Wilkinson v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 62
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- Wilkinson v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 62
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Wilkinson v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 62
Wilkinson v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 62
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Wilkinson v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 062 |
PARTIES: | Edward Wilkinson (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) |
CASE NO: | WC/2013/394 |
PROCEEDING: | Appeal against decision of the Workers' Compensation Regulator |
DELIVERED ON: | 7 April 2015 |
HEARING DATE: | 19 March 2014 (Hearing) 2 May 2014 (Appellant's submissions) 25 June 2014 (Respondent's submissions) 17 July 2014 (Appellant's submissions in reply) |
MEMBER: | Industrial Commissioner Knight |
ORDERS : |
|
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - BALANCE OF PROBABILITIES - whether worker suffered a physical injury - nature of the injury - whether injury arose out of, or in the course of, employment – whether employment was a significant contributing factor - Appellant bears onus of proof |
CASES: | Workers Compensation and Rehabilitation Act 2003 s 32 and s 550 Carman v Q-COMP 186 QGIG 512 Croning v Workers' Compensation Board of Queensland (1997) 156 QQGIG 100 Heald v Q-COMP (2004) 177 QGIG 769 JBS Australia Pty Ltd and Q-COMP (C/2012/35) – Decision Kudryavtseva v Blackwood [2015] QIRC 053 Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48 |
APPEARANCES: | Ms L. Willson, Counsel instructed by Shine Lawyers for the Appellant. Mr F. Lippett, Counsel directly instructed for Simon Blackwood (Workers' Compensation Regulator) |
Decision
- [1]This is an appeal by Mr Edward Wilkinson (the "Appellant") against the decision of Simon Blackwood (Workers Compensation Regulator) (the "Respondent" / the "Regulator") formerly known as Q-COMP. The decision of the Regulator confirmed an earlier decision of WorkCover to reject Mr Wilkinson's claim for compensation, contending the Appellant did not sustain a back injury in accordance with s 32 of the Workers Compensation and Rehabilitation Act 2003 (the "Act"). The appeal to the Commission is by way of a hearing de novo.
Issue for Determination
- [2]There is no dispute between the parties that, at the material time, the appellant:
- (a)was a "worker" within the meaning of s 11 of the Act; and
- (b)suffered a degenerative lumbar disc disease which had been aggravated by a disc protrusion.
- [3]The issue for determination by the Commission, therefore, is whether the appellant's back injury is an "injury" within the meaning of that term in s 32 of the Act. In particular, that requires consideration of whether his injury (or aggravation) arose out of, or in course of, his employment on 1 June 2013 when he was laying out seedling trays at the Forrest nursery and, if so, whether his employment was a significant contributing factor.
Legal Requirements and Onus of Proof
- [4]Section 32 of the Act relevantly provides as follows:
"32Meaning of Injury
(1)An injury is personal injury arising out of, or in the course of, employment if employment is a significant contributing factor to the injury.
…
(3)Injury includes the following -
- (a)a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
- (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 -
- a personal injury;
- a disease;
- a medical condition if the condition becomes a personal injury or disease because of the aggravation;
(4)For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation."
- [5]Except for those matters conceded by the Regulator, the Appellant carries the burden of proof in this appeal. To succeed in this matter, the Commission must be satisfied the Appellant has proven on the balance of probabilities that his personal injury, namely degenerative disc disease with a disc protrusion at L4/5 is one arising out of, aggravated by or occurring in the course of his employment.
- [6]In Kudryavtseva v Simon Blackwood (Workers' Compensation Regulator)[1], Neate C considered the authorities in so far as they related to onus, noting:
"Although the onus to be discharged in 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. (See MacArther v Workcover Queensland (2001) 167 QGIG 100, 1010 (Hall P) and cases cited)."
And later:
"In a case where expert medical evidence is led, before any such expert medical evidence be of value, the facts upon which it is founded must be provided by admissible evidence (see Coombes v Q-Comp (2007) 185 QGIG 680, 681)."
- [7]
"[27] It cannot be disputed that, when s 32 of the WRC speaks of 'employment' contributing to the worker's injury, it is referring to employment as a set of circumstances, that is to the exigencies of the employment of the worker by the employer. The legislation is referring to 'what the worker does in fact does during the course of employment'."
- [8]As to aggravation of an injury, in Heald v Q-COMP[3], Hall P confirmed the view of Dr Turner that there are two types of compensable aggravation:
"A degenerative condition may be aggravated in the sense that it may be made worse, i.e. after the aggravation the degenerative disorder is worse than it was before. But there can also be an aggravation in the sense of an increase of symptoms associated with a degenerative condition which, after the cessation of the symptoms, returns to its pre-aggravation state."
