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Lawlor v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 89

Lawlor v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 89

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Lawlor v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 089

PARTIES:

Lawlor, Kerry Dawn

(Appellant)

v

Simon Blackwood (Workers' Compensation Regulator)

(Respondent)

CASE NO:

WC/2013/221

PROCEEDING:

Appeal against decision of Simon Blackwood (Workers' Compensation Regulator)

DELIVERED ON:

18 May 2015

HEARING DATES:

17 - 18 February 2014 (hearing)

8 April 2014 (Respondent's submissions)

16 May 2014 (Appellant's submissions)

MEMBER:

Industrial Commissioner Knight

ORDERS :

  1. The Appeal is dismissed.
  2. Decision of the Regulator dated 12 June 2013 stands.
  3. The Appellant is to pay the Respondent's costs of, and incidental to the Appeal.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION - whether worker suffered a physical injury - nature of the injury - whether injury arose out of, or in the course of, employment - Appellant bears onus of proof - liquorice factory - presence and location of boxes - insufficient evidence of production - no eyewitness account - inconsistent medical records - prior history of back pain - did not suffer a physical injury in accordance with s 32 of the Act - Appeal dismissed.

CASES:

Workers' Compensation and Rehabilitation Act 2003

Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1

Carman v Q-COMP 186 QGIG 512 [513]

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

Dorcy Pacific Pty Ltd AND Q-COMP (WC/2010/14) Decision http://www.qirc.qld.gov.au

Heald v Q-COMP (2004) 177 QGIG 769

JBS Australia Pty Ltd and Q-COMP (C/2012/35) - Decision

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

McDonald v Q-COMP (2008) 188 QGIG 180

Momcilovic v R (2011) 254 CLR 1

Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48

Pollock v Wellington (1996) 15 WAR 1

Queensland Airways Limited v Q-COMP WC/2005/13 Decision

State of Queensland (Department of Communities Disability Services) AND Q-COMP (First Respondent) and Mrs B (Second Respondent) WC/2011/247 Decision

State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447

APPEARANCES:

Ms S. Anderson, Counsel instructed by Shine Lawyers for the Appellant

Mr A. McLean-Williams, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator)

Decision

  1. [1]
    This is an appeal by Kerry Dawn Lawlor (the "Appellant") pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the "Act") against the decision of Simon Blackwood (Workers Compensation Regulator) (the "Regulator"/ the "Respondent") formerly known as Q‑COMP.  The decision of the Regulator set aside a former decision of WorkCover to accept Ms Lawlor's application for Worker's Compensation, contending the Appellant did not sustain a back injury in accordance with s 32 of the Act.

 Grounds of Appeal

  1. [2]
    The grounds of appeal upon which the Appellant relies are as follows:
  • the Appellant sustained a back injury in the course of her employment on 31 January 2013;
  • the Appellant did attend a General Practitioner who provided a medical certificate to take one week off work;
  • subsequent pain caused her to be admitted to Ipswich Hospital on 10 February 2013 where she was treated with pain medication and sent home;
  • the Appellant underwent a scan one week after being admitted to Ipswich Hospital which showed damage to her disc at L5/S1; and
  • the Appellant did not make a claim for Worker's Compensation at the time of the injury as she was not aware of the severity of the injury and considered it would repair itself.

 Relevant Legislative Principles and Authorities

  1. [3]
    In considering whether Ms Lawlor is entitled to payment of compensation the Commission must have regard to section 32 of the Act, which relevantly provides as follows:

"32  Meaning of Injury

  1. (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 -

  1. (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;
  2. (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 -
  1. a personal injury;
  2. a disease;
  3. a medical condition if the condition becomes a personal injury or disease because of the aggravation;

     …

  1. (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."
  1. [4]
    Except for those matters conceded by the Regulator, the Appellant carries the burden of proof in this appeal.  There is no dispute between the parties that at the material time, the Appellant was a "worker" within the meaning of s 11 of the Act; and suffered a personal injury in the form of damage to a disc in her back at L5/S1.  To succeed in this matter, the Commission must be satisfied Ms Lawlor has proven on the balance of probabilities[1] that her personal injury, namely the damage to her disc at L5/S1, arose out of, or occurred in the course of her employment at Licoriceland, and, if so, that her employment was a significant contributing factor to the injury.
  1. [5]
    In Kudryavtseva v Simon Blackwood (Workers' Compensation Regulator)[2], Neate C considered the authorities in so far as they related to onus, noting:

"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.  (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)."

