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Lewis v Workers' Compensation Regulator[2015] QIRC 98

Lewis v Workers' Compensation Regulator[2015] QIRC 98

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Kevin Lewis v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 098

PARTIES:

Kevin Lewis

(Appellant)

v

Simon Blackwood (Workers' Compensation Regulator)

(Respondent)

CASE NO:

WC/2013/272

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

26 May 2015

HEARING DATES:

23 January 2014; 11 April 2014 (hearing)

5 May 2014 (Respondent's submissions)

19 May 2014 (Appellant's submissions)

MEMBER:

Industrial Commissioner Knight

ORDERS:

  1. The appeal is dismissed;
  2. The decision of the Regulator dated 20 August 2013 is confirmed; and
  3. 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 Respondent has the liberty to apply.

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 - 15 year delay in reporting incident - No contemporaneous notes in support of incident occurring - Delayed onset of symptoms - Appellant bears onus of proof - did not suffer a physical injury in accordance with s 32 of the Act - Appeal dismissed.

CASES:

Workers' Compensation and Rehabilitation  Act 2003 s 32

Bradshaw v McEwans Pty Ltd (1952) 217 ALR 1

Carman v Q-COMP 186 QGIG 512

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

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]1 Qd R 519

Pollock v Wellington (1996) 15 WAR 1

Theresa Helen Ward and Q-Comp (C/2011/39QIRC)

APPEARANCES:

Mr J. Morris instructed by Everingham Lawyers (Appellant)

Mr G. Rhead directly instructed for Simon Blackwood (Workers' Compensation Regulator).

Decision

  1. [1]
    This is an appeal by Kevin Lewis (the "Appellant") pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the "Act") against the decision of the Regulator's Review Unit (the "Regulator"/the "Respondent") formerly known as QCOMP.  The decision of the Regulator confirmed the decision of WorkCover to Mr Lewis's application for compensation in accordance with s 32 of the Act.
  1. [2]
    Since the original claim was lodged by Mr Lewis, the Act has been amended and Q-COMP has since been abolished.  As and from 29 October 2013, the Act provides that Q-COMP is replaced by Simon Blackwood (Workers' Compensation Regulator) (the "Regulator").  Thus the Regulator is the Respondent in this appeal. 

Grounds of Appeal

  1. [3]
    The grounds of appeal, as set out in the appeal document, upon which the Appellant relies are as follows:
  1. The Appellant provided evidence that he had consulted with a general practitioner in March 2013 in the circumstances that prompted him to receive that treatment;
  2. The Appellant provided details as to when his symptoms commenced and why he had not obtained earlier medical treatment;
  3. The Appellant provided a statement of Ms Keron Atkins confirming that he would get headaches a number of times a week that required him to carry Panadol;
  4. The Appellant provided a medical certificate of Dr Zaer dated 11 July 2013 stating "This is to certify I have been seeing Kevin Lewis since 13 March 2013 I have noticed pain in the neck and shoulders.  He gives a history of ongoing repetitive injuries due to changing tyres, lifting equipment, loading tyres onto utilities ("utes") over 22 years of his job.  The straw that broke the camel's back was the tyre falling on his head from 10 feet above.  Since then he has been treated for whiplash like injury and all this is due to his job."
  5. The medical evidence confirms that the Appellant's cervical spine injury is as a result of his work related duties;
  6. There is no evidence whatsoever of any other cause of the Appellant's injury; and
  7. For the reasons stated above the review decision dated 20 August 2013 is wrong in both fact and at law.

Issues for Determination

  1. [4]
    The issue to be decided is whether the worker sustained an "injury" within the meaning of s 32 of the Act.  This means whether it is more probable than not that:
  1. (a)
    Mr Lewis sustained a personal injury to his cervical spine over a period of time between 1995 and 2011, whilst employed by Keith McKay's Tyres and Mechanical and More ("McKay's Tyres"/the "employer");
  2. (b)
    the personal injury arose out of or in the course of Mr Lewis's employment, in particular following an incident which occurred in or around 1999 when he was hit on the head with a tyre leading to an injury which was aggravated by ongoing intensive manual work he carried out for the employer over a period of time; and
  3. (c)
    the employment was a significant contributing factor to the cervical spine injury.

Relevant Legislative Principles and Authorities

  1. [5]
    In considering whether Mr Lewis sustained an "injury" within the meaning of the Act, the Commission must have regard to s 32, which 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 -

  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;

(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. [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)."

  1. [7]
    In Newberry v Suncorp Metway Insurance[2] Keane JA, with whom de Jersey CJ and Muir J agreed said:

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

  1. [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."

  1. [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."
  1. [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. 
  1. [11]
    Relevant to degenerative back injuries and the onset of pain Hall P stated in Carman v Q-COMP:[6]

"It must be remembered that Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181 is an often cited but ageing authority… Pleming v Workers' Compensation Board of Queensland, ibid, does not decide that a worker afflicted with a degenerative back suffers an injury if the back becomes painful at work.  Neither does Pleming, op. cit., establish that a worker with a degenerative back will suffer an injury where the back becomes painful or more painful and the employment is a significant cause of the onset or intensification of pain."

