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Northern Iron and Brass Foundry Pty Ltd v Simon Blackwood[2016] QIRC 41

Northern Iron and Brass Foundry Pty Ltd v Simon Blackwood[2016] QIRC 41

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Northern Iron and Brass Foundry Pty Ltd v Simon Blackwood [2016] QIRC 041

PARTIES: 

Northern Iron and Brass Foundry Pty Ltd

(Appellant)

v

Simon Blackwood (Workers' Compensation Regulator)

(Respondent)

CASE NO:

WC/2014/352

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

8 April 2016

HEARING DATES:

27, 28, 29, 30 April and 1 May 2015

12 June 2015 (Respondent's written submissions)

15 June 2015 (Appellant's written submissions)

19 June 2015 (Respondent's written submissions in reply)

HEARD AT:

Innisfail

MEMBER:

Industrial Commissioner Neate

ORDERS:

  1. The Appeal is dismissed.
  2. The decision of the Respondent is confirmed.
  3. The Appellant is to pay the Respondent's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION - appeal by employer - appellant bears onus of proof - whether worker suffered an "injury" - pre-existing degenerative cervical condition - whether injury arose out of, or in the course of, employment - whether employment was a significant contributing factor to the injury

CASES:

Workers' Compensation and Rehabilitation Act 2003 s 32

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

Avis v WorkCover Queensland (2000) 165 QGIG 788

Calder v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 101

Carman v Q-COMP (2007) 186 QGIG 512

Chattin v WorkCover Queensland (1999) 161 QGIG 531

Commissioner of Police v David Rea [2008] NSWCA 199

Cooper (as the legal representative of the late Leslie Cooper) v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 38

Cronig v Workers' Compensation Board of Queensland [1997] 156 QGIG 100

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

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

Holtman v Sampson [1985] 2 Qd R 472

Joyce v Yeomans [1981] 1 WLR 549

Kavanagh v The Commonwealth (1960) 103 CLR 547

Lackey v WorkCover (2000) 165 QGIG 2

MacArthur v WorkCover Queensland (2001) 167 QGIG 100

Monroe Australia v Campbell (1995) 65 SASR 16

Myer Holdings Ltd AND Q-COMP (WC/2013/118) - Decision http://www.qirc.qld.gov.au

Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48

Newman v Blackwood [2015] ICQ 014

Nilsson v Q-Comp (2008) 189 QGIG 523

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

Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301

QANTAS Airways Limited v Q-COMP and Blanch [2009] QIC 20

Q-COMP v Green (2008) 198 QGIG 747

Ramsay v Watson (1961) 108 CLR 642

Sotiroulis v Kosac (1978) 80 LSJS 112

State of Queensland (Department of Communities Disability Services) AND Q-COMP and Saskia Germaine Bettels (WC/2011/247) - Decision http://www.qirc.qld.gov.au

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

State of Queensland AND Q-COMP and Mrs B (C/2013/2) - Decision http://www.qirc.qld.gov.au

WorkCover Queensland v BHP (Qld) Workers' Compensation Unit [2002] QIC 27

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

APPEARANCES:

Mr A. McLean Williams, counsel instructed by Human A.S.S.E.T Solutions

Ms D. Callaghan, counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator)

Decision

 Background to proceedings

  1. Scott Geoffrey Brown was employed by Northern Iron and Brass Foundry Pty Ltd ("the Appellant") at its foundry in Innisfail.  Mr Brown claims that he was injured at work on 8 February 2014.  He made an Application for Compensation on                         16 May 2014 for "upper back, disc displacement, prolapse, hernia" which occurred at work.  In its decision dated 11 June 2014, WorkCover Queensland rejected the application. 
  1. Mr Brown applied to the Workers' Compensation Regulator ("the Respondent") for a review of that decision.  In its decision made on 4 November 2014, and sent to Mr Brown in a letter dated 17 November 2014, the Respondent set aside the decision of WorkCover Queensland and substituted a decision to accept the Application for Compensation.
  1. The Appellant has appealed to the Queensland Industrial Relations Commission ("the Commission") from the Respondent's decision.  The appeal is made under the Workers' Compensation and Rehabilitation Act 2003 ("the Act") and asks the Commission to order that the decision of the Respondent be set aside, thus reinstating the original decision by WorkCover Queensland.
  1. The grounds of appeal were, in essence, that:
  1. there was no "event" as described in the Act;
  1. there was no "injury" within the meaning of s 32 of the Act; and
  1. in the alternative, to the extent that Mr Brown sustained a personal injury (which is not admitted), he sustained such injury other than in the course of his employment.

Nature and conduct of the appeal

  1. The evidence in these proceedings must be assessed, and the appeal must be decided, by reference to the definition of "injury" in the Act, and the law governing appeals of this type.
  1. Definition of "injury": At the relevant time, s 32 of the Act provided:

 "32  Meaning of injury

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

…

  1. Injury includes the following -

…

(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. (i)
    a personal injury;
  2. (ii)
    a disease;
  3. (iii)
    a medical condition if the condition becomes a personal injury               or disease because of the aggravation; …"
  1. Nature of the hearing and onus of proof: The hearing of the appeal was conducted as a hearing de novo.
  1. On the current state of the authorities it is clear that in cases such as this, where the employer is the appellant and the decision appealed against is a decision to accept the claim for compensation, the employer bears the onus of proving on the balance of probabilities that the claim is not one for acceptance.[1]  In some cases it would fall to the employer appellant to prove that:
  1. the person claiming compensation was not a "worker" within the meaning of the Act at the relevant time; or
  1. the person claiming compensation did not sustain an "injury" within the meaning of the act at the relevant time; or
  1. if they did sustain an injury, the injury either did not arise out of or in the course of the person's employment or the injury was one to which employment was not a significant contributing factor.
  1. In this case, the Appellant concedes that:
  1. Mr Brown qualifies as a "worker" as defined by s 11 of the Act; and
  1. Mr Brown's neck condition (namely an osteophytic complex with associated disc bulge at the C6/C7 level in his cervical spine) might,  if it arose out of or in the course of his employment in circumstances where that employment was also a significant contributing factor, qualify as an "injury" for the purposes of s 32(1) of the Act.
  1. However, the Appellant contends that Mr Brown's condition did not arise out of, or in the course of, his employment and his employment is not a significant contributing factor to that condition.  In essence, the Appellant contends that Mr Brown's condition is unrelated to his employment.  It is a degenerative spinal condition where the cervical disc has prolapsed as a consequence of ordinary neck movements.  For his claim for compensation to be accepted, it is not enough that Mr Brown's injury occurred at work.  His employment needs to be more than something that is just part of the backdrop.[2]
  1. Because the Appellant bears the onus of proof, the Appellant can only succeed in this appeal if it satisfies the Commission on the balance of probabilities that:
  1. the event at the foundry did not occur on 8 February 2014;
  1. if such an event occurred, it was not a significant contributing factor to the neck condition (including the disc prolapse at C6-C7) suffered by       Mr Brown. 

 Factual context for resolving the appeal

  1. In order to understand the reasons for the issue in this case, and the basis on which the issue could be resolved, it is appropriate to summarise relevant evidence about:
  1. the type of work undertaken at the foundry;
  1. the usual procedures to be followed at the foundry in relation to injuries suffered by workers;
  1. events, conversations and the preparation of various documents in relation to the alleged workplace event in the chronological sequence in which they occurred; and
  1. boxing and boxing training undertaken by Mr Brown before and after the alleged workplace event.

 Operations at the foundry

  1. The Appellant operates a foundry which manufactures several types of steel pipes.  As part of its operations, moulds are prepared in sections of the foundry, including the section known as BQ5.  In essence, two heavy metal moulding boxes (known as the top box and the bottom box) are prepared on separate pieces of machinery at about waist height.  Each moulding box is filled with dense green sand, and a shape is impressed into each container of sand.  The bottom box is moved along rollers and then transferred (using an overhead crane) by lowering it from that piece of machinery onto a conveyor line comprising a series of rollers and narrow plates fixed to the floor of the foundry.  The bottom box is moved by a worker along the rollers to a position between the two machines.  The core is lifted from a nearby table by an overhead crane (which operates only up and down) and is guided by a worker toward the bottom box on the conveyor line.  The core is lowered, using the overhead crane, into the cavity in the green sand.  After the bottom box and core are adjusted by the worker (for example, by trimming or adding sand when needed), the top box is fitted to the bottom box.  The two boxes are locked together by heavy metal hooks that are hammered into position, and the unit is moved by hand along the conveyor to another area where it is stored for transfer to the area where the molten metal is inserted and the pipe fitting is made.
  1. The manager of the foundry is Joseph Vecchio.  He has worked there for more than 27 years and commenced as manager in January 2014.  Two people, including Garry Chioatto, are second-in-command to Mr Vecchio.  Mr Chioatto is the managing superintendent.  He manages the daily operations of the manufacturing side of the plant.  In particular, he manages the three moulding lines (QCT, BQ5 and Floor 1).  Salvo Fichera has been the workplace health and safety officer since April 2012.  He reports directly to Mr Vecchio.
  1. Mr Brown worked on the moulding lines.  Mr Vecchio said that, although Mr Brown had not finished his training as a qualified moulder, his skills were of such a high standard that he was paid as a tradesman. 

Reporting and treatment of injuries of workers at the foundry

  1. Oral evidence about the Appellant's practices for reporting injuries and dealing with injured workers was given by Mr Vecchio, Mr Chioatto and Mr Fichera.
  1. For the purpose of this appeal, it is sufficient to note that if a worker has an injury, the worker should inform their supervisor, or the workplace health and safety officer      (Mr Fichera) if the injury is not minor, or another worker.  According to Mr Vecchio, an employee should advise management immediately (preferably within 15 minutes) after an injury occurs, no matter how serious it is. 
  1. Oral evidence was given by Mr Brown and others that he undertook some workplace training in relation to, among other things, safety matters and the need to report any injury, even minor injuries.  His understanding of that part of the training is reflected in a written document Introduction to Safety: Employee Induction completed and signed by him on 22 August 2011 (Exhibit 18).