  1. [6]
    In Newberry v Suncorp Metway Insurance[3] Keane JA, with whom de Jersey CJ and Muir J agreed said:

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

  1. [7]
    As to aggravation of an injury, in Heald v Q-COMP[4], Hall P confirmed the view of Dr Turner that there are two types of compensable aggravation:

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

  1. [8]
    In JBS Australia Pty Ltd and Q-COMP [5], Hall P confirmed the need to establish that:

"…employment must significantly contribute to the occurrence of the injury.  It is insufficient to establish that the employment was the setting in which the aggravation occurred or the background to its occurrence."

  1. [9]
    Likewise, in Croning v Workers' Compensation Board of Queensland[6] citing Tophams Ltd v Sefton (1966) 1 All E.R. 1039, de Jersey P held that employment needs to be a "real effective cause" of the injury and not merely the setting or background in which the injury occurs.
  1. [10]
    Relevant to degenerative back injuries and the onset of pain Hall P stated in Carman v Q-COMP[7]:

"It must be remembered that in Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181 is an often cited but ageing authority.

…

Pleming v Workers' Compensation Board of Queensland, ibid, does not decide that a worker afflicted with a degenerative back suffers an injury if the back becomes painful at work.  Neither does Pleming, op cit., establish that a worker with a degenerative back will suffer an injury where the back becomes painful or more painful and the employment is a significant cause of the onset or intensification of pain."

  1. [11]
    The appeal to the Commission is by way of a hearing de novo.[8]   

 Witnesses

 Ms Kerry Lawlor

  1. [12]
    The Appellant gave evidence in support of her appeal.  Ms Lawlor, was employed by Licoriceland as a casual factory hand at the time of the alleged injury.  She was employed by the manager of the factory, Mr Timothy Lawlor who is also her brother.  Ms Lawlor worked on and off at the factory for various periods over approximately seven and a half years.

 Mrs Sandra Boyd

  1. [13]
    Mrs Sandra Boyd, the mother of both Ms Kerry Lawlor and Mr Timothy Lawlor was called to give evidence on behalf of Appellant.

 Ms Tamara Lawlor

  1. [14]
    Ms Tamara Lawlor, a 19 year old casual factory hand is the niece of the Appellant and the daughter of Mr Timothy Lawlor, the Manager of Licoriceland.  Ms Tamara Lawlor was called by the Regulator to give evidence with respect to her duties, general processes at the factory and the events of the morning of 31 January 2013, when Ms Kerry Lawlor, her aunt, claimed she injured her back.

 Mr Stephen Boyd

  1. [15]
    Mr Stephen Boyd was called by the Regulator to give evidence.  Mr Boyd held the role of Quality Assurance Officer for Licoriceland but was also related through marriage to Mr Timothy Lawlor and Ms Kerry Lawlor by virtue of their mother's marriage to Mr Stephen Boyd's brother.

 Ms Mymie Brown

  1. [16]
    Ms Mymie Brown, a 19 year old casual factory hand, was called by the Regulator to give evidence in respect of the events of 31 January 2013 and the processes undertaken in the factory.  Ms Brown commenced her employment at Licoriceland on 14 January 2013.
  2. [17]

 Mr Timothy Lawlor

  1. [18]
    Mr Timothy Lawlor was called by the Regulator to give evidence.  Mr Lawlor commenced employment at Licoriceland approximately twenty years prior to the time of the hearing and held the role of Manager.

 Dr Todman

  1. [19]
    Doctor Donald Todman was the only expert medical witness called in the matter; providing evidence on behalf of the Appellant in respect of her back injury.  Doctor Todman is a registered neurologist; Fellow of the Royal Australasian College of Physicians; Fellow of the Royal College of Physicians, London; Fellow of the American Academy of Neurology; and a Registered Neurologist, Medical Board of Australia.  Doctor Todman examined the Appellant and reviewed her records some ten months after the alleged incident.