  1. [12]
    The appeal to the Commission is by way of a hearing de novo.[7]

Witnesses

Mr Kevin Lewis

  1. [13]
    The Appellant gave evidence in support of his claim.  At the time of the hearing Mr Lewis was 50 years of age and had been engaged in the tyre industry for more than twenty years undertaking delivery, tyre fitting and later managerial/administration duties.  He was employed by McKay's Tyres at Red Hill for intermittent periods from 1997 until 2011.  In 2010 Mr Lewis transferred to a related South Brisbane business owned by the same employer until February 2011 when he transferred back to Red Hill and then finally left his employment at McKay's Tyres approximately two weeks later.  In the relevant period Mr Lewis was also employed by Stafford Motors, Bribie Island Bridgestone and most recently Caboolture Goodyear, prior to his ceasing work and lodging a Workers Compensation claim dated 31 May 2013.

Ms Keron Atkins

  1. [14]
    Ms Atkins was employed by McKay's Tyres at Red Hill over three separate periods between 1995 and 2005.  Ms Atkins was initially engaged as a console operator, later moving into deliveries.  She eventually became responsible for the business books, holding a managerial role in the latter stages of her employment.

Mr Leon Dennis

  1. [15]
    Mr Dennis purchased McKay's Tyres at Red Hill with his brother Adrian Dennis and another partner in 1992.  In conjunction with his partners, Mr Dennis purchased a second tyre fitting business in South Brisbane in 2006, later purchasing the remaining shares of the Red Hill business from his other partners in 2008.  Mr Dennis went to school with Mr Lewis and later when he and his brother purchased the McKay's business in 1992 from Anita McKay, Mr Dennis retained Mr Lewis in the transition.

Dr Scott Campbell

  1. [16]
    At the time of the hearing Dr Campbell was a senior neurosurgeon at the Royal Brisbane Hospital.  Mr Lewis was referred to Dr Campbell for a medical assessment for the purposes of this appeal. 

Dr Farzin Zaer

  1. [17]
    Dr Zaer, a General Practitioner, treated Mr Lewis for his injury when he initially presented at the Morayfield Medical and Dental Centre on 13th of March 2013. 

Dr Craig Hughes

  1. [18]
    Dr Craig Hughes, an Orthopaedic Fellow with the Prince Charles Hospital, examined Mr Lewis on 5 July 2015.

Evidence

  1. [19]
    Kevin Lewis commenced working for Keith McKay's Tyres and Mechanical in 1991.  At that time, the business was owned by Anita McKay until it was purchased by Leon Dennis, Adrian Dennis and Peter Mewburn in November 1992.  Mr Lewis continued working in the business until sometime in 2011 breaking his employment part-way through to go and work with a friend who had set up a mechanical repair shop.
  1. [20]
    Mr Lewis was initially employed by McKay's Tyres to undertake driveway servicing, tyre fitting and delivery of tyres to trade customers.  He agreed that in the initial ten or so years of his employment with Keith McKay's Tyres approximately 50 percent of his role encompassed delivery of tyres with the remaining time predominantly spent on tyre fitting duties.  Later, in the final three years of his employment with McKay's Tyres approximately 70 percent of his duties were office duties with tyre fitting and delivery duties making up the remaining 30 percent. 
  1. [21]
    Mr Dennis was of the view that in the earlier stages of his employment the majority of Mr Lewis's duties, approximately seventy percent fell into tyre deliveries, followed by some tyre fitting and other duties.  Mr Dennis's evidence was that in the last few years of his employment, the Appellant undertook salesperson/assistant manager related duties when he moved to the South Brisbane business. 
  1. [22]
    Mr Lewis told the Commission that when delivering tyres he would load the predominantly rimless tyres by hand onto the work ute with or without assistance depending on the weight and size of the deliveries. 
  2. [23]
    Mr Lewis described his tyre fitting duties in the following manner:

"Okay.  The tyre fitting: what does that involve?---That one there was, get the car when it's parked in the driveway into the hoist – even if you had a hoist or you don't have a hoist, you've got to jack the car up.  Use the [indistinct] gun to take the wheels off, roll the wheels to the time machine.  You've got to break the beads on both sides, which you're constantly bending down to break the beads, and lift the wheel onto the machine.

How do you break the beads?---By a bead-breaker that's attached to the machine by a paddle."[8]