Chronological sequence of events in relation to Mr Brown's alleged injury

  1. The foundry usually operates each Saturday.  Although it is not compulsory for employees to work each Saturday, many of them do and most of them are paid overtime rates.  Those who work on a Saturday are expected to work a minimum of four hours and up to six hours, between 6.00 am until noon.  The Appellant's records of Mr Brown's working hours between 1 January and 31 May 2014 (Exhibit 7) show that he:
  1. worked at the foundry on nine of the 12 Saturdays from 25 January 2014 until 12 April 2014; and
  1. on those occasions, he worked for periods of approximately five, five and a half or six hours, usually finishing about noon.
  1. Saturday, 8 February 2014 was no exception.  On that morning, Mr Brown punched in at 6.13 am.  According to Mr Brown, he started on the QCT moulding line where he did the normal duties of coring up, preparing 40 or 50 moulds.  Apparently the quality of Mr Brown's coring up work was very good.  He continued with that work until about 9.00 am, when he cleaned up around that line in accordance with standard procedure.  After smoko he went to the BQ5 moulding line as he was "basically looking for something to do."  By his account, the employees did not generally have strict instructions on a Saturday.  He saw that Andrew Ghietti and Gurjinda Singh were working on the BQ5 line.  Because it takes three people to operate that line, he "jumped straight in there."  Mr Brown had worked on the BQ5 line for five or six months, and this was not the first time he had helped Mr Ghietti by moving a box to the end of the roller.
  1. Mr Ghietti said that Mr Brown could help him because Mr Ghietti was "fairly new to the industry."  At that time, Mr Ghietti was making the bottom box (or "drag box") and probably doing most of the coring.  Mr Singh was making the top box in another part of that area.    Mr Ghietti asked Mr Brown to help him complete his job as he was having trouble making the mould.  One of the tasks was to get the core into the mould, and to assist Mr Ghietti make the mould because a section kept breaking. At that stage Mr Brown had no moulds to core up, so he had access to the bottom box to bring it down so that Mr Ghietti could prepare the next box (by scraping off the old green sand[3] along the face of the box so that it sits flush on the pattern).  That, Mr Brown suggested, would speed up the process.  He estimated that each box would weigh somewhere between 200 kilograms and 250 kilograms when compressed with wet sand. 
  1. As I understand his evidence, Mr Brown:
  1. started at the position where coring up occurs (i.e., at the lower row of rollers on the other side from where Mr Ghietti was working); and
  1. having no moulds to core up, went over to the rollers where Mr Ghietti was preparing bottom boxes.
  1. According to Mr Brown, Mr Ghietti had started the process of compression and had walked off to the left to prepare another empty box.  Mr Brown moved the bottom box which Mr Ghietti had prepared along the roller line at approximately chest height  from the area in which the mould is compressed to where it could be accessed with a crane, which would assist moving the bottom box to the place where it could be cored up.[4]   The box weighed too much to move with one arm.  Mr Brown said that he needed to use his bodyweight or some other assistance. He dragged the box with the made mould to the end of the line by grabbing it with his left hand and, because of the weight of the box, grabbing something else (possibly part of the the fixed metal frame that supports the rollers) with his right hand to assist him to get the box to the end of the line.  He was facing left and proceeded to pull the box.  As he started to get the weight moving, he felt "a pain around - sort of - I could say the shoulder, but very close to the neck."  That was the first such box he moved on the BQ5 line that morning.  He continued to work and "progressively, the muscle tightened."  He was "unsure of what was going on," but knew he was "in a lot of pain."  Mr Brown thinks he only got one more box done before the "tightness of the muscle progressed rapidly, and the pain also." 
  1. Mr Brown recalled telling Mr Ghietti that he had done something to his neck, was in a lot of pain, and did not think he could continue.  He also recalled Mr Ghietti saying that they only had two jobs left, and after some banter asking Mr Brown to "just push through."  Mr Brown did not do any major lifting or pushing after the conversation.  He told Mr Ghietti that he was sorry but he could not continue.  It should be noted that the foundry is a noisy place and workers wear hearing protection.  In those circumstances, according to Mr Brown, "it's not like you can have a full-blown conversation."
  1. According to Mr Brown, Mr Ghietti suggested that he see Mr Chioatto, the foundry foreman.  Mr Brown said that he spoke to Mr Chioatto twice: 
  1. straight after he spoke to Mr Ghietti, when Mr Chioatto delivered a pallet of cores on the forklift, Mr Brown told him that he was feeling "a little bit sore in the neck"; 
  1. about 20 minutes to half an hour later, Mr Brown walked away from the BQ5 line and found Mr Chioatto, who was on his way to somewhere, near the pattern shop.  At about 11.00am, he told Mr Chioatto that there was something wrong with his neck, he did not know what it was, he was in too much pain and could not continue, and that he needed to go home. It was standard procedure to inform someone before leaving the site.            Mr Chioatto replied that he hoped it would get better. 

Mr Brown then went home.  That was an early finish for him. 

  1. The Appellant's records of his working hours showed that he punched out at            11.19  am, some five hours after punching in (Exhibit 7).
  1. Mr Brown said that when he went home, he told his wife what had happened, had a shower, took some painkilling medication, lay down and slept.
  1. Three other witnesses gave oral evidence in relation to the work performed by             Mr Brown on the morning of 8 February 2014, the alleged incident and whether          Mr Brown reported that incident to another worker or manager.
  1. Mr Ghietti is a green sand operator at the foundry.  He commenced employment on 1 November 2013, and started on the QTC smaller moulding line.  Subsequently he went to BQ5.  He said he did not think that performing the jobs on the bottom box was "heavy work," but that "there is manual work" involved. In his view, "once you're well-trained and experienced, if you get the right position" then moving the bottom boxes along the rollers is "quite easy."  They are "relatively easy once you know what you're doing."
  1. On the morning of 8 February 2014, Mr Ghietti was preparing boxes on the BQ5 line by inserting cores in the bottom box (also referred to as the drag set up) and then putting on the top box.  Initially he was assisted only by Mr Singh, who worked on the top box section. Mr Ghietti realised that he was travelling behind in workload because he had damaged several bottom boxes by breaking the moulds when he was lowering the cores into position.  After smoko, at around 10.00 am (but before 10.30am), he saw Mr Brown walking past, and asked him to assist in putting cores into the mould.  The main purpose of asking Mr Brown to assist by putting in the cores was that Mr Ghietti could concentrate on making the moulds and getting his numbers up so that he could meet his quota for that day.  Mr Ghietti asked Mr Brown (rather than other people who were walking past) to assist because he was a skilled tradesmen who knew what needed to be done.
  1. Mr Brown agreed and went to where Mr Ghietti was having trouble putting the strappings on the core.  He showed Mr Ghietti the best way of doing it. 
  1. Mr Ghietti went back to making up the boxes at the drag.  Mr Brown stood on the other side of the rollers from Mr Ghietti where he was strapping up the cores.                Mr Ghietti thought there was at least one box made up.  After Mr Ghietti made up two or three boxes, he "looked over to see [Mr Brown] putting the boxes down" in the location where Mr Brown was strapping the cores.  Mr Brown said to him "Look, Andrew, I'm feeling a bit sore."  He indicated the area at the top of his left shoulder.  Mr Ghietti replied "Well, how are you going? Can you push through?"  After a little bit of banter, Mr Ghietti went back to making boxes.
  1. Mr Ghietti could not recall Mr Brown coming from the other side of the rollers to where Mr Ghietti was working.  Nor could he recall Mr Brown pulling a box from the compactor along the rollers, but said that Mr Brown had "cored up" one, two or three boxes.  Mr Ghietti also gave evidence about the general practice that when a third person comes over to assist, the corer will help on both sections, that is, they will help move a box on the drag machine if that is necessary so that they can do coring work. 
  1. Close to 11.00 am, Mr Brown called out to Mr Ghietti.  Mr Ghietti turned, and              Mr Brown said "I can't do this anymore". Mr Ghietti asked him to confirm that he was not "pulling a dodgy to go home early," and Mr Brown replied that he was not.  He was sore. When Mr Brown told him that he was "pulling up sore," Mr Ghietti  did not know how he hurt himself, nor did he witness him do so.
  1. Mr Ghietti referred to the general noise in the foundry.  He wears ear plugs and ear muffs.  If a person has his attention and he is looking at them, he will remove earmuffs ("if I have to") and stop the machine.  He can hear them, especially if they raise their voice.
  1. Mr Ghietti confirmed that the Appellant has a policy that if its employees injure themselves or have any issue regarding their health or safety, they "need to report it as soon as possible or as practical" to their supervisor. Mr Ghietti told Mr Brown to "go and see Garry. Make sure you let Garry know you're going."   Mr Ghietti did not see Mr Brown speak to Garry Chioatto.  Rather, according to Mr Ghietti, "Garry was not in our - in our vicinity where I could see him."  Having told Mr Brown to make sure that he let Mr Chioatto know that he was leaving, Mr Ghietta "did not see where Garry was or if he went and spoke to Garry." 
  1. Mr Chioatto oversees the operation of all three moulding lines, each of which has a supervisor.  There are about 50 people in his department.  According to Mr Chioatto, he saw Mr Brown at a pre-start or tool box meeting on 8 February 2014.  He recalled that Mr Ghietti, Mr Singh and Mr Brown were working on the BQ5 that morning.  He would have seen Mr Brown walking around a few times that morning, and "everything was going fine."  He said that Mr Brown did not tell him he was in pain or that he was going home early.  During a walk through the foundry that morning, Mr Chioatto was informed by Mr Ghietti and Mr Singh that Mr Brown had gone home early, but not the reason why.  Although it was not unusual for people to go home after four or five hours on Saturday, workers usually advise him beforehand how many hours they will work.  He can then plan to ensure that they prepare an adequate number of moulds. 
  1. In a signed statement dated 19 May 2014, Mr Chioatto replied to Mr Brown advising Mr Fichera that he reported an injury to Mr Chioatto on 8 February 2014.  He wrote:

"This is totally incorrect.  Scott made no mention of any injury of any nature on this day.  It is strict company policy that all injuries, incidents and general employee health issues are reported to the site EH&S coordinator (Salvo Fichera) to be documented and investigated."  (Exhibit 3)

  1. Mr Fichera worked at the foundry on 8 February 2014, as he did regularly on a Saturday because of the work load.  As part of his duties as a workplace health and safety officer, he keeps "clear and up-to-date diary records" in case there is later an aggravation.  He said that he did not become aware on 8 February 2014 that Mr Brown contended that he suffered an injury that day. 
  1. In a signed statement dated 19 April 2014, Mr Fichera wrote:

"I keep very clear and up to date diary records of all incidents and injuries that are reported.  Garry [Chioatto] or Colin [Lyons] made no mention of any injury that Scott obtained on that day."  (Exhibit 5)

 Mr Brown visits Innisfail Hospital

  1. According to Mr Brown, he woke up the next morning, 9 February 2014, "completely seized."  By his account, all the muscle around his neck and out to the left shoulder and radiating down his back was "completely tight" and it felt like he had a knife stuck in his back.  His wife helped him out of bed and drove him to the Innisfail Hospital. 
  1. Triage nurse: According to Mr Brown he went to the counter and when a nurse came at 10.05 am he told her what happened. His recollection was consistent with her written record.
  1. The triage report, prepared soon after he arrived, includes the following description of his presenting problem:

"Working at foundry yesterday some lifting felt muscle spam (sic - spasm) left shoulder blade and left side of neck, today painful to move neck."  (Exhibit 28)

  1. The nursing assessment records that Mr Brown:
  1. took two Nurofen on 8 February at noon but had taken no analgesia since;
  1. was self-guarding his left side chest.
  1. Mr Brown was listed as a Category 3 patient (which meant, in effect, that he should be treated within an hour of arrival).  He was discharged at 11.00 am, after seeing      Dr Aaron Frazer.  There was evidence that Dr Frazer had the triage notes at the time of the consultation.
  1. Dr Frazer:  Mr Brown gave evidence that, about an hour after speaking with the nurse, he met with a doctor.   He told the doctor that he went to work the previous day "fine" then began to feel pain, ceased work, went home, had a shower and woke up "completely seized."  It was a fairly short consultation but the doctor said he thought it was a sprained trapezium and gave Mr Brown some Valium and one week off work.  Mr Brown asked him whether he could return to normal duties after that week.  The doctor said that he could.  Mr Brown then asked him about "leisurely duties" and the doctor asked what he meant.  Mr Brown told him that he did boxing training and the doctor said that Mr Brown would be fine after one week. 
  1. According to Mr Brown's statutory declaration dated 10 September 2014, he did not lodge a WorkCover claim because the doctor told him that the injury was minor (Exhibit 19, para 20).
  1. Dr Frazer gave evidence that he had no independent recollection of Mr Brown.  His handwritten notes record that the consultation occurred at 10.50 am.  Although            Dr Frazer could not recall the length of the consultation, he thought it was probably about 10 minutes.  That is consistent with the triage report showing that Mr Brown left Innisfail Hospital at 11.00 am.  Dr Frazer could not recall when he made his notes of the consultation, but said that he usually made such notes during a consultation or possibly within five minutes afterwards. 
  1. Dr Frazer's record of the consultation was brief and in abbreviated terms (Exhibit 30).  He said that he would have looked at the triage report as part of taking the patient's history, but  he did not clarify the mechanism of injury in those notes.  Mr Brown was the source of information for the brief but relevant history that he took.  Those notes included "Boxing Training ++."  Dr Frazer explained that his notes were to the following effect:
  1. Mr Brown was engaged in boxing training to excess (and Dr Frazer recalled Mr Brown stating that the training involved a punching bag);
  1. Mr Brown had experienced an increase in pain in his left shoulder that was exacerbated by neck movements, in other words it was sore when he moved his neck;
  1. Mr Brown had no other injuries, was fit and well.

 It should also be noted that Mr Brown was 28 years old at that time.

  1. Dr Frazer diagnosed that Mr Brown had a sprained trapezius, a large triangular muscle on the upper back connected to the base of the neck and scapula.  He also said that diagnosis was consistent with the mechanism of injury described by Mr Brown of pulling a heavy moulding box along rollers (although Mr Brown did not disclose that history to Dr Frazer). Dr Frazer provided a medical certificate of the type used for a person who is injured outside work and requires time off work.  That certificate stated that Mr Brown was suffering from an unspecified "Injury" and would be unfit for duty up to and including 14 February 2014  (Exhibit 30).  Dr Frazer treated it as a soft tissue injury with ice packs and rest (not aggravating it by heavy working involving the shoulder, and stopping boxing until the injury got better), and some simple analgesia. 
  1. Dr Frazer also gave oral evidence to the effect that:
  1. Mr Brown said nothing to him about his employment;
  1. if Mr Brown had mentioned employment, Dr Frazer would have noted that and completed a WorkCover certificate;
  1. Mr Brown did not disclose to him that he had been pulling a box along rollers at chest height at about 10.00 am on 8 February 2014;
  1. if Mr Brown had mentioned that action, Dr Frazer would have recorded it;
  1. he did not recall Mr Brown saying that he had hurt his neck at work;
  1. he could not recall Mr Brown asking when he could return to normal duties or to boxing training. 
  1. The most contentious part of Dr Frazer's evidence is his reference to boxing training.  In response to the note "Boxing Training ++," Mr Brown gave the following evidence:

"I never said that I'd hurt myself at training.  I directly said that I hurt myself at work.  I don't know, maybe if that note was taken on the day, or it was maybe just his version.  The only time I mentioned boxing was if or if I could not return to it after returning to full duties at work." 

  1. When asked in cross-examination whether the only mention made a boxing during that consultation was when Mr Brown asked when he could return to boxing training, Dr Frazer said:

"No.  The - referring back to my notes, really, there was obviously a major component of discussion around that for me to have documented that as the cause of his injury.  So for me to have documented that in that way it must have been a fairly prompt response to my questioning him about what's happened with his shoulder and what's caused it." 

 Mr Brown contacts his employer

  1. Soon after 7.00 am on Monday 10 February 2014, Nicole Rees, production planner at the foundry, took a telephone call from Mr Brown who indicated that he was not coming to work that day.  In accordance with company practice developed by               Mr Vecchio, Ms Rees called up four standard questions on her computer.  She asked these questions and entered Mr Brown's answers straight away as follows:

"1. Reason for being absent?  Torn muscle in back

2. If Sick - will a certificate be provided on return?  Yes

3. Is the illness work related?  No

4. When do they expect to return to work?  Monday 17th of Feb."  (Exhibit 2)

  1. Mr Vecchio gave evidence that the four questions were developed on his instructions some years ago to ensure that if workers were injured at work their injuries would be investigated immediately.  Accordingly:
  1. if the answer to the question "Is the illness work related?"  is "Yes," the foundry would attempt to contact the worker and find out how they were injured;
  1. if the answer to the question "Is the illness work related?"  is "No," the foundry would not do anything.  It asks the worker to provide a medical certificate when they return to work.  Mr Brown provided a medical certificate on his return to work. 
  1. At 7.14 am that day, Ms Rees sent Mr Brown's responses to the four questions by email to five people, including Mr Vecchio and Mr Fichera.  Tracking information recorded on the email shows that it was read immediately by Mr Vecchio and at 7.57 am by Mr Fichera.
  1. There is no dispute that Mr Brown instructed Ms Rees to record "No" in response to question 3.  However, according to Mr Brown, he answered question 3 by saying "It is work related.  However, can you put it down as No and I'll speak to Joe [i.e.,              Mr Vecchio] when I return to work."  He explained that he gave the answer because of his experience following his lower back injury in 2013.  By Mr Brown's account, he had been taken to a doctor some six hours after injuring his back, and he was told that the employer could not afford lost time injuries.  Subsequently, during his period of recovery at home, others from the foundry[5] would come to his home in a work vehicle. Mr Vecchio was the person who decided to send people to Mr Brown's home. It would take him about 10 to 15 minutes to be seated in the car.  They would take him to the company where he would finger scan in.  They would then take him home immediately.  Mr Brown explained that the reason he told Ms Rees to record "No" was "because I was in too much pain to have them coming around hassling me.  There was no way I could get in the vehicle." 
  1. Mr Brown expressed his rationale concisely in his statutory declaration.  He said to put "No" because "I knew my employer would want to avoid a time lost injury claim and I was concerned about my employment" (Exhibit 9 para 21).
  1. Ms Rees gave oral evidence that she recalled the telephone conversation with                Mr Brown.  It was put to her in cross-examination that Mr Brown said in response to Question 3, "Put "No" and I'll talk to Joe about it."  After a long pause she said "That was never mentioned … it was a no answer, a simple no answer." She added that, had Mr Brown said that, she would have gone and spoken to Mr Vecchio or put the call through to Mr Vecchio straight away. 
  1. Mr Brown agreed that he was given lifts to and from work in 2013 when he was on light duties as part of a staggered return to work arrangement, with progressively increased numbers of hours.  However, he insisted that Mr Fichera had come to collect him the day after the doctor had prescribed four weeks of bed rest. 
  1. Mr Chioatto agreed that his company was proud of having a very low score for time lost for injury. He was aware that in 2013, when Mr Brown had his lower back injury and was off work on workers' compensation, Mr Brown was brought into the factory to clock on and then taken home without doing any work.   Mr Chioatto said that was Iplex policy.
  1. Mr Fichera also gave evidence that he, and sometimes Mr Vecchio, picked up            Mr Brown at his house and took into work, got him to clock in, and then took him home again despite Mr Brown being on workers' compensation and having a certificate to be off duty.  He explained that "it's basically to do with our statistics at work," i.e. the lost time injury statistics.  In re-examination, however, he said that practice was only followed in relation to workers who are subject to suitable duties or a graduated return to work, and never happens in the case of workers who have a certificate says they are fully unfit for duties. 
  1. Mr Vecchio denied ever picking up Mr Brown when he was off work on workers' compensation in 2013, taking him into work, clocking him on and taking him home.  Mr Vecchio said he was aware of Mr Fichera doing so. 
  1. Mr Vecchio described the company policy as follows:
  1. if a person is on rehabilitation, the company tries to get him into the rehabilitation program for some period each day (e.g., for a few minutes or an hour) and builds up from there, so that the worker is kept in touch with the workplace; and
  1. if the worker has a certificate stating that they are totally incapacitated, "they're off work.  That's the end of the story." 