- [9]In JBS Australia Pty Ltd and Q-COMP[4] Hall P confirmed the need to establish that "employment must significantly contribute to the occurrence of the injury. It is insufficient to establish that the employment was the setting in which the aggravation occurred or the background to its occurrence."
- [10]Likewise, in Croning v Workers' Compensation Board of Queensland[5] citing Tophams Ltd v Sefton (1966) 1 All E.R. 1039, de Jersey P held that employment needs to be a "real effective cause" of the injury and not merely the setting or background in which the injury occurs.
- [11]
"It must be remembered that Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181 is an often cited but ageing authority.
… Pleming v Workers' Compensation Board of Queensland, ibid, does not decide that a worker afflicted with a degenerative back suffers an injury if the back becomes painful at work. Neither does Pleming, op cit., establish that a worker with a degenerative back will suffer an injury where the back becomes painful or more painful and the employment is a significant cause of the onset or intensification of pain."
Witnesses
Mr Edward Wilkinson
- [12]The Appellant gave evidence in support of his appeal. Mr Wilkinson, a 57 year old man, was employed by Forest Nursery Pty Ltd as a maintenance person at the time of the alleged injury. The Appellant initially commenced employment at the Forest Nursery as site manager at the time the nursery was first established. Mr Wilkinson maintained this position until he elected to stand down and take on a maintenance role on the basis that he did not have the requisite skills for the demands of the growing business.
Mrs Sonia Wilkinson
- [13]At the time of the hearing Mrs Wilkinson, the Appellants wife, was employed as a nursing assistant and had been married to the Appellant since 2003.
Mr Christopher Shorter
- [14]Mr Christopher Shorter, a co-worker of the Appellant's at Forest Nursery provided evidence in relation to the Appellant's activities at work on the day of the alleged incident.
Dr David Roselt, Dr Thomas Strahan
- [15]Medical evidence was provided by Doctor David Roselt, the Appellant's General Practitioner, and Doctor Thomas Strahan, a Consultant Physician to whom the Appellant was referred.
- [16]The Respondent chose to not call any witnesses in the hearing of this matter.
The Evidence
- [17]Mr Wilkinson commenced working at the Forrest Nursery in Bundaberg on a full-time basis around 2004. He assisted the owners to construct the nursery from a "blank canvas" after which the business experienced a period of rapid growth. In response to the growing demands of the business Mr Wilkinson stood down from the site manager role, electing to become responsible for the maintenance of the nursery given his understanding of the nursery structure, layout and irrigation processes. Mr Wilkinson held this role at the time of the alleged workplace incident which is the subject of this appeal.
- [18]Mr Wilkinson told the Commission about a previous injury to his back which occurred in October 2009 whilst he was overseas on holiday in Thailand. At that time he suffered a broken back in a boating accident. The injury was quite significant and required surgical intervention and pinning. Subsequent X-rays of the spine in 2010 also indicated some degeneration in the lower back. The Appellant also recalled how he had fallen at work in July 2010, injuring his knee and straining his lower back. Importantly, for this matter, Mr Wilkinson also gave evidence that he had also experienced some mild leg pain immediately prior to June 2013. [7]
The Incident
- [19]The Appellant's claim is based on the premise that he sustained an injury whilst working at his place of employment on Saturday 1 June 2013. Mr Wilkinson's evidence was that part of his responsibilities on that day included watering the seedlings in the nursery. With the assistance of Mr Shorter, the Appellant also laid out four to five pallets of seedlings over a period of approximately two hours. Whilst Mr Wilkinson initially estimated the number of seedlings which were laid out at a much higher number, he later conceded in cross-examination the number may well have been closer to the 417 punnets noted in the employer records. He agreed with the proposition the seedling trays were about 5cm deep and measured approximately 60cm by 30cm.
- [20]The trays of punnets were lifted from pallet in bundles of five and laid out on wire racks. Each bundle was estimated to weigh approximately five kilograms. Mr Wilkinson's evidence was that he lifted the punnets off the pallets by bending at the hip and then carrying them to pre-arranged racks, bending forward to place the punnets on the racks and walking backwards whilst doing so. The racks are approximately 127 centimetres off the ground.
- [21]The Appellant claims that it was during this process that he felt an onset of pain in the back of his right leg. He rated the pain at about two and a half on that day and said it got progressively worse over time. Mr Shorter, a friend and work colleague of Mr Wilkinson's told the Commission Mr Wilkinson was "laying out and then he went – he went – swore, rah, rah, rah and he didn't know whether he did his back or his hip and that's all he mentioned to me, so ---."