  1. [24]
    Mr Lewis's evidence was that a variety of vehicle tyres would be fitted at the premises.  Whilst tyres were predominantly fitted to passenger cars the business also serviced four wheel drives and light trucks.  Though, he noted the owner would avoid having to undertake large truck tyre changes as it would block the petrol bowsers for a period of time.  Mr Dennis estimated his business would perform a tyre change on trucks every couple of months or so.  Where truck tyres were fitted, the work was completed outside as they generally didn't fit inside the workshop. 
  1. [25]
    The fitting of truck tyres in this instance was a manual process including the process of breaking the bead between the tyre and wheel rim.  The breaking of the bead on a truck tyre, depending on the size could involve the use of a slide hammer and the application of physical force.  Under cross-examination Mr Lewis confirmed the de-beading of the tyres was generally undertaken automatically by machines where various pedals and levers would be deployed.  He also indicated the work would be undertaken and shared by up to five other tyre fitters or delivery attendants.
  1. [26]
    When asked about the weight of the truck tyres Mr Lewis was unsure but said that it would take two people to lift them.  Whilst he initially estimated the weight of passenger car tyres to weigh between 50 to 70 kilograms he later acknowledged under cross examination it could be closer to 20 to 30 kilograms depending on the size.  Ms Atkins estimated the weight of the passenger car tyres at 5kgs. Mr Dennis estimated the weight at around 7 to 10kgs.
  1. [27]
    Mr Lewis resigned from McKay's Tyres in 1993 to work with a friend who established Stafford Motors.  Whilst the business undertook mechanical work on vehicles, Mr Lewis's evidence was he predominantly carried out administrative duties associated with the operation of the business.  Eventually, Mr Lewis returned to Keith McKay's Tyres in 1996 where he undertook similar duties to those he had previously carried out in the business, though over time the proportion of tyre-fitting duties he undertook in comparison to administrative/ordering responsibilities altered to the extent that he spent 70 percent of his time on office duties and the remainder on tyre fitting in the latter stages of his employment.
  1. [28]
    Mr Lewis described the workshop area where tyre-fitting was undertaken as being somewhat cramped when all three vehicle spaces were in use.  He said he had complained to Mr Dennis on occasion about the cramped work space but Mr Dennis was unable to recall his complaints.  Mr Dennis's evidence was that it was possible to get three cars into the workshop comfortably and that putting the tyres on and taking them off was easy enough.
  1. [29]
    The workshop was lined with tiered racks designed for the purposes of storing particular brands of passenger tyres.  The downstairs area was used for storing truck tyres and other passenger vehicle tyres that wouldn't fit in the upstairs storage racks.  Mr Lewis told the Commission that bulk quantities of tyres would be delivered and stacked outside of the workshop.  From this area the tyres would either be stacked in the racks in the main workshop or selectively thrown over the rail to be stored in racks downstairs.  The metal tyre storage racks in the upstairs area were stacked four tiers high.  When storing the tyres, he said the staff would scale the racks, balance on them and have another staff member throw the tyres up one at a time. 

The 1999 Injury

  1. [30]
    During the proceedings, Mr Lewis described an incident where a tyre fell on his head whilst he and another work colleague, Adrian Dennis were storing a delivery of approximately 150 tyres.  Although he was somewhat vague about the date, he estimated it occurred in or around 1999.  He recalled he and Mr Adrian Dennis started by rolling the Yokohama tyres inside the workshop, in groups of 10 to store, before bringing another ten units into the workshop.  Adrian Dennis climbed to the top rail of the storage racks and balanced himself.  Mr Lewis then threw the tyres up to Mr Dennis one at a time.  During the process, Mr Lewis recalled bending down to pick up the next tyre when Mr Dennis dropped the tyre that had been thrown to him and it landed on Mr Lewis's head.
  1. [31]
    Mr Lewis described his physical reaction to the incident in the following terms:

"All right.  So you've thrown this tyre up.  Bent down to get the next one and what happened?---Tyre hit me right on top of the head.

All right.  So the tyre strikes you in the head and what do you do?---I sort of like, sort of like grabbed the actual rail to get my bearings right and Aiden said to me, you know, are you okay, I said yeah, yeah, I think [indistinct].  So it's all good.  And then, sort of, like, waited probably about a minute and he said you good to go again and I said yeah, let's get it done.

Well, when you waited for a minute what were you doing during that minute?---Just standing there trying to get my breath.

All right.  Did you lose consciousness at all?---It felt like I was going to – at the initial blow, like I was going to, like, knock myself out.  And it's only because I grabbed the actual rack.

Were you in any pain?---Not at that stage, no."[9]