He agreed that the Appellant has a fairly low tolerance for time lost due to injuries, but said "if it's unavoidable, it's unavoidable."  He said that the policy of bringing workers to the foundry, clocking them on and taking them home, is to help them get into rehabilitation rather than to avoid the ramifications of time lost injuries. 

 Mr Brown attends the physiotherapist for the first time

  1. Mr Brown arranged an appointment with a physiotherapist to assist with his sprained trapezium. At about 8.30 am on 10 February 2014, Mr Brown attended on and was treated by Ali Elmohamed, a physiotherapist who had treated Mr Brown in 2013 for an unrelated lower back condition. 
  1. Evidence in relation to this consultation was admitted over the objection of the Appellant.  In its final submission, the Appellant contended that no weight should be attached to any of Mr Elmohamed's evidence, and noted that:
  1. Mr Elmohamed gave evidence by phone - rather than in person so that his credit could be tested;
  1. two critical pages of his treatment records were apparently inadvertently destroyed at the "11th hour" in what can only be described as unusual circumstances; and
  1. the physiotherapy notes for 10 February 2014 record Dr Flynn as Mr Brown's treating/referring doctor even though, at that time, Dr Flynn was not treating Mr Brown.
  1. However, as the Respondent submits, the circumstances of the late discovery of          Mr Elmohamed's records was explained during the hearing.  He was requested to give evidence at short notice and did so by telephone.  He explained the circumstances in which he provided copies of pages rather than originals, and he also produced appointment diaries and invoices which were consistent with consultations on the relevant day and other information in the clinical record. 
  1. As will become clear later in these reasons, it is also apparent from the Innisfail Medical Centre records that Dr Flynn had treated Mr Brown since June 2013.               Mr Brown initially saw Dr Jay at the same practice in relation to his neck injury because Dr Jay was engaged by the Appellant.  When Mr Brown chose his own treating doctor, he chose Dr Flynn as he had done in the past. 
  1. Accordingly, it is appropriate to consider this and give relevant weight to the evidence about Mr Brown's consultation with Mr Elmohamed.
  1. Mr Brown said that he told Mr Elmohamed that he had hurt himself at work and described the symptoms. The physiotherapist assessed him. 
  1. Mr Elmohamed's clinical notes of that session (Exhibit 12) included information obtained from Mr Brown.  Those notes, with abbreviated words explained by               Mr Elmohamed at the hearing, record:

Past (history) Nil

Current 08.02.14 hurt left scapula plus cervical spine region moving a box at work.  Pain increased over time and within the next hour or two, pain became too severe to continue work.  Pain was severe and cervical spine very stiff to move.  Felt spasms in the neck and shoulder blade region.  By approximately 11.30 am went home.  Does not want to submit a WorkCover claim at this point.  Moved the box with left upper limb moving/pulling towards the body.  Pain was sudden, knew injured something. 

Attended Innisfail Hospital on 9 February.  Diagnosed muscular strain, left shoulder blade.  Had one week off work.  Tramadol and Valium.  Valium was effective +++ for the pain plus spasms. (T2:67-68)

  1. Mr Elmohamed had, at best, a vague recollection of the consultation.  By reference to his records, Mr Elmohamed described Mr Brown's condition as "pretty severe."  There were restrictions in Mr Brown's shoulder and significant restrictions in the neck.  It was an acute condition in the inflammatory stage.  Mr Brown had medication and needed to rest.  Mr Elmohamed wanted to address both the neck and shoulder, and give them time to settle before considering options. 
  1. Mr Elmohamed was aware that Mr Brown may have had some involvement in boxing at the time of his treatment in 2013.  His notes at that time record by reference to sports/hobbies "Boxing" and "Always active"  (Exhibit 12, page 7).  He did not recall Mr Brown making any mention of boxing at the consultation on 10 February 2014, and his notes do not record any such reference.  In cross-examination, Mr Elmohamed agreed that the references to fractures in the past and deformity in the right hand marked on a diagram in his records for that day, could be consistent with participating in boxing.
  1. The treatment provided by Mr Elmohamed on 10 February 2014 comprised ice treatment for the neck and shoulder, avoiding aggravating factors, a home exercise program targeted to specific muscles, pulsed ultrasound and rest.

 Mr Brown returns to work

  1. Mr Brown returned to work on Monday, 17 February 2014.  The Appellant's work records show that Mr Brown punched in at 6.59 am.  Mr Brown provided a medical certificate consistently with what he had told Ms Rees on 10 February 2014.                  Mr Brown punched out at 3.31 pm that day.
  1. According to Mr Brown, he was "still quite stiff and sore" that day.  He was designated to work at the QCT moulding line and, following the safety toolbox talk, he spoke to his supervisor, Colin Lyons.  Mr Brown told Mr Lyons that he hurt his neck on BQ5 on the Saturday a week earlier, and that he was "still very sore and tight in the neck."  Mr Lyons phoned Mr Fichera, who came to see Mr Brown. Mr Fichera asked what Mr Brown thought he could do, and Mr Brown stated that he was sore and stiff.           Mr Fichera told Mr Lyons that Mr Brown could work on that line, but Mr Lyons should make sure Mr Brown did not lift anything too heavy. 
  1. Colin Lyons is the green sand coordinator at the foundry and is in charge of two moulding lines including the BQ5.  He was not working at the foundry on 8 February 2014.    Mr Lyons said that Mr Brown did not, at any time around 8 February 2014, tell him that he had sustained an injury or was sore because of work.  Mr Lyons denied that Mr Brown told him on 17 February that he had hurt himself on the BQ5 moulding lines the previous Saturday.  The first he became aware that Mr Brown had a neck injury was "probably a couple of months after that."  Mr Brown told him that he had sustained an injury at work much later, probably about two months or more after that.  Mr Lyons could not recall the context in which Mr Brown told him he was injured at work.  Rather, "he just said he was sore one day." 
  1. As noted earlier, Mr Fichera received and read the email from Ms Rees on Monday, 10 February 2014.  However, Mr Fichera gave evidence that he did not speak with Mr Brown during the week he was away from work (i.e., the week of 10 February 2014) and that he spoke to Mr Brown subsequently, possibly the following week.  He recalled Mr Brown going back on his line when he returned to work. 
  1. Mr Fichera gave different accounts about when he became aware that Mr Brown was alleging that he had been off work because of a work injury or incident:
  1. he said that he did not know about the alleged incident on 8 February 2014 until 22 April 2014, as recorded in the Incident/Injury Report (Exhibit 4) and his own electronic diary; 
  1. however, in evidence-in-chief he suggested it would have been a week or two after the alleged incident on 8 February 2014, or a another one or two weeks after Mr Brown returned to work on 17 February 2014;
  1. in cross-examination, Mr Fichera said that a conversation with Mr Brown could have occurred in the week of 17 February 2014 when Mr Brown returned to work.  Although he did not recall Mr Brown telling him on     17 February 2014 that he wanted to leave early to attend a physiotherapist, Mr Fichera did recall him speaking about going for a massage. 
  1. As his evidence unfolded, Mr Fichera seemed to accept that Mr Brown spoke to him about his work injury on his return to work, and initially Mr Fichera managed that by advising him to remain in his normal duties but not to lift anything heavy.  He said that Mr Brown did not give him the "implication that he was serious enough or bad enough until a little bit later on."  Accordingly, Mr Fichera seemed to accept that, based on what Mr Brown may have told him, he did not feel that an incident report was required because he did not think the injury was serious enough to report. 
  1. However, in re-examination, Mr Fichera said that he did not have any awareness on 17 February that the injury was related to work.  He suggested that it became clear to him after, perhaps, the first or second visit to Dr Jay, that Mr Brown was connecting his neck injury at work.   When he was referred to the Incident/Injury Report that says the injury was reported on 22 April 2014, Mr Fichera said:

"Look, Scott was more or less pushing the issue that it happened at work.  Okay.  I'd had a conversation with Dr Jay at the time who was telling me otherwise and I was two-minded.  I think you might recall I said with the incident report I was having trouble trying to work out exactly how this happened.  So, consequently, maybe that's why there's a bit of a delay there as to when I've got the 19th down versus when it was first raised.  But also it was just a - it was just hazy to me as to is it work-related?  Is it not?  When did it happen?  Did it happen here?  Did it happened there?  It was all a bit - it was still a little bit hazy, I suppose, if that's a word I can use."  (T1: 70)

  1. Mr Vecchio gave evidence that he did not speak to Mr Brown in the week from 10 to 17 February 2014, and did not remember talking to Mr Brown about his absence during that week in the week commencing 17 February 2014. 
  1. Mr Ghietti gave evidence that he became aware after Mr Brown returned from his week's leave that he said he had hurt himself at work.  Mr Ghietti could not be specific about how he became aware of that assertion.  Mr Brown could have told him directly or another colleague could have mentioned it.  Although "everyone there" knew that Mr Brown was off work, it is not clear who knew why he was away or when                  Mr Ghietti or others became aware of Mr Brown's claim.  It was not until September 2014 when Mr Ghietti was first asked whether he knew anything about the incident. 