- [22]Later under cross-examination, having placed his hand on his left hip when describing what he observed with respect to Mr Wilkinson's comments on the day about his pain, Mr Shorter indicated he did not recall which hip Mr Wilkinson was holding when he heard him swear. He was also unable to recall where Mr Wilkinson was standing at the time of the incident and agreed with the suggestion he did not have a particularly good memory.[8]
- [23]The Appellant claimed that at some point after 1 June he made a comment to Ms Sue Forrest and Mr Lindsay Forrest but couldn't remember when he made the comment and/or whether it was at the time he handed in a Workers Compensation certificate some weeks later. Under cross examination Mr Wilkinson later indicated he couldn't recall if he told anyone, including Mr Shorter about the pain in his leg on the day of the alleged incident.
- [24]A member of staff was hosting an engagement party on the evening of 1 June 2013 to which the Appellant and his wife were invited. The Appellant's evidence was that he was in pain that evening and did not dance during the event. Mrs Wilkinson's evidence was they left the party at around 11pm because she was rostered to start work early the following day.
- [25]Mr Wilkinson attended work in the week following the 1st of June, but recalled his leg pain got progressively worse. His evidence was that at some stage Mr Webster noticed him hobbling around and he advised him he had 'pulled a hammy' but was unable to provide a particular time or date. Under cross examination Mr Wilkinson acknowledged he did not report to Mr or Mrs Forrest, his employers, that the pain in his leg was a result of his workplace activities until he obtained his initial WorkCover certificate. Mr Wilkinson also acknowledged he did not complete an incident report in relation to the alleged incident.
- [26]The Appellant and his wife took a short holiday in Hervey Bay over the following long weekend which extended from 7 June until 9 June. In the week prior to the long weekend he obtained a phone script from his GP for Viagra on 4 June 2013. Both Mr Wilkinson and wife gave evidence the Appellant engaged in very limited physical activity over the course of the long weekend, spending most of the time resting due to his pain.
- [27]The Appellant's evidence was that on the day after he returned from Hervey Bay he was unable to perform his work tasks due to increasing pain. He attended at the Bundaberg Base Hospital on 11 June to seek treatment for the pain he was experiencing. The Bundaberg Base Hospital records (Exhibit 6) for Mr Wilkinson on 11 June 2013 note the following:
"Was lifting seedling trays and stacking them up 10/7 ago, felt hamstrings tighten. Discomfort initially, then pain in Left buttock, rated 6/10, the next day. Pain has improved marginally since, worsened by movement."
- [28]The plan recorded in the notes indicated the treating doctor prescribed rest and analgesics and prepared a WorkCover certificate recommending light duties in the workplace for the following week.
- [29]When the pain continued, the Appellant sought further medical treatment through his General Practitioner, Dr Roselt on Monday 17 June. Doctor Roselt ordered a CT scan for Mr Wilkinson's lumbar spine. In his records (Exhibit 10) for Mr Wilkinson's consultation of 17 June 2013, Dr Roselt noted the following:
"Did something to leg
- ➢2/7 off, light duties 7/7 – W/C – on light duties until Wednesday - did not bring form – in office
not getting better
ain L) gluteal region
thinks pinched nerve/pulled hamstring
did it 3 Saturdays ago –
pain L) lower SIJ area
no local tenderness
can shoot down back of L) LL to knee
moves the wrong way can stop him in his tracks he says –
was laying vegetable seedling trays on low shelf mesh
bend over with 5 lay them down
fwwit bit stiff the Saturday
back of L) thigh got worse the next day or two
- ➢BBH later that week – bad by Wednesday –
Onset 3/652 ago Saturday"
- [30]A Workers Compensation Medical certificate prepared for Mr Wilkinson by Dr Roselt following the 17 June 2013 consultation lists the date of injury as 25 May 2013. The stated cause of injury is listed as "Bending over with trays at work".