  1. [32]
    Mr Lewis went on to say that once he regained his breath he continued on with the task and completed his shift for the day but noted that he did tell Leon Dennis that Adrian Dennis had dropped a tyre on his head to which Mr Dennis allegedly responded "[I]s the tyre okay?" Mr Lewis claims there was no further response or discussion about the matter.  Under cross-examination he said he didn't go to the doctor because he wasn't in any pain.  He recalled telling Ms Atkins about the tyre incident at some point after it occurred but his recollection about where and when he reported the incident was particularly vague.  Mr Leon Dennis had no recollection of the incident or any conversation with Mr Lewis about such an incident.
  1. [33]
    Ms Atkins evidence was that she did remember Mr Lewis "mentioning about tyres - a tyre falling on him" but was unable to narrow down a specific time period when it might have occurred.  She also recalled that it was only later in her employment that a specific ladder was put in place to assist employees place the tyres in the upper racking.  Under cross-examination Ms Atkins acknowledged that she may or may not have been working with McKay's Tyres at the time Mr Lewis told her about a tyre incident, but acknowledged she had not recalled the incident at the time she had prepared a prior statement in respect of Mr Lewis's injury.
  1. [34]
    Mr Lewis confirmed he didn't seek any medical attention, nor did he fill out a report after the tyre incident.  Under cross-examination he acknowledged he didn't seek medical attention in respect of the injury or any subsequent pain he felt in his shoulders or neck until he saw Dr Zaer some fourteen years later in 2013.  
  1. [35]
    In respect of the 1999 tyre incident, he recalled waking the next morning with a headache.  He took a couple of Panadol and went to work, completing a normal shift for that day and taking another two Panadol around lunchtime.  He described feeling some pain in his neck and shoulders by the end of the day.  Over the following two weeks, Mr Lewis's evidence was that he continued to experience pain and recalled taking time off work due to a headache that became a migraine.  However, he did not seek any medical attention during this period.
  1. [36]
    Both Ms Atkins and Mr Dennis recalled Mr Lewis taking Panadol at work.  Ms Atkins's recollection of the period within which Mr Lewis was taking the Panadol was quite vague.  She was unable to say with any certainty at which point in her or Mr Lewis's employment she had observed him taking Panadol.  Mr Dennis was of the view Mr Lewis had not exhibited any neck or back pain but had suffered from headaches "for a long, long time. Even when he was work [sic] for - when Anita McKay owned it. So yeah, he used to carry around Panadol then."[10]  Mr Dennis said he was aware Mr Lewis took Panadol for his migraines, but confirmed he had not complained the migraines were a result of his work activities.
  1. [37]
    Over the following three year period Mr Lewis recalled experiencing headaches with varying intensity commencing between 10am and 12 noon nearly every day, consuming up to eight Panadols each day.  Under cross-examination Mr Lewis accepted he took sick leave, acknowledging it appeared some of those sick days which were taken immediately before or after a weekend, but suggesting he didn't have a lot of confidence in the records.  Mr Lewis also acknowledged he had not previously provided any detail about a tyre falling on his head in his original WorkCover claim form nor any subsequent documentation lodged in another court. 
  1. [38]
    In or around February 2011, Mr Lewis confirmed he left his employment with McKay's Tyres, however before this he worked for approximately two years at another South Brisbane franchise which was also owned by Mr Dennis.  This franchise was eventually sold by Mr Dennis in 2011 to Mr Chris Lew.  Mr Lewis accepted a position with the new owner in early 2011.  Mr Lewis described his work as being less manually oriented and more focused on the management of the business.  For example, he estimated the number of tyres he changed with his new employer at approximately five cars a day in comparison to twenty cars a day at Red Hill with Mr Dennis.  Mr Dennis's evidence was the Red Hill business serviced at most up to ten cars per day.
  1. [39]
    Mr Lewis estimated he worked for Mr Chris Lew between May 2011 to approximately February 2012 and again from July 2012 until January 2013, when he decided he would look for employment closer to his home in Caboolture.  He recalled having a sore neck and shoulder whilst working for his new employer, Mr Lew, but said he didn't visit a doctor during this period.  Under cross-examination, Mr Lewis recalled he had undergone a scan of his spine and cervical region on 16 December 2011, taking some leave around this period.  He said he gave up his employment around this time because he thought that his daily motor bike travel from Caboolture to South Brisbane may have been irritating his neck problems.
  1. [40]
    Prior to resigning his employment with Mr Lew he recalled taking sick leave on a number of occasions, taking up to two or three sick days every couple of weeks.  Following this he secured a role with Goodyear Caboolture for a period of three to four weeks, however he resigned from his position when the pain in his neck and shoulder became unbearable.
  1. [41]
    Mr Lewis told the Commission his new wife Cathy, who he married in September 2012, eventually encouraged him to see a doctor in 2013 after observing the number of pain relief tablets he was consuming following an occasion where they were undertaking some weeding in the garden during which he bent down and felt faint.  He made an appointment and eventually saw Dr Zaer on 13 March 2013 where he recounted to the doctor that he'd had a sore neck with headaches which were disabling for two weeks.  In his notes for the appointment, Dr Zaer recorded the following comments:

"13-March-2013

Sore neck with headaches – disabling for two weeks

Hasn't been able to work as a tyre mechanic

Neck – tender tot ocuh [sic], all movements painful

Investigations and review

Exercises and conservative management

Risks of tramal and valium explained - drowsiness - DO NOT DRIVE OR SIGN DOCUMENTS, ETC, suicidal potential, addiction, constipation, etc

13-March-2013

         Rx: 50 – Valium (Tablets) 5mg

                Patient Information – Neck: painful neck

                Patient information – Exercises for your neck

      OBx: Radiology Order, CT Brain Scan, CT C Spine".

  1. [42]
    On 1 April, 2013 Mr Lewis made an appointment at the same medical practice, where he saw Dr Rhandy Cabading.  Doctor Cabading's records for this appointment included the following comments:

"01-Apr-2013

Here for ff-up

said he feels a lot of aches/ headache/ tingling/ numbness arms

sharp shooting pains scalp

been on waiting list but he was found out

was removed from app at RBWH insufficient records

adv to fax his CT scan

and adv rehab nxt time

adv to se his usual LMO

here

needs PT support"

…

And in a letter to Prince Charles Hospital Orthapaedic Clinic he wrote:

"Thank you for seeing Mr Lewis for ff-up with his previous referral .pt re-presented again c/o his constant pains over the neck for few mos (sic) now, unable to work also asstd with sharp shooting pains over the middle aspect C spine radiates toward the scalp occipital area with tingling, numbness in the arms for the past 4 weeks. This patient has been very active at work before, worried about his family needs, he couldn't work his usual activities anymore, he needs help and support. He might need MRI and Nerve conduction studies to exclude nerve entrapment/spinal stenosis. Many thanks for ongoing care, see attached CT scan report. Their details are as follows:

Past medical history

Spondylosis?

Deg changes C spine

Allergies and Medical Warnings

Family & Social History

-

Medications

Thank you for seeing this…

I would appreciate your opinion.