 Mr Brown attends the physiotherapist again and keeps working

  1. On 17 February 2014, Mr Brown went to his physiotherapist where he had an appointment scheduled for 3.00 pm.  Mr Elmohamed recalled that Mr Brown was at least half an hour late for his appointment, but did not know the reason why. The consultation was shorter than scheduled.  No further history was provided in relation to the mechanism of injury. Mr Elmohamed's notes referred to mild paraesthesiae in Mr Brown's left hand, a condition that he did not record on 10 February 2014. 
  1. Mr Brown gave evidence that he continued to work full time doing normal duties.  He was put on a standard rotation with other employees who were on full duties.                Mr Brown confirmed that before February 2014 he had not had any problems with his neck or his left hand.   Over subsequent months (February to April), the pain in his neck and shoulder did not get any better.  It would "flare up and down, but it never ever got better." 
  1. Mr Brown said that he communicated with Mr Fichera and Mr Lyons about how he was going and that he was still experiencing pain.  He continued to take the Valium provided by the hospital doctor to relax the muscle so that he could sleep.  But he did not have a medical certificate during this period and was not subject to any relevant medical restrictions.
  1. On 17 April 2014, the Thursday before Easter, after a "big day of coring up," the muscle was very tight.  Mr Brown went home, and while he was having a shower he felt an abnormal sensation on his left hand when the warm water contacted his hand. 
  1. Mr Lyons did not recall that on Thursday 17 April 2014, Mr Brown commented to him that he was getting very sore and tight in his neck towards the end of the day. 

 Mr Brown visits the Emergency Department of Innisfail Hospital

  1. According to Mr Brown's statutory declaration, he woke on Friday 18 April 2014 in significant pain.  That pain was significantly worse on Sunday, 20 April 2014    (Exhibit 19, paras 25-26).  After 7.30am, Mr Brown arrived at the Emergency Department of Innisfail Hospital.  He was assessed by triage registered nurse, Yvonne Clark.  She prepared a typed report of Mr Brown's injury as he was talking, taking his statement at face value.  That part of the report described the presenting problem as:

"Injury - blunt injury

Painful (L) [i.e., Left] shoulder and neck stiffness after "boxing" exercise yesterday.

Taken (O) [i.e., oral] Panadol yesterday - nil today."  (Exhibit 1)

  1. The nursing assessment recorded on that document in hand writing by Ms Clark states that Panadol and Bruffen were offered at 8.10 am and that at 8.30 am the patient "decided to go home" apparently without further treatment. 
  1. Ms Clark also stated that she had not met Mr Brown previously, had no independent recollection of Mr Brown's presentation at the hospital, and had no dealing with the doctor or doctors treating Mr Brown.  She explained that "blunt injury" referred to an injury from a blunt force (rather than a projectile or penetrating injury) which could be caused by such things as a fall or knock.
  1. According to Mr Brown, he attempted to do some skipping but, a minute or two into the exercise, he could not do it any more.  The next day he went to the hospital to seek some pain relief.  Mr Brown accepted that he told the nurse that he had done some form of boxing exercise on Saturday, 19 April 2014, and said the boxing exercise probably referred to the skipping.  He would not have been doing push-ups as he did not and could not do push-ups after the injury.  He had ceased training juniors before the Easter weekend. [6] 

 Mr Brown reports additional symptoms to his supervisor

  1. Mr Brown gave evidence that on the Tuesday after Easter, 22 April 2014, he told      Mr Lyons about his sore neck and the numb sensation on the back of his hand.  Mr Lyons contacted Mr Fichera, and Mr Brown told him about the numbness in his left hand, and that his symptoms were not getting any better.  Mr Fichera allocated             Mr Brown work in different areas. 
  1. Mr Lyons recalled that Mr Brown mentioned that his hand was numb and he had trouble moving his neck.  He could not remember whether that was on Tuesday,           22 April 2014.  Also, he "wouldn't have a clue" as to what caused Mr Brown's neck problem.  However, Mr Lyons passed it on to Mr Fichera as the safety coordinator.  Mr Lyons said he had no role in finding out what had happened.  He simply reported injuries to Mr Fichera.               
  1. Mr Fichera gave evidence that he first became aware that Mr Brown alleged that his injury was work-related on 22 April 2014.  No one had told him before that date that there had been an incident involving Mr Brown. 
  1. Reference was made to Mr Fichera's diary notes to the effect that on 22 April 2014, Mr Brown complained of pain in his shoulder and that it had been there all weekend, and that Mr Brown claimed that he had been doing all the lifting of cores on QCT because the "young fellow is not strong enough." 
  1. In cross-examination, however, Mr Fichera not only recalled speaking to Mr Brown on 22 April 2014 on the QCT line but that Mr Brown advised him that his neck pain was getting worse and that he had some numbness in his left hand. Mr Fichera agreed that that was not the first time he knew about this work related injury, and that the neck pain was already there.  He said "Scott would have spoke to me about it sooner."  Despite that, no incident report had been prepared or commenced.  Mr Fichera discussed with Mr Brown where he could be placed so that his neck and arm pain were not causing him so much trouble.  They discussed why Mr Brown was doing work with the 200 x 11.25 bends, which was initially what Mr Brown said was causing his pain.  Mr Brown said that he was lifting these cores for the young men who were not strong enough to put them in.
  1. Mr Brown recalled that one of the other employees was quite small and the cores were too heavy for him to deal with in order to get good-quality castings.  Consequently, Mr Brown had to do more of the coring up to help him out.  That was an explanation of why his condition was "getting worse."  He did not propose that it was the cause of the injury. 
  1. Mr Brown denied first telling people at the foundry on 22 April 2014 that his neck pain was attributable to a work event on 8 February 2014.  He reiterated that he informed them of the injury on 17 February 2004.
  1. Over the following week or more, the numbness progressed across the back of             Mr Brown's hand from his thumb and index finger to his ring finger and along the top of his forearm to his elbow.  He told Mr Fichera that things were getting worse as the numbness had spread.  Mr Fichera stated that Mr Brown must be aggravating it on weekends.  That statement upset Mr Brown who did not like "being called a liar."  On about 28 April 2014, Mr Brown complained to Mr Vecchio about that statement.        Mr Vecchio stated that Mr Fichera was not allowed to do that and apologised, saying it would not happen again. 
  1. Mr Brown did not have any direct discussion with Mr Vecchio by that stage advising him about the work-related injury.  However, to his knowledge, Mr Vecchio was aware of his injury from 8 February 2014.  He reasoned that, because Mr Vecchio managed employees and Mr Brown was directly in contact with Mr Fichera immediately after he returned on 17 February and when he returned after the Easter weekend, the safety officer would have been communicating with his manager. 
  1. Mr Brown said that, during the conversation when Mr Fichera accused him of aggravating the injury on the weekend, he said that they needed to get him to a doctor as he was concerned about his condition.  Mr Fichera made an appointment with         Dr Jay for a date a few days later.  Records of the Innisfail Medical Centre state that Mr Fichera rang on Monday 28 April 2014 as Mr Brown was complaining of a "sore back".  An appointment was booked for 5 May 2014 (Exhibit 10).
  1. Aspects of Mr Brown's evidence were corroborated by Mr Vecchio who said that, on about 22 or 28 April 2014, Mr Brown complained to him about Mr Fichera implying that Mr Brown's injury was boxing related.  Mr Vecchio asked Mr Fichera to apologise.  Mr Fichera withdrew the comment and stated that he should not have said it.  However, Mr Brown said nothing to Mr Vecchio about his injury being connected with work. 
  1. Mr Fichera agreed that he said that Mr Brown was involved in boxing on the weekend and that was causing his pain.  He acknowledged that he was wrong, and out of place.  He was interviewed by Mr Vecchio and apologised to Mr Brown.

 Dr Jay's assessment on 5 and 12 May 2014

  1. On 5 May 2014, Mr Brown attended Dr Andrew Jay with Mr Fichera.  Mr Brown said that he was not asked if he was happy with that arrangement, but he understood it was standard procedure for the company.
  1. Mr Fichera said that his attendance at the consultation was the usual practice ("We do that all the time.  I've been instructed to do that all the time."), although if the worker was not comfortable with him being there he would not go in.  On this occasion, "none of that was spoken of."  He was part of the consultation which he described as "a three way conversation." 
  1. Mr Brown said that he described to Dr Jay where the injury occurred, i.e., that he hurt his neck at work on the BQ5 moulding line on 8 February 2014.  Dr Jay asked questions about the symptoms and did not ask "about exactly how it was done.  It was fairly vague.  He was just concerned about the symptoms."  Mr Brown described to Dr Jay the muscle tightness in his neck ("I had pretty much a 100 per cent loss of turning my head to the left") and the pain and numbness in his hand.  Dr Jay did not conduct a physical examination but asked about Mr Brown's range of motion.  The majority of the conversation was between Mr Fichera and Dr Jay.  Mr Brown understood that Dr Jay believed he had a possible prolapsed disc in his neck.  Dr Jay prescribed Valium and ordered a CT scan of Mr Brown's neck.  There was no restriction on Mr Brown's duties at work.
  1. Dr Jay's written notes for that consultation state:

"Getting pain in base of neck and now tingling in L index finger

No obvious cause

Came with OH and S officer NIBF

No obvious work related trauma

O/E - Neck movements good

SI tenderness over lower cervical bertebrae (sic) and upper thoracic vertebrae

Neuro intact

Suggest continue with normal duties and see CT scan."  (Exhibit 10)

Dr Jay requested a CT scan of the lower cervical and upper thoracic spine, and he prescribed Valium tablets.