- [31]Mr Wilkinson recalled attending the Bundaberg Base Hospital again on 19 June 2013. The hospital records (Exhibit 6) for 19 June 2013 note the following:
"Work related injury
Happened about a week ago when he was putting seeding trays on a rack in a bending position, when he felt a twinge
Reported the incident to the workplace
Pain progressively getting worse
Radiation to Lt thigh - post aspect
…
Went to see his GP who did a CT scan and referred him to BBH
…
CT Scan Reports;
- -Mild wedging with ill defined Sclerosis/Lucencies-
? Infective / Avascular Necrosis
- -Disc Prolapse at L4/L5
- -Thecal space stenosis at multiple levels
- -Mild Compression of L5Rt Nerve Root"
- [32]A brief report prepared by Dr Strahan (Exhibit 13) notes Mr Wilkinson was subsequently referred by the Bundaberg Hospital to the Friendly Society Private Hospital for the period 19 June 2013 to 24 June 2013. In a letter to Dr Roselt dated 24 June, 2013 Dr Strahan notes that Mr Wilkinson reported:
"an exacerbation of low back pain which onset three weeks ago while laying out trays at work at the nursery. Two days later he noted the onset of severe back pain which progressively increased since such that he is now able to barely walk. He initially had two days off and then returned to work on light duties until the day prior to his hospital admission when he had a recurrence of pain. He saw yourself and you initiated work cover certification…His back pain radiated to his left leg to the back of the thigh but not below his knee…A CT scan of his lumbar spine has revealed L4/L5 disc protrusion with L5 nerve compression."
- [33]In his evidence to the Commission, Dr Strahan noted the CAT Scan report clearly highlighted Mr Wilkinson had degenerative disc disease with some prolapsed discs. Doctor Strahan described his interaction with Mr Wilkinson during his consultation noting:
"Okay. Do you recall him telling you about why he was presenting?---Yes. I understand that he had suffered an injury three weeks previously and which resulted in low back pain and that his pain had increased during that period of time and so his main concern was pain.
Okay. Did he tell you what he was doing?---Yes. He works as a nurseryman and he was loading some trays of plants and he described leaning forward to lift these trays off benches and it sounded like it was an inappropriate way for anyone to be lifting and he undertook the lifting in this manner and that aggravated his back pain.
If he was handling trays of seedlings - - -?--- and leaning forward and placing them on benches, is that something that you identify as being consistent with the type of pain that he was - - -?---Yes. Look, my view is that I don't think that sort of lifting would have been sufficient to cause the nature of this man's injury which he has to his lower spine, which X-rays reveal he has disc protrusions and pressure on his nerve root, but I certainly think that it would be sufficient to aggravate a pre-existing injury."
- [34]Doctor Strahan further noted:
"I thought he had protrusion, compression of the left fifth lumbar nerve and he - he had pain without neurological deficit, and so I think the possible - the most likely explanation for that is that he'd aggravated the disc compression and - it was pressing on the nerve, causing more pain. You could argue that he had - he had sprained a muscle in his back.
…
Okay. Say you're saying that your diagnosis was an aggravation of the lumbar disc protrusion? ---Yes. I think that was the most likely but I also think that they were pre-existing --- Yes? --- injuries that he had. I don't think his lifting caused that lumbar nerve root compression - - - Yes? --- or that disc compression. "
- [35]Under cross-examination with respect to how a degenerative back can worsen in circumstances where a disc protrusion exists, Dr Strahan noted he had treated patients who stepped off a footpath and aggravated their pain, highlighting that relatively minor circumstances could aggravate a degenerative back.
Consideration and Conclusions
- [36]Ms Wilson, Counsel for the Appellant argued that notwithstanding the minor inconsistencies in the evidence of Mr and Mrs Wilkinson and the nervousness and stressed demeanors observed in the witness box of all the lay witnesses that the Appellant's evidence should be given substantial weight in circumstances where the Respondent chose not to call any witnesses.
- [37]Ms Wilson submitted the medical evidence is compelling and the notes taken by both doctors must be given due weight. Further, that both Mr Wilkinson and Mr Shorter confirmed Mr Wilkinson had laid out trays of seedlings on 1 June 2013 and that Mr Shorter recalled Mr Wilkinson making a comment about his injury.
- [38]Mr Lippett, on behalf of the Respondent, contends the Appellant relies exclusively on the laying out of seed trays on 1 June 2013 as causing an aggravation to a pre-existing degenerative disease. Further, that this activity could not have caused the initial aggravation because the aggravation relied on, namely a disc protrusion, must have happened prior to 1 June 2013 because Mr Wilkinson on his own evidence confirmed he was suffering from leg pain prior to 1 June and his leg pain, on the medical evidence was most likely the first indication that a disc had protruded.
- [39]In this respect Mr Lippett argued there is no medical evidence to support the proposition that the laying out of seedlings would have caused the disc to further protrude, this making the aggravation worse. In those circumstances, Mr Lippett further submitted Ms Wilkinson did not suffer a work related aggravation in terms of the first type of aggravation described by Hall P in Heald.[9]
- [40]The Respondent also argued there had been no suggestion by Mr Wilkinson of any sudden onset of increased pain or any evidence of feeling a sharp pain at any time during the day on Saturday, 1 June 2013. Instead, Mr Lippett submitted that all the evidence from Mr Wilkinson indicates that after the initial event that caused the disc to rupture there was a natural progression of pain, and his work duties were irrelevant to that progression. That is, it was not a case of a workplace activity causing an increase in symptoms which returned to their former state after the cessation of the activity.