 Evidence

  1. [20]
    Ms Kerry Dawn Lawlor was employed as a casual factory hand at Licoriceland.  Ms Lawlor held this role intermittently over a period of approximately seven and a half years.  At one point she resigned her position and went to the Gold Coast with her partner, returning some time later where she was offered and accepted a casual factory hand role.  Whilst she held the same title and generally performed the same duties as the two other factory hands with whom she worked in January 2013, her experience at the factory meant she would keep an eye on the less experienced employees.
  1. [21]
    Ms Lawlor told the Commission that on the morning of 31 January 2013 she hurt her back after she lifted an 8 kg box of carob coated liquorice from the bottom of a bench in the 'carob room'.  She recalled noticing as she walked past a bench in the carob room that some boxes had been stacked in such a way that the bottom shelf of the particular bench where the boxes were stacked was bowing.  Ms Lawlor's evidence was as she lifted one of the boxes she twisted her body from left to right and experienced running pain from her back through to her right leg and foot.  She said her whole leg felt tingly and numb.  She described walking out to where Stephen Boyd was monitoring the machines in the room where the liquorice mix was prepared.  She recalled standing right beside Mr Boyd and telling him that she had hurt her back lifting a box and was going home.
  1. [22]
    Following this, Ms Lawlor's evidence was that she also went and told the other factory hands working with her on that morning she had hurt her back lifting a box and was going home.  Ms Lawlor told the Commission Mr Boyd wore hearing aids due to some medical treatment he had previously received and occasionally had difficulty hearing.
  1. [23]
    The other factory hands working with Ms Lawlor, on the morning she claims she injured her back, included her niece Ms Tamara Lawlor and a young lady called Mymie Brown who had only recently commenced work at the Licoriceland on 14 January 2013.  Under cross-examination, Ms Lawlor described how most mornings she and some of the other factory hands would arrive before 7.00 am where they would stand outside and have a cigarette or eat breakfast.  Prior to commencing their shift the factory hands would wash their hands and put on a hair net, apron and a white coat at a prep station on the other side of the main conveyor belt. 
  1. [24]
    Under cross-examination, Ms Lawlor confirmed she regularly complained to her niece, Tamara Lawlor and Ms Brown about her sore back from 14 January 2013 when they had all first returned from the Christmas break through to 31 January 2013, the day she claimed she had injured herself lifting a box.  Ms Lawlor's niece, Tamara, also recalled her aunt continually complaining about how sore her back was during this period.  Her evidence to the Commission was that her aunt was in a lot of pain on the morning of 31 January 2013 just prior to commencing work noting it "was the worst I have ever seen it".  She wasn't surprised when Kerry Lawlor went home that morning.  She recalled encouraging her aunt to visit a doctor prior to that time.
  1. [25]
    Ms Lawlor confirmed that both Mr Stephen Boyd and Mr Timothy Lawlor had also encouraged her to see a doctor about her sore back and agreed Mr Boyd at one point had offered her a loan of some inversion boots to relieve her back pain prior to 31 January 2013.  Ms Lawlor confirmed that at times she had been bringing a heat pack into work with her to relieve her back pain prior to the day she claimed she had picked up the 8 kg box of liquorice.
  1. [26]
    Mr Stephen Boyd, the Quality Assurance Officer at Licoriceland, said the factory officially re-opened on 14 January 2013 following the Christmas break.  He described how the factory produced a range of different varieties of liquorice which came in gluten free, gluten, carob and non-carob versions.  Part of his role included ensuring the factory was HACCAP certified, which is an acronym for Hazard Analysis and Critical Control Points.  Mr Boyd considered the daily packing summary sheets for the factory from 14 January 2013 until 31 January 2013, and confirmed that in the two week period after the factory had re-opened that Licoriceland had not produced any 8 kg boxes of carob-coated liquorice.
  1. [27]
    Mr Boyd explained to the Commission that the HACCP certification prevented the factory from storing any packed boxes of product underneath benches due to risks associated with food contamination.  He described how after the boxes were packed and sealed, they generally would be placed on an empty pallet and taken into the warehouse.  Mr Boyd's evidence was that in hotter months such as January, the carob product would be stored in the carob room overnight so that it didn't overheat but not on the lower bench, where Ms Lawlor reported the boxes were stored on the day she said she hurt her back.
  1. [28]
    Mr Boyd explained the difference between the daily seal and weight check sheets and the daily summary sheets to the Commission, noting the daily summary sheet provided a better overview of what was produced in any one day.  He said it was highly unlikely there would have been any 8 kg carob boxes left in the factory over the Christmas break period due to the fact that it spoils in the heat.  He said that even in the unlikely circumstance where there was any residual carob product, it would have been stored on top of the bench.  Further, that had he seen any packaged product being stored on the bottom shelf that he would have removed the product.
  1. [29]
    Ms Kerry Lawlor's role, along with her niece Tamara and the other factory hand Mymie Brown, was to pack the liquorice into bags or boxes after it had been cooked, cooled and guillotined.  Ms Lawlor, her niece Tamara and Ms Brown would split their duties into packing, weighing, sealing and dating the liquorice after it had travelled down a purpose built conveyor system.  The factory was divided into different zones where liquorice would be packaged and stored depending on the size and nature of the order.  For example, one part of the factory was commonly referred to the carob room however it wasn't a separate room in its own right and simply adjoined other areas within the factory.  In this area the factory workers would pack orders for carob products.
  1. [30]