  1. Dr Jay gave oral evidence that he has a Diploma in Occupational Health and is familiar with the operations of the foundry, including manual handling tasks that workers have to perform.  He has been through the plant and has seen all aspects of the process, including the BQ5 moulding line.  Dr Jay said that it was not unusual for Mr Fichera to be present at consultations in his role as the occupational health and safety officer from the foundry.  Indeed that was the way they had generally been working so that Mr Fichera was able to understand the nature of what he may have to do and so they could discuss options for any modifications to the workplace that might help the individual.  He did not ask Mr Brown whether it was okay for Mr Fichera to be present because "that's the standard port of call."  He presumed it was consensual. There was no obligation on a patient to have Mr Fichera present and it was normally done on the basis of a mutual understanding and agreement.  
  1. According to Dr Jay, there was no mention of an obvious cause of the symptoms and no mention of anything particularly related to work issues.  Nor was that necessary.  People are brought to him if they are complaining about something (whether work related or not) to see if they need to stop work or to ensure they are doing work that is best for them.  Dr Jay said that he did not ask more than whether the symptoms were specifically associated with anything that had happened previously at work.  He did not go into any history, and nothing was said specifically about a mechanism of injury. 
  1. Dr Jay did not recall the day on which Mr Brown said that the neck pain and tingling had started, and there is no mention of any date in his records.  Had Mr Brown mentioned a date (such as 8 February 2014), Dr Jay said that he would have investigated further.  Dr Jay did not issue a WorkCover certificate because there was no specific link to any work related issue at that time.  In other words, Mr Brown did not describe the mechanism of injury.  Had that been mentioned he would have started "digging a bit deeper" and asking questions about what happened.  At that time he considered that it was unlikely to be work related.
  1. Dr Jay examined Mr Brown's neck movements to see whether there were any obvious changes, and suggested a CT scan.  At the time of the consultation there was no obvious cause of the symptoms. "It was fairly non-specific and fairly ambiguous."      Dr Jay could not make a diagnosis, and needed further investigations.  At that stage, he thought that Mr Brown might have a pinched nerve.  That was why he sent               Mr Brown for a CT scan. However, there was no indication of the need to change      Mr Brown's normal work, and no suggestion at this stage that he perform any modified duties at work.  Dr Jay prescribed some muscle relaxant medication to see whether that would give Mr Brown some relief. 
  1. Dr Jay saw Mr Brown on 15 April 2014 on an unrelated issue which had nothing to do with his neck. 
  1. That evidence is consistent with a letter from Dr Jay to Mr Fichera dated 30 September 2014 in which Dr Jay wrote:

"As you are aware I saw Scott in your presence on 5th may 2014 after he reported to you that he had a pain in his neck and some tingling in the fingers of his left hand and he was finding it difficult to do his normal work.  He did not relate this to any work related event at the time."  (Exhibit 9)

  1. Mr Fichera recalled that Mr Brown started saying that his condition was work-related, and that he was feeling sore (with a gradual tightening of the neck muscles) during the natural course of his work.  Mr Brown did not identify the precise mechanism at work that might have caused his condition.  In cross-examination, Mr Fichera said he remembered Mr Brown talking about his symptoms but did not recall him saying anything to the doctor about exactly where it happened.  Mr Fichera observed that it was usual practice to discuss the symptoms with the doctor rather than where the incident took place or how it occurred.  "The doctor is there simply for the symptoms and to - for the wellbeing of the patient.  It's not for me to discuss [with] the doctor whether I've got issues at work." 
  1. On Monday 12 May 2014, Mr Brown visited Dr Jay in the company of Mr Fichera.  The CT scan made on 7 May 2014 disclosed some prolapse of the C6-C7 disc and possible irritation of one of the left nerve roots from the C6-C7.
  1. According to Dr Jay, Mr Brown did not explain how work was affecting him by reference to any particular motion or activity.  Rather, Mr Brown told him that the spasm in his neck seemed to be getting worse when he did his work.  That was not surprising given that his disc had ruptured.  Dr Jay discussed the possibility of a different type of work to make it more comfortable for Mr Brown, and to then "see how things would progress."  It is possible that the condition could resolve so that the symptoms disappear.
  1. Dr Jay said that he discussed with Mr Fichera a suitable duties plan for Mr Brown, and Mr Fichera prepared a Work Capabilities Check List dated 14 May 2014 which Dr Jay signed (Exhibit 11).  At that stage the modifications involved no lifting or twisting and no driving forklifts or operation of vibrating machinery, but Mr Brown was allowed to have limited use of the crane operation.  He could do light manual work and assembly work.  Dr Jay considered that appropriate because of the nature of the condition with which he was dealing.  In his experience, such a condition can settle down whilst the person is doing almost full work duties.  That document was subsequently modified by Dr Flynn. 
  1. Dr Jay's notes of that consultation state:

"Came for results of CT scan

Numbness spreading to the dorsum of Left hand now

No pain

Good function

Getting some spasm in neck

Work seems to affect him

O/E - Movements good

No loss of function in L arm

CT scan - Disc prolapse 6/7 with irritattion (sic) L nerve root

??  Cause of symptoms

Discussed with Salvo from NIBF

Will place on appropriate job for a few weeks and see."  (Exhibit 10)

  1. The reasons for contact on that occasion were listed as cervical - disc disease and nerve entrapment.
  1. Mr Brown recalled that Dr Jay advised that he had a slight prolapse at the C6/C7 and described the nerves directly related to that area.  Dr Jay told Mr Brown to return to work on full duties and prescribed Valium. 
  1. Mr Fichera acknowledged that the Appellant paid for Mr Brown's consultations with Dr Jay and for him to have massages at Back in Motion, and the reason for doing so was that the Appellant understood that Mr Brown had an injury which was aggravated at work, and Mr Brown was getting sore from what he was doing at work. 
  1. Dr Jay stated that he had not seen Mr Brown since the consultation on 12 May 2014.  That evidence is consistent with a letter from Dr Jay to Mr Fichera dated 30 September 2014 (Exhibit 9) in which Dr Jay wrote:

"I have not seen him since I gave him the result of the CT scan as he has preferred to see my colleague Dr Mark Flynn."

  1. Mr Brown gave evidence that, because he was "very unhappy with Dr Jay duty of care" towards him, he started seeing Dr Flynn.  Mr Brown had seen another doctor at that practice, but that doctor left.  Dr Flynn was Mr Brown's next choice.  He had first seen Dr Flynn in 2013. 
  1. Around this time (and possibly as early as 5 May 2014), Mr Brown started keeping a diary as he was concerned about his health and the conduct of Mr Fichera and               Mr Vecchio.  The purpose of the diary was to assist Mr Brown to remember events between his employer and him, and to "protect myself against what … seemed to me to be that the company was trying to do."  Copies of extracts for dates between 8 February and 17 June 2014 were in evidence (Exhibit 20).  It appears that entries for dates in February were made in May.  They were not contemporaneous and the weight that might be given to them must be assessed by reference to other evidence.

 Consequences of Dr Jay's diagnosis, and Mr Brown's return to work

  1. Between 17 February and 14 May 2014, Mr Brown had no further days off work on sick leave or as a result of an injury.  Indeed he worked some overtime during that period.  The record of punches for the same period (Exhibit 7) shows that on six of the nine Saturdays Mr Brown was at work, and he worked until noon on each Saturday, other than 29 March when he punched out at 11.04am. 
  1. Mr Brown recalled that the next working day after his visit to Dr Jay he rang the foundry and spoke to Mr Fichera.  Mr Brown asked whether Mr Fichera could pick him up for work as he was unable to drive because of the medication prescribed by Dr Jay in relation to his neck (i.e, Valium).  Mr Fichera replied that, because Dr Jay said his condition was a degenerative one and not work-related, it was not their job to get Mr Brown to work.  That was the first occasion when Mr Brown understood there was some doubt about him having a work-related injury.  Mr Brown was upset and hung up the telephone. Being "very confused and upset," he phoned Mr Vecchio who also stated that Dr Jay had said it was degeneration and not work-related, so it was not their job to get Mr Brown to work.  Mr Brown told him that it was a work injury and that if they were not willing to assist him further in relation to the injury then he would have to go to his own doctor.  Mr Brown asked Mr Vecchio what happens if he did not come to work because he could not get there, and Mr Vecchio said that he would take the time out of Mr Brown's sick leave or rostered days off. 
  1. Mr Fichera came to Mr Brown's home that afternoon.  Mr Brown considered that to be "fairly invasive" as he did not want Mr Fichera at his home considering the way their telephone conversation had ended.  Mr Fichera suggested that the approach was from head office rather than him, and offered to take Mr Brown to his own doctor.  Mr Fichera also asked if he could accompany Mr Brown, but Mr Brown said no.  He explained that he had been to the company doctor with Mr Fichera, but Mr Fichera had not assisted Mr Brown in relation to his work injury.  Mr Brown was also unhappy with Dr Jay considering "the severity of the injury, the numbness."  Mr Brown also described the prescribed dosage of Valium as "quite a heavy medication." 
  1. Mr Brown made an appointment to see Dr Flynn who he had consulted in the past and believed to be a good doctor, one who is "always concerned about your health." 
  1. Mr Fichera said that Mr Brown was having trouble even getting out of bed, and was aware that Mr Fichera was going to see Dr Jay.  He also recalled Mr Brown ringing him and hanging up on him because Mr Brown was not happy with what Mr Fichera said, i.e. that he had been instructed that they were not to go and pick up Mr Brown.  Mr Brown was angry and then rang Mr Vecchio. 
  1. Mr Vecchio recalled the telephone call from Mr Brown who, according to Mr Vecchio, wished to be picked up for work by his employer because he could not get his motorcycle helmet onto his head that day.  Mr Brown told Mr Vecchio that if they would not pick him up for work he would have no choice but to go to WorkCover because he could not afford to pay for an operation.  Mr Vecchio asked how it could be a WorkCover matter as it was not work-related.  Mr Brown hung up on him.  According to Mr Vecchio, that conversation occurred on 15 May 2014, and he had no other discussions with Mr Brown about the topic.  Mr Vecchio denied having any conversation with Mr Brown after his WorkCover claim was rejected.
  1. When he was shown the email from Mr Fichera to him dated 14 May 2014 (Exhibit 6, quoted below), Mr Vecchio agreed that Mr Fichera was raising a query whether     Mr Brown's injury was work-related, but the doctor said it was not. 
  1. At 11.16 am on 14 May 2014, Mr Fichera sent an email to Mr Vecchio, copied to Lionel Heath, Liz Wilson (the national injury manager) and Wayne Plant (the regional safety officer) (Exhibit 6).  He referred to a phone call from Mr Brown that day to say that Mr Brown "could not come to work today due to the pain in his back/neck he was experiencing."  Mr Brown stated that he had taken Valium tablets a number of times throughout the night to help with the pain and as a result had not slept much.                  Mr Fichera had urged Mr Brown to try and come in to work, even if only for a few hours, and Mr Brown agreed.  Mr Fichera reported on the steps he took, including visiting Mr Brown at home.  Mr Brown told Mr Fichera that the pain in his back was getting worse, and he agreed to Mr Fichera going to the doctor to get a suitable duties plan drawn up.
  1. In that document, Mr Fichera recorded that he spoke with Dr Andrew Jay face-to-face and that he explained the situation to Dr Jay.  According to Mr Fichera:

"The Dr replied that he was not about to give us a Work cover certificate, because he did not think this issue was work related.

The Dr said there was not sufficient evidence to support the lodging of a Work cover certificate nor was there enough evidence to support the trauma that Scott was apparently going through.

He said that any of the light duties that were given to him, were more than adequate for the type of injury that Scott has.

The Dr stated that he felt Scott was getting 'Mileage' out of this for an unknown reason and not for his apparent condition.

I have asked the Dr to fill out a Work Capabilities Checklist for me, to which he agreed."  (Exhibit 6)

  1. Dr Jay's written notes for that consultation on 14 May 2014 state:

"Discussed with Salvo NIBF

Did not turn up for work today

Claimed very bad pains in neck

Had to take valium x 3 last night due to pain

Has been given light duty

Continue with light duty and see

Light duty plan done

Review 10/6/14."  (Exhibit 10)

  1. On 15 May 2014, Mr Brown attended on Dr Flynn, who gave evidence of Mr Brown's account that he had injured his neck at work while manoeuvring a heavy moulding box along rails and that he turned or twisted his neck and felt sudden pain. The consultation notes state:

 "Note previous L4-5 injury with some ongoing pain since

8-10 weeks ago Sat am work tightness left shoulder blade severe enough to cease work and present IDH

1 week off own sick leave

similar again at work around 2 weeks ago on a Friday 2 days off again

aware of numbness left index thumb dorsum only

tramadol for pain , continued full duties

poor Range of movement neck stabbing pain with neck movement or     arm movement

Last Friday noted progression of numbness across back of hand to 5th metatarsal [sic: metacarpal] dorsum

Monday some alteration of duties

Valium relieves spasms

unable to work yesterday

CT showed C6-7 disc prob"   (Exhibit 10)

  1. On 16 May 2014, Dr Flynn signed three versions of a workers' compensation medical certificate on that date.  One certificate recorded:
  1. that Mr Brown stated the date of his injury as 8 February 2014;
  1. that Mr Brown stated the cause of injury as "heavy lifting;"
  1. a diagnosis of C6-7 disc prolapse with left C6-7 radiculopathy;
  1. that Mr Brown had no capacity for any type of work from 13 to 16 May 2014; and
  1. that Mr Brown could return to work for suitable duties from 19 to 30 May 2014 (including occasional lifting of weights limited to 2 kg, but no pushing or pulling or operating machinery, and no neck twisting or overhead work) (Exhibit 8).
  1. The two other versions of the workers' compensation medical certificate differed in one of two respects from Exhibit 8.  Exhibit 23 listed 7 February 2014 as the date of injury, and Exhibit 22 recorded the stated cause of injury as "manoeuvring moulding box on pinion and placing cores into moulding box."  In his oral evidence, Dr Flynn explained that Mr Brown attended him concerning a neck injury which Mr Brown said was work-related.  Mr Brown's symptoms included a stabbing pain and tingling in the neck, and numbness across the back of his hand.  He told Dr Flynn that he was manoeuvring (not lifting) a heavy moulding box along rails and turned his neck or twisted his neck and felt sudden pain. 
  1. As noted above, two of the certificates described the stated cause of injury as "heavy lifting" (Exhibits 8 and 23) and the other records the stated cause of injury as "manoeuvring moulding box on pinion and placing cores into moulding box" (Exhibit 22).  Dr Flynn's notes of the consultation on 15 May 2014 do not refer to a mechanism of injury.  However, Dr Flynn recalled the mechanism of injury being described to him at the time and refuted a suggestion that no mechanism was given to him by          Mr Brown on that date.  According to Dr Flynn, Mr Brown pointed out to him subsequently that the certificate referring to "heavy lifting" was not an accurate record of what they had discussed.  Dr Flynn agreed, and suggested that the certificate was filled out very quickly at the end of a fairly long process and at a time when he was running behind in the practice.  He apologised that there "may have been errors."  The later certificate (Exhibit 22) records that Dr Flynn attended to Mr Brown on 26 May 2016.
  1. The Work Capabilities Checklist, was commenced and signed by Dr Jay on 14 May 2014 (Exhibit 11).  It lists Dr Flynn as Mr Brown's treating medical practitioner.  It was completed on 16 May 2014 and has various entries and amendments next to which Dr Flynn has written his initials.  The Checklist describes Mr Brown's condition as "lower cervical disc lesion with possible nerve root compression (L) C7."  Consistently with the workers' compensation medical certificate issued by Dr Flynn that day, the Checklist states that Mr Brown was totally unfit for work for four days up to and including 16 May 2014, and was partially fit and capable of performing selected duties with specified limitations up to and including 30 May 2014.  He was to be reassessed on 10 June 2014. 
  1. Mr Brown said that he thought it was during his consultation with Dr Flynn that he first saw a suitable duties form.  Dr Flynn advised him that Dr Jay had not given any restricted or suitable duties.  Dr Flynn then amended the document to record what     Mr Brown could or could not do (Exhibit 11).  He also ordered an MRI and prescribed nerve pain medication, pain relief and anti-inflammatories.  The medication assisted in the relief of symptoms and enabled Mr Brown to sleep. 
  1. Mr Vecchio said that at 14 May 2014, Mr Brown had a personal injury but the nature of that injury was unclear, as was the means to cure it, and Mr Vecchio thought it was not work-related. During mid-May 2014 he first became aware that Mr Brown contended that his absence from work from 10 February 2014 was the result of a work injury on 8 February 2014.  After 15 May 2014, Mr Vecchio received two WorkCover certificates from Dr Flynn, one stating that the incident occurred on 7 February 2014 and the other nominating 8 February 2014 as the relevant date.  No one at the factory in a management position had drawn Mr Vecchio's attention to any connection between the injury and work before then.  Rather, he had been told by Mr Fichera (who had spoken to Dr Jay) that he did not believe the injury was work-related.  If    Mr Fichera knew that Mr Brown was saying it was a work-related injury he should have told Mr Vecchio about it as they could investigate the associated incident.

The Incident/Injury Report

  1. On 19 May 2014, Mr Fichera compiled an Incident/Injury Report which recorded the date of incident as 8 February 2014 at 9.30 a.m. and the date when the incident was reported as 22 April 2014 at 10.00 am.  The incident was described as follows:

"Operator working on BQ5 moulding machine line.  Operator placing 300 x 11 ¼ soc [i.e. socket] bends into mould.  Operator using swing 5IB hoist to place cores.

At this point the operator felt a gradual tightening of his L/H neck muscles and also gradual increase of pain.

Operator continued to work until the pain was unbearable.  He then ceased work at approx. 10.00-10.30 and reported to his supervisor - G Chioatto.  Operator then went home."  (Exhibit 4)

  1. In the part of the Report dealing with root causes of the injury, Mr Fichera wrote:

"Operator working off normal duties.

Spasm occurred at work."

  1. In his oral evidence, Mr Fichera explained that the Incident/Injury Report was prepared more than one month after the incident was notified on 22 April 2014 because the incident had to be investigated, and Mr Brown attended Dr Jay ("our foundry doctor") with Mr Fichera on 5 May 2014.
  1. When the Incident/Injury Report was being prepared, Mr Brown had a support person (Mervyn Hader) and Mr Fichera had a support person (Michael Bonaccorso) in attendance. 
  1. Mr Fichera said that, at the time he prepared the report, he was "a little bit confused" because:
  1. his electronic diary note stated that the incident occurred while Mr Brown was working on the QCT line; but
  1. when they sat down, Mr Brown mentioned the BQ5 where he was using a crane to pick up the cores, he swung them across, the crane lowered them and Mr Brown placed them into the bottom box. 