With kind regards

Dr Rhandy Cabading".

  1. [43]
    Later, on 22 April 2013, Dr Zaer recorded the following comments:

"22-Apr-2013

     Needs new referral

     Obx: Referral with hist".

And in a letter to Prince Charles Hospital Orthapaedic Clinic:

"Dear Colleagues

….

Thank you for seeing Mr Lewis. He presented again c/o his constant pains over the neck for few mos now, unable to work also asstd with sharp shooting pains over the middle aspect C spine radiates toward the occipital area with tingling, numbness in the arms for the past 4 weeks (emphasis added). This patient has been very active at work before, worried about his family needs, he couldn't work his usual activities anymore, he needs help and support. He might need MRI and Nerve conduction studies to exclude nerve entrapment/ spinal stenosis. Many thanks for ongoing care, See attached CT scan report.

I would appreciate your opinion.

With kind regards

Dr Farzin Zaer

MBBS, FRACGP

225278FY".

  1. [44]
    Under cross examination Mr Lewis confirmed he was unable to do anything during the four week period referred to in the correspondence by his respective GP's unless he had a good day.  He took pain killers to reduce the pain but said they didn't really assist with the stiffness in his neck and shoulders.  Mr Lewis was subsequently shown a Facebook video clip which was date stamped 10March 2013, where he could be observed on or around this time riding his stepson's new BMX bike with some ease at the front of his home. He said he recalled going back to bed after he rode the bike and said "it was wrong to do it" but he had done it for his stepson.
  1. [45]
    In respect of non-work hobbies, under cross-examination Mr Lewis told the Commission he was involved in drag racing for a short period in 1994 and 1995 where the car he drove would accelerate from zero to 120 miles per hour in 10 or so seconds.  More recently, with his wife Cathy, Mr Lewis facilitated an old school high performance car show.
  1. [46]
    Mr Lewis acknowledged he previously reported to Dr Hughes in July 2013 he had experienced neck pain for a period of ten years, with the pain and symptoms getting progressively worse over that time.  Further, that he had also reported that some 15 years ago a tyre had dropped on his head at work but was unsure as to whether the symptoms started after that event, but had certainly not started before the event.  These comments were somewhat at odds with his earlier evidence in respect of his headache symptoms commencing immediately after the tyre incident.  In explanation, Mr Lewis said he wasn't too sure when the tyre had dropped on his head and he was simply trying to give some information to the Doctor so he would get on with his testing.  Mr Lewis also acknowledged he had not referred to the tyre incident in his original Workers Compensation application but insisted he told WorkCover about the incident when he spoke to a representative over the phone.

Medical Evidence

  1. [47]
    Mr Lewis was subsequently referred to an Orthopaedic Outpatient's Clinic at Prince Charles Hospital in late April 2013.  In his referral correspondence to the hospital, identified from Mr Lewis's medical notes, Dr Zaer highlighted numbness in Mr Lewis's arms for the previous four weeks and sharp shooting pains over the middle aspect of his cervical spine.
  1. [48]
    In his handwritten notes of 5 July 2013, Dr Hughes recorded in the medical notes that Mr Lewis reported a history of neck pain over the previous ten years.  Other history reported to Dr Hughes by Mr Lewis during the consultation included "tyre dropped on head 15 years ago, ?sx started after that, not before".
  1. [49]
    In his letter to Dr Zaer, dated 9 July 2013, evidenced in the medical notes, Dr Hughes documented the following:
  • He [Mr Lewis] presents with neck pain;
  • He doesn't describe any paraethesia or weakness in his arms;
  • He tells me 15 years ago he had a tyre that dropped onto his head and he is unsure as to whether the symptoms started after that event but they certainly didn't start before the event;
  • ... a CT scan of his neck which shows degenerative changes in most articulations but particularly his C5/6 there is osteophytes and minor disc bulging posteriorly;
  • My impression is he had a degenerative cervical spine with no acute myelopathic symptoms….
  1. [50]
    Under cross-examination Dr Hughes indicated he was not in a position to say whether the arthritic and degenerative changes noted in Mr Lewis CT scans occurred due to gradual degeneration or whether some form of trauma had brought on the degeneration.  Although, later in re-examination, Dr Hughes indicated that it was reasonable to assume there may have been some trauma to Mr Lewis's cervical spine which had led to the changes.
  1. [51]
    Dr Hughes acknowledged he did not obtain any specific details from Mr Lewis in respect of the types of duties he undertook in his work which could be characterised as heavy duties.  Notwithstanding a report from Dr Campbell which confirmed Mr Lewis had walked with a slow and cautious gait, Dr Hughes also noted his gait had been normal when he had examined him, but explained the inconsistency could arise due to varying pain levels.
  1. [52]
    Dr Hughes was asked about his views in respect of the Facebook clip showing Mr Lewis riding around on a BMX bike.  He acknowledged there were no signs of Mr Lewis experiencing a headache at the time.  Whilst he wasn't of the view the DVD revealed whether Mr Lewis could be seen moving freely, he acknowledged he didn't appear to be disabled in the clip.
  1. [53]
    In a further letter to Dr Zaer prepared by a Dr Sara Martinez Martos from the Prince Charles Hospital dated 24 July 2013 (Exhibit 15), Dr Martos noted the following:
  • …he has been developing neck pain for the last few years which gives him headaches and radicular pain;
  • …results of his MRI which demonstrates bilateral narrowing of the exiting foramina on his C5/C6 level of his cervical spine;
  • …MRI also shows degenerative changes at the level of the C5/C6 with no further changes elsewhere;
  • …Mr Lewis suffers from chronic lumbar pain that is probably related more to muscular problems; and
  • … I think that his cervical disease might be related with his work of heavy duties for many years.
  1. [54]
    Mr Lewis was later referred to neurosurgeon Dr Scott Campbell for a medico-legal report for the purposes of the hearing.  In his report dated 28 November 2013, Dr Campbell recorded that the reported accident occurred over a period of time from 1995 through to February 2011.  The doctor's notes record:  