    Summaries of the packaged product were completed and retained by the factory workers on a daily basis.  Details that were recorded included the type of product, weight, quantities, batch code, use by dates and seal checks.  Ms Lawlor explained how the factory produced a variety of liquorice products for both human and animal consumption.  Ms Lawlor, her niece Tamara Lawlor and Ms Brown would fill in the sheets depending on who was present and undertaking various tasks during the production
  1. [31]
    When he first arrived at the factory on a standard work day at around 6.00am, Mr Boyd's evidence was that he would generally switch on the lights and turn on the boiler so he was able to heat up the machine which prepared the liquorice.  He said there was only one machine in the factory which made the liquorice but that it contained two votator's (or storage tanks) so that the ingredients for the gluten-free liquorice could be separated from the standard liquorice.  Once he turned on the boiler Mr Boyd described how he would walk through the factory, turn on the air-conditioners and check to ensure everything was ready to go for the day in accordance with the relevant manufacturing standards.
  1. [32]
    Ms Lawlor also confirmed that Mr Boyd would commence work earlier than she and the other factory hands, during which time he would open up the factory, warm up the mixing machines and also call out to the factory hands to let them know when the liquorice was about to come down the belt. 
  1. [33]
    Ms Kerry Lawlor explained to the Commission that sometimes where the conveyor belt was running too fast and they couldn't keep up with the conveyor belt, she and other factory hands would place the left over product into a spare box which would subsequently be packed into an 8 kg box at the end of the day.  Ms Lawlor's evidence was that the factory hands wouldn't always record the 8 kg boxes on the summary sheets and that it would either be sold in the shop or purchased by smaller shops in bulk.  Under cross-examination Ms Lawlor confirmed the carob product was no longer a great seller and that the standard liquorice products made up the bulk of production in the factory.
  1. [34]
    In respect of the events of the morning of 31 January 2013 when Ms Lawlor claimed she hurt her back, Mr Boyd's evidence was that he did remember Ms Lawlor coming to see him in the gluten-free mixing room early that morning.  He recalled standing on a platform placing some ingredients into the mixer.  He acknowledged he did wear hearing aids due to prior medical treatment he had received for cancer and estimated his hearing at about ninety percent.  He recalled Ms Lawlor was directly facing him when she told him that her back was too sore and she was going home.  Approximately ten minutes later he went out into the factory to assist Ms Tamara Lawlor and Ms Brown in the factory.  He said he wasn't too surprised about Ms Lawlor's comment because she had been complaining about a sore back since she had returned from the Christmas holidays.
  1. [35]
    Likewise, Tamara Lawlor said she was aware her aunt had been in pain since the first week they had returned from the Christmas break and had been in tears on occasion due to the pain.  Mr Boyd also recalled that on numerous occasions he had encouraged Ms Lawlor to see a doctor about her back after listening to her complain about the pain.  However he was very clear Ms Lawlor had not told him at any point during those conversations that she had hurt her back at work or when lifting a box at work.  
  1. [36]
    Mr Boyd was also quite clear there were no 8 kg boxes of carob on the lower bench where Ms Lawlor claimed they were stored on the day she said she injured her back.  He said that fatigue mats were occasionally placed on the lower bench, where Ms Lawlor claimed the boxes had been stored, whilst the floors were being cleaned or swept.  He also acknowledged he had noticed staff resting their feet on the bottom shelf of that particular bench in the carob room, but said he had not seen any boxes stored on the bottom shelf.  Ms Mymie Brown's evidence was that fatigue mats would be placed on the lower benches within the factory depending on the nature of the clean-up but also recalled that they and the bins had been placed in alternate locations as well. 
  1. [37]
    Ms Tamara Lawlor confirmed the daily packing sheet summaries for the period 14 January 2013 until up until 31 January 2013 contained no record of 8 kg boxes of carob covered boxes being packed.  Further, that the factory hands were required to record all packaged product on the daily summary sheets.  She was also quite clear that in all the time she had worked at the factory she had never seen product stored on the lower shelves of the bench in the carob room. 
  1. [38]
    Under cross-examination, Ms Kerry Lawlor said she thought the liquorice product the factory had been producing on the day she claimed to have hurt her back were called "Luv-a-Lik's".  Her evidence was the product had not started moving down the conveyor belt cooling tunnel by the time she went and saw Mr Boyd to tell him she was going home.  On that day, the daily summary sheets indicated that the boxes of liquorice being packed by the factory hands were smaller than 8 kg boxes, and were also being packed some eight to ten metres away from where Ms Lawlor said she observed the 8 kg boxes sitting on the bowed bench in the carob room.
  1. [39]
    Ms Kerry Lawlor's evidence was that empty cardboard boxes were generally folded and prepared by the factory workers for the next day's production on the previous afternoon but were occasionally also prepared in the morning as well.  She recalled the empty boxes would be stored under a steel bench in readiness for packing.  Ms Lawlor said that neither her niece or Ms Brown were in her presence for the entire period she was in the factory on the morning she claimed she hurt her back, stating her niece had gone upstairs to pick up some boxes and that at one point Mymie Brown had been around the other side of the bench where the prep station and a stapler were located.  It was at this point that she said she went to retrieve some packing tape.
  1. [40]
    On her way to retrieve the tape Ms Lawlor's evidence is that she observed the sealed 8kg boxes, also noticing the bow in the bench and went to move the boxes.  Ms Tamara Lawlor's evidence was that she was with her aunt the entire time she was in the factory and had not gone upstairs to retrieve boxes because they had already been made up the day before in anticipation of the "Luv-a-Lik" order.
  1. [41]
    Ms Lawlor's niece Tamara was quite clear that everything had already been organised for the day's order indicating she, Ms Brown and her aunt had all started together and noting:

"Yeah, we were all up the front.  I knew Aunty Kerry had a sore back, so we didn't do much and we had everything prepared the day before.  So there was nothing for us to do bar wait for the liquorice to come down." 

  1. [42]
    Ms Mymie Brown said she also did not recall seeing any boxes stored on the bottom shelf of the bench in the carob room and did not observe Ms Lawlor moving boxes from the bottom shelf.  Likewise, Ms Mymie Brown's recollection of the events of the morning of 31 January 2013 was that Ms Kerry Lawlor was with herself and Ms Tamara Lawlor for the period prior to any liquorice moving down the conveyor belt.  Further, that it was not necessary for the factory hands to make up boxes because they generally made them up in the afternoon.  Ms Brown's evidence was that she did not observe Ms Lawlor lifting any 8 kg boxes that morning, but did recall Ms Lawlor regularly complaining about her back prior to the 31st of January 2013.  Ms Brown recalled Ms Lawlor saying words to the effect of "…oh my back.  I can't take this anymore.  I've got to go…"
  1. [43]
    Ms Tamara Lawlor's evidence was she had not observed any 8 kg boxes of carob‑coated liquorice ever being stored on the lower shelf in the carob room, instead pointing to an alternate location for the storage of the 8 kg boxes.  Under cross-examination, Tamara Lawlor acknowledged that a bulk box of carob would be occasionally ordered but she said this was rare.  She also acknowledged that sometimes boxes of liquorice would be stored in the factory but pointed to a different table and location to the bench her aunt had identified in the hearing, later noting that they didn't store boxes on lower shelves in the factory due to concerns about contamination.
  1. [44]
    In respect of her actions on the day she claimed she injured her back, Ms Lawlor's evidence was that after telling Mr Boyd she was leaving work, she drove her car home which was about a twenty minute drive.  She sat in her car for about half an hour until she realized her son was at home, at which point she beeped the car horn and he came to help her out of her car.  She lay on her lounge for the rest of the day and then went to see her doctor, Joanne Cole at Springfield Medical Centre the following day.  Ms Cole prescribed her muscle relaxants and painkillers.  Under cross-examination Ms Lawlor said she told her GP what had happened at work and that she had been in pain for several weeks.
  1. [45]
    Two or three days later Ms Kerry Lawlor said she was unable to get out of bed and was taken by ambulance to the Ipswich Hospital.  On that occasion, Ms Lawlor was told she might have sciatica, prescribed some morphine and then sent home.  Under cross-examination Ms Lawlor said she thought she'd told the hospital on that visit that she'd slipped prior to Christmas.  An emergency department clinical record, dated 3 February 2013 (Exhibit 5), contains the following note: "lower back pain since Christmas", noting Ms Lawlor's pain became worse after lifting a box at work.  A further patient assessment and activity record of 3 February 2013, notes: "sacral back pain for a few weeks, but exacerbated over the last few days…Pt states has physical job and feels lifting may have exacerbated pain".
  1. [46]
    An ambulance report form dated 3 February 2013 contained the following note: "lower back pain, sacral region, since December, hx of labourous (sic) jobs."  A further record prepared by a Dr Sultana notes: "pain radiating to R) buttocks, knee since Christmas time worse in past 3/7 post lifting box (Exhibit 5)".
  1. [47]
    Then, on the morning of 14 February 2013, Ms Lawlor woke up and her foot had dropped.  Once again she visited the Ipswich Hospital where they eventually sent her for an MRI following which they transported Ms Lawlor to the Princess Alexandra Hospital, Emergency Department in Brisbane.  Ms Lawlor underwent discectomy surgery at L5/S1 the following day.  In response to a question on a patient election form (Exhibit 5) dated 14 February 2013, seeking information as to whether the hospital visit arose out of a work related injury or illness, a tick was placed in the 'No' box.  An emergency department fax transmission dated 14 February 2013 includes the following note against clinical history, "fall on buttock – end of December & intermittent low back pain".
  1. [48]
    Ms Lawlor's mother and her brother Timothy Lawlor, who is also the Manager of Licoriceland, were among her first visitors to the hospital following the surgery.  Up until this point Ms Lawlor characterised her relationship with her brother as great, telling the Commission they had always gotten along.
  1. [49]