- [41]In this matter, Mr Wilkinson carries the onus of proving on the balance of probabilities that he has an injury (an aggravation) within the meaning of s 32 of the Act. On the evidence before the Commission, I am not persuaded that an injury within the meaning of the act has occurred.
- [42]There is no contest that Mr Wilkinson suffers from a personal injury, namely degenerative disc disease with some prolapsed discs, however on his own evidence Mr Wilkinson indicated that he was feeling some leg pain prior to 1 June 2013 which suggests that any such aggravation may well have occurred prior to the date where he and Mr Shorter were laying out the seedlings.
- [43]Whilst Dr Strahan was prepared to opine that the laying out of the seedlings could have led to an aggravation, his reports did not reflect any knowledge of the prior leg pain raised by Mr Wilkinson in his own evidence. Dr Strahan also indicated an aggravation of a degenerative back condition such as Mr Wilkinson's could occur in the most minor of circumstances.
- [44]In my view, the medical evidence also does not support a scenario where Mr Wilkinson's symptom's flared up, only to settle down once he ceased performing the activities which led to an increase in his symptoms.
- [45]Whilst Mr Shorter was prepared to give evidence recalling Mr Wilkinson had made some comments about hip or back pain on or around the time the seedlings were being laid out, he was unable to recall where Mr Wilkinson was standing or what he was actually doing at the time he made the comments. Under cross-examination in respect of his evidence, I found his answers to be generally vague and unconvincing.
- [46]Whilst not necessarily fatal to his appeal, Mr Wilkinson also failed to lodge an incident report on the day of the alleged aggravation. On his own evidence it also seems he did not formally notify his employer of his injury until at least 10 June 2013, or even if he did he was unable to recall the exact date and did not appear to recall drawing any link with his employers between the laying of the seedlings and the onset of his pain until after he returned from his trip to Hervey Bay on 10 June 2013.
- [47]Despite having experienced quite severe back pain in the past, Mr Wilkinson continued to perform his duties in the week after he laid out the seedlings and also went away for a long weekend before seeking medical assistance for his injury on the 11June 2013.
- [48]At times the evidence of Mr Wilkinson in respect of his pain and symptoms and recall of Mr Shorter and Mrs Wilkinson in respect of their own observations of Mr Wilkinson's pain and symptoms also appeared to be inconsistent. For example, Mr Wilkinson referred to pain in his right leg, when the medical records retained by Dr Roselt and the Bundaberg Hospital made reference to Mr Wilkinson reporting pain in his left leg. Likewise, Mr Shorter grabbed onto his right hip when describing his recall of Mr Wilkinson's comments in relation to his symptoms on 1 June 2013, yet Mr Wilkinson's evidence was that he experienced pain in the back of his leg. Mrs Wilkinson also seemed to be unsure as to the timing of medical treatment suggesting her husband visited the hospital and was placed on lighter duties prior to heading away for a long weekend to Hervey Bay.
- [49]Having regard to all the evidence it is not clear in my view as to whether the aggravation to Mr Wilkinson's degenerative back condition was work related.
- [50]In this respect I am not satisfied the Appellant has demonstrated he suffered a personal injury on 1 June 2013 that arose out of, or in the course of his employment, or that his employment was a significant contributing factor to the injury. Consequently, I conclude the Appellant did not suffer a physical injury of the type referred in to in s 32(1) of the Act.
- [51]Accordingly I order:
(i)the appeal is dismissed;
(ii)the decision of the Regulator dated 29 October 2013 is confirmed; and
(iii)the Appellant is to pay the Respondent's costs of and incidental to the appeal to be agreed. In the event agreement cannot be reached between the parties with respect to the costs the Appellant has the liberty to apply.
Footnotes
[1] [2015] QIRC 053.
[2] Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48.
[3] (2004) 177 QGIG 769.
[4] (C/2012/35) – Decision
[5] (1997) 156 QGIG 100.
[6] 186 QGIG 512 [513].
[7] Transcript of proceedings, Wilkinson v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/394, Commissioner Knight, 19 February 2014) 9; 27 (E Wilkinson).
[8] Transcript of proceedings, Wilkinson v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/221, Commissioner Knight, 19 March 2014) 48-50 (C J Shorter).
[9] Heald v Q-COMP (2004) QIC 74.