"Mr Kevin Lewis stated that he commenced work as tyre fitter for a tyre mechanical company in 1995…Soon after commencing his duties he was struck by a falling tyre and contact was with his head and neck region resulting in the onset of neck pain and headaches. His symptoms were aggravated thereafter by performing repetitive manual handling tasks through the course of his work shift."

  1. [55]
    Dr Campbell's report noted CT and MRI scans of the cervical spine as revealing C5/6 degenerative changes.  In his opinion, the most significant contributing factor to Mr Lewis's ongoing neck pain and headache symptoms were the repetitive manual handling tasks he undertook at work over a period of time from 1995.
  1. [56]
    Under cross-examination, Dr Campbell acknowledged that if Mr Lewis's symptoms had commenced on or around 2002 or 2003 which was one of the dates referred to in a prior affidavit in respect of the commencement of his symptoms, then this would "remove the falling tyre as a cause of any of his symptoms."
  1. [57]
    Dr Campbell was also of the opinion that the gardening incident where Mr Lewis had been bending over and felt faint may well have been an aggravation of his pre-existing symptoms.

Consideration and Conclusions

  1. [58]
    For Mr Lewis to succeed in his Appeal he must be able to prove, on the balance of probabilities that:
  1. (a)
    he suffered an injury to his cervical spine, namely multi-disc neck damage over a period of time which led to symptoms such as ongoing headaches and migraines, a sore neck and shoulder;
  2. (b)
    that the injury arose out of, or in the course of, his employment with Keith McKay's Tyres and Mechanical; and
  3. (c)
    that his employment was a significant contributing factor to the injury.
  1. [59]
    Mr Rhead, Counsel for the Regulator has submitted there is not enough evidence before the Commission upon which it could be found on the balance of probabilities, that the Appellant's employment was a significant contributing factor to his cervical spine injury which Mr Lewis claims occurred initially as a result of a tyre falling on his head and was subsequently aggravated by manual intensive work in the course of his employment.
  2. [60]
    Mr Morris, Counsel for the Appellant argued it is clear Mr Lewis has suffered a workplace injury in that he was struck by a tyre in the workplace.  Further, that the ongoing manual nature of Mr Lewis's employment activities, are the most plausible explanation for the injuries suffered by Mr Lewis.
  1. [61]
    There is no contest, given the medical opinion of Dr Campbell, that Mr Lewis has been diagnosed with a muscular-skeletal injury of the cervical spine and muscular tension headaches.  The accompanying CT and MR scan investigations in July 2013 confirm mid cervical and C5/6 degenerative changes.  Whilst Dr Campbell's report linked the occurrence of Mr Lewis's injury to him being struck by a tyre falling from above and the subsequent aggravation of his cervical spine thereafter in the performance of his repetitive manual handling tasks at work, there must be reasonable proof that the incident happened in the manner, place and approximate time described for the medical evidence to have any weight.  The key point on the matter was examined in Pollock v Wellington[11] where Anderson J. posited:

"…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."[12]

  1. [62]
    With that in mind it is not sufficient to rely on the statement that something happened, the party alleging the "fact" must provide some direct or corroborative material that demonstrates the existence of the fact in issue.[13]  As such, it is Mr Lewis that bears the onus of proving that it is more likely than not[14] that he has an "injury" as defined in s 32 of the Act.

Did the tyre incident occur and did it result in trauma to Mr Lewis cervical spine?