    Although it's not entirely clear from the evidence as to when she was given the information, she recalled her brother telling her about a lady who had lost part of her finger whilst working at Licoriceland which had resulted in an increase in the factory's WorkCover premiums.  According to Ms Lawlor, her brother told her at the hospital that he didn't want her to claim worker's compensation and suggested she live at her mother's house so she could get sickness benefits.  Ms Lawlor's evidence was that she told her brother she wouldn't be claiming sickness benefits.  Mr Timothy Lawlor's evidence was that the first time he heard his sister was making a claim for worker's compensation was two weeks after she had left hospital following her operation.
  1. [50]
    Mrs Boyd, the mother of both Ms Kerry Lawlor and Mr Lawlor said her son Timothy had picked her up to take her to see her daughter at the hospital.  She told the Commission she had suggested to her son that it might be a good idea to undertake a family collection on behalf of Ms Lawlor.  She also recalled advising Timothy Lawlor her daughter would not be able to claim sickness benefits because her partner Gordon earned too much, at which point she recalled Mr Lawlor had suggested his sister could claim them if she lived with her mother.  Mrs Boyd indicated she had gotten along with her son quite well until her daughter had undergone her back surgery after which things had changed.
  1. [51]
    Ms Lawlor also gave evidence she had previously hurt herself at Licoriceland on another occasion and recalled an incident where she had fallen on her backside in the gluten free liquorice room on 17 December 2012 when she and the other factory hands, including her niece Tamara Lawlor had been cleaning up just before the Christmas shut down period.  She said her niece, Tamara was present at the time and helped her up off the floor after which she described sitting on a pallet for twenty minutes while she recovered.  She recalled her brother had left the factory early on that day and Mr Boyd was up at the hardware purchasing a part for one of the machines at the time she fell over. 
  1. [52]
    On the same day, Ms Kerry Lawlor said her niece, Tamara Lawlor, had fallen over and also hurt her wrist.  She recalled checking her niece's wrist.  According to Ms Kerry Lawlor, at the time her niece told Mr Boyd she had fallen over and hurt her wrist, but had later reported back to her aunt that he had just laughed.  Mr Boyd vaguely recalled Ms Tamara Lawlor hurting her wrist around this time but said he had laughed on another occasion about a separate event when Tamara had been playing around with a red ink stamp in a way that made it look as if she had cut her wrist. 
  1. [53]
    According to Ms Kerry Lawlor, her niece was taken to the hospital to have her wrist checked on the evening of 17 December 2012.  She said her brother came into the factory the following day and asked his daughter to contact him directly before going to see a doctor.  Mr Boyd recalled Mr Lawlor making a comment to him at some point about ensuring things were clearer noting they had introduced an incident reporting system.  Ms Tamara Lawlor recalled she did go to hospital to have her wrist checked on the evening after she hurt her wrist but that her father had expressed concern rather than anger.
  1. [54]
    Ms Lawlor said she also later reported to Mr Boyd she had fallen over on the same day, after which she said nothing further was said to her about the incident.  Although she was able to continue to undertake her duties afterwards, Ms Lawlor said the pain in her back gradually got worse over time.  She recalled working at the factory for a further two or three days following this event after which it was shut down for the three week Christmas break.  Mr Boyd's evidence was that he could not recall Ms Lawlor reporting she had fallen over in the factory just prior to Christmas.  Ms Tamara Lawlor was also unable to recall an occasion where her aunt had fallen over in the factory in the period immediately leading up to the Christmas break.
  1. [55]
    On another occasion, in April or May 2011, Ms Lawlor recalled falling through the ceiling at the factory whilst painting.  She said she had cuts and bruises on her arms and legs after the fall and took two days off work.  She recalled she was paid for the two days she did not attend work after the incident despite being a casual employee.  She elected not to make a WorkCover claim on that occasion.  Ms Lawlor said she didn't go to the doctor because she hadn't broken a bone.  Her brother, Timothy Lawlor recalled his sister did not want to make a claim at the time of this incident.

