs on 19 April 2013 in the way she described.

133. [133]
     That does not mean her claim succeeds.  Having regard to her evidence and the medical evidence, I make the following findings:

1. (a)
   as a result of the fall on 19 April 2013, the Appellant felt some pain and suffered bruising but did not suffer an injury to her spine;

2. (b)
   the pain at that time and in the succeeding 2 ½ months did not prevent her from carrying out her duties at work, or commencing and continuing a range of exercises at the gymnasium;

3. (c)
   the exercises at the gym, whatever their purpose, did not serve to relieve her symptoms but may have aggravated them (indeed the Appellant's evidence was that the pain did not go away but became worse, and she stopped going to the gym about mid-July because the pain in her back did not let her do it);

4. (d)
   her pain became sufficient for her to seek medical attention in early July 2013;

5. (e)
   at that time, she reported to her doctor that she had injured herself lifting boxes at work;

6. (f)
   apart from her evidence that lifting boxes was part of her duties as an apprentice chef (which evidence was effectively confirmed by Ms Leatham), there was no evidence of a specific event involving lifting boxes that might have caused an injury or the aggravation of a previous injury, or even a significant increase in the Appellant's back pain;

7. (g)
   the Appellant experienced a significant increase in pain on or by 1 August  2013, the day after she had a day off work and was at home, and that pain was experienced when she got out of bed at home;

8. (h)
   there is no medical evidence to link the pain she experienced in late July and early August to the fall on 19 April 2013, indeed Mr Pai expressed the opinion that there was no such link;

9. (i)
   the injury which she suffered, which was evident in July and August 2013, was either not caused by the fall on 19 April 2013 or was an aggravation of that injury; and

10. (j)
    it is not clear whether that aggravation was work related.

134. [134]
     Having regard to all the evidence, I conclude that the Appellant has not shown that she suffered a personal injury on 19 April 2013 that arose out of, or in the course of, her employment or that her employment was a significant contributing factor to the injury.  Consequently I conclude that the Appellant did not suffer a physical injury of the type referred to in s 32(1) of the Act. 

135. [135]
     Accordingly:

1. (a)
   the appeal is dismissed;

2. (b)
   the decision of the Workers' Compensation Regulator dated 6 January 2013 is confirmed; and

3. (c)
   the Appellant is to pay the Respondent's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.