  1. [63]
    Mr Rhead, Counsel for the Regulator, argued the various documents submitted by the Appellant in support of his worker's compensation and related claims between 31 May 2013 and 29 August 2013 make no mention of him being hit on the head by a tyre.  Significantly, Mr Rhead contends that immediately after being allegedly hit by a tyre falling on his head Mr Lewis did not:
  1. (a)
    cause to create an injury or incident form;
  2. (b)
    consult medical practitioners;
  3. (c)
    need to take any time off work;
  4. (d)
    apply for Worker's Compensation.
  1. [64]
    The Regulator also argued that Mr Lewis waited for nearly 2 years and 3 months after he had ceased working for the employer before applying for Workers Compensation and only after he ceased working for another employer, Mr Chris Lew.
  1. [65]
    Mr Morris, on behalf of the Appellant, submitted it must be accepted by the Commission that Mr Lewis was struck in the head by a tyre in 1999.  In support of this position, Mr Morris pointed to:
  1. (a)
    the general acceptance across the evidence that the throwing of tyres was a common occurrence in the workplace;
  2. (b)
    Ms Atkins's recollection of Mr Lewis's report of the incident; and
  3. (c)
    the failure of the Regulator to call Mr Adrian Dennis to refute the tyre incident.
  1. [66]
    However, when considering the relevant authorities in conjunction with the evidence and materials before the Commission, I have formed the view Mr Lewis has not discharged the necessary onus of proving that it is more likely than not that the tyre incident occurred at the time and in the manner alleged.
  1. [67]
    Whilst Mr Lewis was able to identify on the day of the hearing a possible year when the incident may have occurred, his evidence in respect of when it occurred was still somewhat vague.  He was unable to point to a month or date and his recall of the actual year, in my view, was not overly persuasive.  There were also inconsistencies in not only in the historical reports he provided to his various doctors in respect of the date or period when the tyre injury occurred (if at all) but also when the symptoms associated with the cervical spine injury appeared.  For example, the reported dates of the tyre injury, depending on which report or document was considered during the hearing ranged from sometime after 1995, to 1999, to 2002.
  1. [68]
    The notes retained by his GP's, Dr Zaer and Dr Cabading contained no reference to the tyre incident, though under cross-examination Dr Zaer indicated it had been mentioned to him by Mr Lewis at some point but he had failed to include it in his notes. Mr Lewis's claim form for Worker's Compensation dated 31 May 2014 also contained no reference to the tyre injury incident.  
  1. [69]
    In his correspondence dated 9 July 2013, Dr Hughes's comments in respect of the reported history by Dr Lewis included, "he tells me 15 years ago he had a tyre that dropped onto his head and he is unsure as to whether the symptoms started after that event but they certainly didn't start before the event".  Mr Lewis's evidence during the course of the hearing in respect of how the tyre incident occurred and when the headaches and pain appeared following the incident was clearer than the account he provided to Dr Hughes and Dr Campbell however on balance, the reports of the alleged tyre incident, particularly in relation to when it occurred, lacked consistency.
  1. [70]
    Ms Atkins's evidence in relation to any recollection she had of Mr Lewis's report of the tyre incident was also ambiguous and somewhat vague.  Whilst it is clear that tyres were being thrown around by employees at McKay's Tyres when they were being stored or moved, Ms Atkins wasn't able to tell the Commission if she was still working with Keith McKay's Tyres at the time she become aware of the tyre incident.  Nor was Ms Atkins able to tell the Commission with any certainty when she became aware of the tyre incident. 
  1. [71]
    Mr Adrian Dennis, the brother of Mr Leon Dennis, being the other worker who was present at the time Mr Lewis claimed he was hit by a tyre, was not called by the Appellant to verify the incident.  Mr Leon Dennis was also unable to recall any conversation with Mr Lewis in respect of the tyre event notwithstanding the Appellant's evidence that they had a conversation about the incident.
  1. [72]
    In combination with the absence of any contemporaneous reports of the incident; the subsequent inconsistencies contained in the various historical reports provided to his treating doctors in respect of the timing of the tyre incident; the Appellant's difficulty recalling with any real certainty when the tyre incident occurred and the lack of medical attention sought at the time, it's not possible to determine on the materials before the Commission that the tyre incident occurred in the manner or at the time described by Mr Lewis.
  1. [73]
    Even if I was to be wrong on this point and the tyre incident did occur some fifteen years prior to Mr Lewis lodging his claim in the manner he reported to Dr Hughes, Dr Campbell acknowledged under cross-examination that the subsequent delay in the onset of symptoms for five years, as also reported by Mr Lewis to Dr Hughes, meant that the tyre incident would have had minimal impact on his overall symptomatology.  Likewise, under cross-examination, Dr Hughes was not prepared to say with any degree of conviction whether the arthritic and degenerative changes noted in Mr Lewis's CT scans occurred due to some form of trauma, such as the tyre incident.
  1. [74]
    Aside from his evidence on the day of the hearing that he took Panadol and other pain medication in the weeks following the tyre incident, Mr Lewis was also unable to provide any medical records or reports highlighting the onset of any symptoms at the time he indicated the tyre incident occurred.  Further, although both Ms Atkins and Mr Dennis recalled Mr Lewis taking Panadol at work, she was unable to say with any certainty at which point in her or Mr Lewis's employment she had observed him taking Panadol.  Mr Dennis was of the view Mr Lewis had not exhibited any signs of having neck or back pain but had suffered from headaches "for a long, long time.  Even when he was work for - when Anita McKay owned it.  So yeah, he used to carry around Panadol then."[15]  Mr Dennis said he was aware Mr Lewis took Panadol for his migraines, but confirmed he had not complained the migraines were a result of his work activities.

Did the repetitive actions of tyre fitting and lifting heavy wheels cause the injury?