Dr Todman

  1. [56]
    In his report dated 26 November, 2013 (Exhibit 9), Dr Todman, a neurologist, recorded the history of Ms Lawlor's injury and the manner in which it occurred in the following terms:

"On this day she was working in the carob room in the factory.  She noticed that the boxes were stacked on the bench and the bench was bowing.  She lifted a box weighing about 8kg.  As she lifted and twisted to place the box on the bench she felt acute low back pain radiating into her right leg.

   …

Prior to this she had enjoyed good health.  There was a minor back injury just before Christmas in 2012 when she slipped at work landing on her back.  She had some mild back pain afterwards but it was improving prior to the accident in January 2013."

  1. [57]
    In his conclusion, Dr Todman noted:

"The injury as described is consistent with causing trauma to the lumbar spine.  Structures that may be affected include muscles, ligaments, facet joints and intervertebral discs.  The disc protrusion evident at L5/S1 is related to this injury.  It resulted in a lumbar radiculopathy with right foot drop."

  1. [58]
    Under cross-examination, Dr Todman noted that it was not uncommon for a person in their forties to have some degenerative and/or age-related changes in their spine.  He acknowledged that sometimes a person could have a spontaneous disc prolapse but noted that disc prolapses were usually related to trauma or lifting of some sort.

Findings and Conclusions

  1. [59]
    In addition to proving on the balance of probabilities that her back injury arose out of, or in the course of her employment, Ms Kerry Lawlor must also prove that her employment was a significant contributing factor to the injury.
  1. [60]
    Ms Anderson, Counsel for the Appellant in this matter argued that on the morning of 31 January 2013, Ms Kerry Lawlor injured her lower back whilst working as a factory worker at Licoriceland whilst transferring an 8kg box of carob-coated liquorice from the bottom shelf of a steel bench in the factory.  Mr McLean Williams, Counsel for the Respondent submitted the evidence did not support Ms Lawlor's claim that her injury arose out of or in the course of her employment at Licoriceland, nor was she able to prove that her employment was a significant contributing factor.
  1. [61]
    The medical evidence presented left no doubt that Ms Lawlor, at some point, injured a disc in her lower back.  Whilst Dr Todman's report linked the occurrence of the injury back to the workplace incidents of 31 January 2013 as described to him by Ms Lawlor, there must be reasonable proof that the incident happened for the medical evidence to have any weight.  The key point on the matter was examined in Pollock v Wellington[9] where Anderson J. posited: (see also Kudryavtseva v Blackwood). [10]

"…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."

  1. [62]
    With that in mind it is not sufficient to rely on a statement that something happened, the party alleging the "fact" must provide some direct or corroborative material that demonstrates the existence of a fact in issue.[11]  As such the Appellant bears the onus of proving that it is more likely than not[12] that she has an "injury" as defined in s 32 of the Act.

Did Ms Lawlor attempt to move an 8kg box of carob covered liquorice from the bottom shelf of a steel shelf in the carob room?

  1. [63]
    Ms Lawlor's evidence is that on 31 January 2013 she bent over and lifted an 8kg box from a low set shelf in the carob room that was bowing under the excessive and disproportionately distributed weight of the boxes.  She claimed that as she twisted her body to place the box on a work bench she experienced excruciating pain which necessitated her to cease work immediately.  Unfortunately Ms Lawlor has not been able to overcome:
  1. (a)
    the lack of documentary evidence demonstrating the production or existence of the alleged 8kg boxes of carob-coated liquorice during the month of January 2013, notwithstanding the implementation of a fairly rigorous reporting process for the production and packaging of food products prepared by the factory;
  2. (b)
    consistent evidence from Ms Tamara Lawlor, Mr Stephen Boyd and Ms Mymie Brown, who were directly engaged at Licoriceland at the relevant time, that they did not observe any boxes stored on the lower bench in the carob room;
  3. (c)
    the lack of any eye witness accounts from other factory workers of the events described by Ms Lawlor despite their close proximity on the morning of 31 January 2013;
  4. (d)
    the lack of any recollection by her co-workers of any contemporaneous report or comments by Ms Lawlor of the incident.
  1. [64]
    Ms Lawlor's co-workers all consistently recall her complaints of back pain prior to 31 January 2013 but after her return from the Christmas break, but were unable to recall any occasion where she had linked her complaints of pain to a work related incident.
  1. [65]
    Further, beyond Dr Todman's medical reports, the Appellant was unable to provide the Commission with any consistent incident reports or contemporaneous notes other than those recorded by an emergency department on 3 February 2013 which directly link her back injury and related pain to a work incident on 31 January 2013.  Even then, the notes of 3 February which were submitted refer to "lower back pain since Christmas", or "sacral back pain for a few weeks, but exacerbated over the last few days…Pt states has physical job and feels lifting may have exacerbated pain" or "lower back pain, sacral region, since December, hx of labourous (sic) jobs" or "pain radiating to R) buttocks, knee since Christmas time worse in past 3/7 post lifting box " (Exhibit 5).
  1. [66]
    There is no doubt Ms Lawlor has suffered an injury at some point in time which has brought about a need for surgery to alleviate pain and enable her to function in a normal manner.  However a review of the medical records for the relevant period, in combination with her own evidence and that of Mr Boyd and Ms Tamara Lawlor in respect of the Appellant's complaints following her return to work after the Christmas period indicate she was in pain well before 31 January 2013.
  1. [67]
    Whether the initial damage occurred when she fell through the ceiling whilst painting part of the factory some years earlier; or when she allegedly slipped and fell whilst cleaning the production area prior to Christmas 2012; or due to "lifting" as she reported to the emergency department; or the reasons on which this Appeal is based – that is, whilst transferring an 8kg box from a lower shelf in the carob room, I consider the Appellant has failed to sufficiently discharge her obligation to prove on the balance of probabilities that she suffered an injury on 31 January 2013 which arose out of, or in the course of her employment, and that her employment was a significant contributing factor to the injury that is the subject of this Appeal.  Consequently, I conclude the Appellant did not suffer a physical injury in accordance with s 32 of the Workers Compensation and Rehabilitation Act 2009.
  1. [68]
    Accordingly, I order:
  1. (i)
    the appeal is dismissed.
  2. (ii)
    the decision of the Worker's Compensation Regulator of 12 June 2013 is confirmed;
  3. (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 costs the Appellant has the liberty to apply.