  1. [75]
    There is no contest Mr Lewis's duties over the course of his initial employment at McKay's Tyres included delivery driving, driveway servicing, lifting, stacking and fitting tyres.  There was some dispute during the proceedings over the weight of the tyres, the extent of the manual labour required to de-bead and change the tyres and the ratio of Mr Lewis duties in so far as he was required to deliver and change tyres.
  1. [76]
    Whilst Mr Lewis initially estimated the weight of some of the tyres he was required to lift or change at between 50 to 70kgs, he later acknowledged they were closer to 20 to 30kgs. Both Mr Dennis and Ms Atkins gave evidence the passenger tyres weighed even less.  Mr Dennis's evidence was that it was rare for employees to be required to change large truck tyres and further, that the various machines in the workshop provided support to tyre fitters in the performance of their duties.  On any measure though, even with the assistance of other employees, beading machines and hoists, the role most certainly could be classified as one that is quite physical. 
  1. [77]
    That aside, I'm not satisfied on the materials before the Commission that Mr Lewis has sufficiently discharged his obligation to prove, on the balance of probabilities that it is more likely than not that his cervical spine injury and accompanying neck and headache symptoms fall within the definition of "injury" as defined in s 32 of the Act. 
  1. [78]
    Whether Mr Lewis's employment was a significant contributing factor to any injury suffered is a question of mixed law and fact.[16]
  1. [79]
    The difficulty I have with Mr Morris's submissions in respect of the Appellant's employment and in particular, the view that the manual duties performed by Mr Lewis at McKay's Tyres were a significant contributing factor to his injury include:
  1. (a)
    the absence of any medical reports or contemporaneous notes in respect of Mr Lewis's neck, shoulder or headache pain during the period he was employed by McKay's Tyres notwithstanding he acknowledged visiting doctors in the same period for other reasons;
  2. (b)
    the absence of any injury or incident reports over the course of Mr Lewis's employment noting any neck or shoulder pain;
  3. (c)
    the absence of any meaningful corroborative reports from fellow work colleagues in respect of any reported neck or shoulder pain during the course of Mr Lewis's employment;
  4. (d)
    the presence of CT and MRI scans confirming cervical degenerative changes;
  5. (e)
    the failure of Mr Lewis to make any claim in relation to his cervical spine injury for a period of more than two years after he ceased his employment with McKay's Tyres and only after he had ceased employment with his previous employer, Mr Chris Lew; and
  6. (f)
    the inconsistency in Mr Lewis's reports to his various treating doctors in respect of the emergence and nature of his neck, shoulder and headache pain.
  1. [80]
    Whilst both Dr Campbell and Dr Hughes were prepared to draw a link between Mr Lewis's performance of repetitive manual duties and the aggravation of his cervical neck injury, these conclusions were developed in the context of being also advised of a tyre falling on Mr Lewis's head.  Further, neither practitioner took a detailed account of the duties performed by Mr Lewis during the course of his duties.
  1. [81]
    As such, I consider Mr Lewis has failed to sufficiently discharge his obligation to prove on the balance of probabilities that he sustained an injury to his cervical spine over a period of time between 1995 and 2011, which arose out of, or in the course of his employment with McKay's Tyres, and that his employment was a significant contributing factor to the cervical spine injury.
  1. [82]
    Accordingly, I order:
    1. the appeal is dismissed;
    2. the decision of the Worker's Compensation Regulator of 20 August 2013 is confirmed;
    3. 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 Respondent has the liberty to apply.

Footnotes

[1] [2015] QIRC 053.

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

[3] (2004) 177 QGIG 769.

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

[5] (1997) 156 QGIG 100.

[6] 186 QGIG 512 [513].

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

[8] Transcript of proceedings, Kevin Lewis v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/272, Commissioner Knight, 23 January 2014) 12 (K. Lewis).

[9] Transcript of proceedings, Kevin Lewis v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/272, Commissioner Knight, 23 January 2014) 22 (K. Lewis).

[10] Transcript of proceedings, Kevin Lewis v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/272, Commissioner Knight, 23 January 2014) 129 (L.K. Dennis).

[11] (1996) 15 WAR 1.

[12] Pollock v Wellington (1996) 15 WAR 1 at 3; Kudryavtseva v Blackwood [2015] QIRC 053 [10] citing Coombes v Q-Comp (2007) 185 QGIG 680, 681 (Hall P).

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

[14] Bradshaw v McEwans Pty Ltd (1952) 217 ALR 1.

[15] Transcript of proceedings, Kevin Lewis v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/272, Commissioner Knight, 23 January 2014) 129 (L.K. Dennis).

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

Close

Editorial Notes

  • Published Case Name:

    Kevin Lewis v Simon Blackwood (Workers' Compensation Regulator)

  • Shortened Case Name:

    Lewis v Workers' Compensation Regulator

  • MNC:

    [2015] QIRC 98

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    26 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 (1952) 27 ALR 1
2 citations
Jump To
Cite 1 - (1952) 27 ALR 1
Cite 2 - (1952) 27 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
3 citations
Jump To
Cite 1 - [2006] QCA 48
Cite 2 - [2006] 1 Qd R 519
Cite 3 - [2006] 1 Qd R 519
Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181
1 citation
Jump To
Cite 1 - (1996) 152 QGIG 1181
Pollock v Wellington (1996) 15 WAR 1
3 citations
Jump To
Cite 1 - (1996) 15 WAR 1
Cite 2 - (1996) 15 WAR 1
Cite 3 - (1996) 15 WAR 1
Stephen Horace MacDonald v Q-COMP (2) (2008) 188 QGIG 180
2 citations
Jump To
Cite 1 - (2008) 188 QGIG 180
Cite 2 - (2008) 188 QGIG 180
Tophams Ltd v Sefton (1966) 1 All E. R. 1039
1 citation
Jump To
Cite 1 - (1966) 1 All E. R. 1039

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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