       

Footnotes

[1] State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447; Queensland Airways Limited v Q-COMP WC/2005/13; Dorcy Pacific Pty Ltd AND Q-COMP (WC/2010/14) Decision ; State of Queensland (Department of Communities Disability Services) AND Q-COMP (First Respondent) and Mrs B (Second Respondent)WC/2011/247 Decision .

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

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

[4] (2004) 177 QGIG 769.

[5] (C/2012/35) - Decision .

[6] (1997) 156 QGIG 100.

[7] 186 QGIG 512 [513].

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

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

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

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

[12] Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1.

Close

Editorial Notes

  • Published Case Name:

    Lawlor v Simon Blackwood (Workers' Compensation Regulator)

  • Shortened Case Name:

    Lawlor v Simon Blackwood (Workers' Compensation Regulator)

  • MNC:

    [2015] QIRC 89

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    18 May 2015

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
2 citations
Jump To
Cite 1 - (1951) 217 ALR 1
Cite 2 - (1951) 217 ALR 1
Carman v Q-Comp (2007) 186 QGIG 512
2 citations
Jump To
Cite 1 - (2007) 186 QGIG 512
Cite 2 - (2007) 186 QGIG 512
Coombes v Q-Comp (2007) 185 QGIG 680
2 citations
Jump To
Cite 1 - (2007) 185 QGIG 680
Cite 2 - (2007) 185 QGIG 680
Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100
2 citations
Jump To
Cite 1 - (1997) 156 QGIG 100
Cite 2 - (1997) 156 QGIG 100
Heald v Q-COMP (2004) 177 QGIG 769
2 citations
Jump To
Cite 1 - (2004) 177 QGIG 769
Cite 2 - (2004) 177 QGIG 769
Kudryavtseva v Blackwood [2015] QIRC 53
3 citations
Jump To
Cite 1 - [2015] QIRC 53
Cite 2 - [2015] QIRC 53
Cite 3 - [2015] QIRC 53
MacArthur v WorkCover Queensland (2001) 167 QGIG 100
1 citation
Jump To
Cite 1 - (2001) 167 QGIG 100
Momcilovic v R (2011) 254 CLR 1
2 citations
Jump To
Cite 1 - (2011) 254 CLR 1
Cite 2 - (2011) 254 CLR 1
Newberry v Suncorp Metway Insurance Ltd[2006] 1 Qd R 519; [2006] QCA 48
2 citations
Jump To
Cite 1 - [2006] QCA 48
Cite 2 - [2006] QCA 48
Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181
1 citation
Jump To
Cite 1 - (1996) 152 QGIG 1181
Pollock v Wellington (1996) 15 WAR 1
2 citations
Jump To
Cite 1 - (1996) 15 WAR 1
Cite 2 - (1996) 15 WAR 1
State of Queensland v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447
2 citations
Jump To
Cite 1 - (2003) 172 QGIG 1447
Cite 2 - (2003) 172 QGIG 1447
Stephen Horace MacDonald v Q-COMP (2) (2008) 188 QGIG 180
2 citations
Jump To
Cite 1 - (2008) 188 QGIG 180
Cite 2 - (2008) 188 QGIG 180
Tophams Ltd v Sefton (1966) 1 All E. R. 1039
1 citation
Jump To
Cite 1 - (1966) 1 All E. R. 1039

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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