Mr Fichera said that he obtained the information for his diary from Mr Brown on 22 April 2014 while Mr Brown was working on the QCT line.  Mr Brown had told him that the young kids who had started there were not strong enough to move the cores around, so he was doing it for them.  While he was helping them, he felt sore, or started to get sore.  However, that information was about events on 22 April 2014, not about what happened on 8 February 2014 (see [93] to [99]).

  1. When writing the report, Mr Fichera queried Mr Brown about the location of the incident because Mr Brown had already spoken to him "about a different thing altogether."  Mr Fichera recalled that Mr Brown became "a bit anxious at the time when we spoke about this."  According to Mr Fichera, that is why there is very little written under the heading Summarise Root Causes.  He started to write something but crossed it out because Mr Brown did not agree with it.  Mr Fichera "backed right off" and "crossed it all out."  He asked Mr Brown to tell him exactly what he wanted him to put down.  Mr Brown said "spasm occurred at work," and that is what Mr Fichera wrote.  There is no signature from Mr Brown because "he didn't want to write anything."  Mr Brown refused to sign the report.  Mr Fichera said that Mr Brown was "a little bit vague on exactly how it happened," and the entry on Root Causes was "all he allowed me to write.  He didn't want me to write anything else at that time." 
  1. Mr Fichera said that, because he was not getting any straight answers from Mr Brown, he also spoke with Mr Ghietti briefly about how the injury happened.  Mr Ghietti provided little information other than that Mr Brown was not feeling well and had gone home that morning.
  1. Mr Fichera said that they were in Mr Vecchio's office the next morning because          Mr Brown felt that Mr Fichera was trying to get him into trouble by the questions he was asking.  Mr Brown had a support person present.  Mr Brown complained about Mr Fichera trying to put words into his mouth or writing things that were probably not correct.  Mr Fichera apologised on the basis that Mr Brown felt that he was trying to put words in his mouth.  According to Mr Fichera, Mr Brown "felt anxious at that time."
  1. However, Mr Fichera said that the questions all related to how and why the worker was hurt, and he was confused because Mr Brown was talking about two completely different lines (i.e., BQ5 and QCT).  Mr Brown had identified two causes, one at the QCT and one at the BQ5.  Each of those is a line which operates a series of moulding boxes, but the boxes on QCT are much smaller than those on BQ5.  The lines are located in the foundry approximately 10 to 12 metres apart. Mr Fichera said that he did not ever obtain a clear understanding of the mechanism of injury. 
  1. According to Mr Brown the description of the incident was not what he told them at the time.  Rather, the document was instigated and written by Mr Fichera.  Mr Brown described Mr Fichera completing the form on the other side of the table from                Mr Brown, who could not see the form.  It was put to Mr Brown that Mr Fichera was asking him series of questions, trying to find out what had happened.  Mr Brown said that Mr Fichera asked the same question many times about the causes of the injury.  According to Mr Brown:

"He was more telling me.  He - he actually started to tell me that the reason for it injury was misuse of cranes, and I stopped him and asked him where he got that information, and asked him, you know, why he had said it.  He was just telling me.  He wasn't really asking me."  (T3:87)

Having asked Mr Brown what happened, Mr Fichera "proceeded to make a statement that I hurt it lifting, which wasn't the case." 

  1. Mr Brown said he was "quite upset" about what he described as "the accusation that I misused cranes" which made him "feel very threatened, in the way they were treating me."  He said the accusation was "offensive."  Mr Fichera had started to write about the crane on the document, but had scribbled that out because Mr Brown would not sign the report unless he did so. 
  1. When asked whether he was saying that what was written was not what happened,   Mr Brown replied:

"I'm saying that's roughly what happened.  I'm not saying that that is where the onset of pain happened. …  It was while I was moving the box. …  The first time I had any sort of pain in my neck was when I moved that box."  (T3: 86)

He continued:

"Well, it wasn't like it knocked me over, but the onset of pain happened when I moved the box, and then it progressed. …  The onset of pain started when I moved the box."  (T3: 87)

  1. Mr Brown and Mr Fichera discussed how his prolapsed disc might have been caused.  According to Mr Brown he said that he was not a doctor and could not say that his disc popped out on that occasion, but told him that the onset of pain happened when he moved the box. 
  1. When asked why he did not tell Mr Fichera that he injured his neck pulling the box (as he had told the physiotherapist), Mr Brown said:

"Look, I finished that report very upset, and agitated from the accusation, and I immediately felt threatened from the company.  So, look, I wasn't going to go into fine detail.  I didn't want to say another word to them.  They were, clearly, trying to set me up to sign the document which was incorrect."  (T3: 95)

  1. Mr Brown said he did not sign the incident report form because "I just didn't trust them, for obvious reasons, like the accusation, and other mistreatments they had done towards me."  (T3: 97)
  1. Mr Brown recorded the conversation with Mr Fichera about completing the form (to "protect" himself, as he had done with his diary), and his solicitors transcribed the sound recording.  Neither the recording nor the transcript were in evidence. 
  1. Mr Brown also said that he made "numerous complaints" to Mr Vecchio about the way Mr Fichera conducted himself. 
  1. Mr Vecchio said that he has to sign off on all incident reports.  Had Mr Brown's Incident/Injury Report been completed on 22 April 2014, he would have seen it.  He had seen, but apparently not signed, the Incident/Injury Report dated 19 May 2014. 
  1. Mr Vecchio seemed to suggest that, although the Incident/Injury Report states that the injury was reported on 22 April 2014, the Report was not done until 19 May 2014 because they received the WorkCover certificate from Dr Flynn. The Report comprises the entire investigation. 
  1. Also on 19 May 2014, Mr Fichera prepared and signed a document in relation to        Mr Brown addressed To Whom It May Concern (Exhibit 5).  The document commenced:

"I make this statement in reply to Scott Brown's alleging he reported and (sic) injury to Garry Chioatto and Colin Lyons on Saturday 8 February 2014.

I keep very clear and up to date diary records of all incidents and injuries that are reported.  Garry or Colin made no mention of any injury that Scott obtained on the day.  I received the email below from Nicole Rees on Monday 10 February 2014 (below).  It is company policy to send this email when an employee phones in sick.

Scott was taken Dr Andrew Jay on two occasions.  The Doctor advised me that it is not a work related injury and therefore he will not be raising a work cover certificate."

Mr Fichera then quoted the full text of the email of 10 February 2014 (Exhibit 2).

  1. In his oral evidence, Mr Fichera explained that he wrote the document as a file record in response to a question whether he was aware of Mr Brown's injuries when                 Mr Brown rang the foundry's office on 10 February 2014.  It was a means of reporting to Mr Fichera's peers,[7] and the document was saved in his records.  He conceded that the document was not a complete record, at least to the extent that it did not state that he became aware of the injury by at least 22 April 2014.
  1. In a similar type of written statement on 19 May 2015, Mr Chioatto wrote:

"I make this statement in reply to Scott Brown's advising Salvo Fichera that he report and (sic) injury to myself on Saturday, 8 February 2014.

This is totally incorrect.  Scott made no mention of any injury of any nature on this day.  It is strict company policy that all injuries, incidents and general employee health issues are reported to the site EH&S coordinator (Salvo Fichera) to the documented and investigated."  (Exhibit 3)

His statement also referred to the phone call from Mr Brown received by Ms Rees on 10 February 2014, and quoted the questions and answers in Exhibit 2.

Boxing and boxing training undertaken by Mr Brown

  1. Mr Brown likes to keep fit, and for some years has engaged in amateur boxing, personal training and the training of others who are learning to box.  He gave oral evidence in relation to the nature and extent of his boxing and boxing training activities before and after the alleged workplace incident.  That evidence was supplemented by oral evidence from Eric Norman, a voluntary boxing coach who has known Mr Brown since March 2012 when both men were coaching at the Police Citizens Youth Club in Innisfail.
  1. Mr Brown gave evidence that he moved to Innisfail in about 2011, a few days before he started work at the foundry.  The gym opened subsequently and he went there for fitness.  Mr Brown had an exercise program that a boxer would follow (including a lot of skipping and core strength exercises) and concentrated on losing weight. Some six to eight months after he started training there he had three fights.  After injuring his lower back in 2013 he stopped fighting for about eight months.  He had one fight in November 2013.  He was not injured during any of those fights.  He ceased fighting for the year after the fight in November 2013, and thought that the boxing season ended around that time. 
  1. As well as doing his own personal training, Mr Brown had been involved in training juniors (boys between 10 and 14 years of age).  As the gym did not open until late February 2014, he thought that he had probably not been training juniors early that year.  He was training at home while the gym was closed, following a personal routine including jogging, sit-ups, push-ups and other general fitness exercises.  When asked whether he was doing any work on a speed ball or a heavy bag, Mr Brown said "I don't have a speed ball" and "I don't have a heavy bag."
  1. Mr Brown said that, in the period between 8 February and 22 April 2014:
  1. he was not involved in any boxing matches;
  1. he conducted possibly two or three training sessions with juniors on some Fridays during that period, but said that only involved giving instructions and he told his students he could not hold hand pads;
  1. his personal training ceased in the week he was away from work then (in reliance on Dr Frazer's diagnosis of a sprained trapezium) he did some skipping and sit-ups and other exercise although that "definitely wasn't easy," and he was doing "some small stuff if I felt up to it."  The training was "based around looking after that area of my body."  He ceased jogging "because it was hurting too much."
  1. Mr Norman trained seniors (over 17 years of age) and juniors (from 10 to 16 years of age) each Monday, Wednesday and Friday evening for some years since March 2012. Mr Brown assisted in training seniors and juniors.  The training of juniors involved skipping, the use of a punching bag and hand pads, and shadow sparring, and sometimes light sparring.  An instructor would sometimes demonstrate such things as techniques and stance.  Both senior and junior training commenced and concluded on the same dates.  According to Mr Norman's evidence, training ended on 22 November 2013. 
  1. Mr Norman also organised boxing matches and gave evidence that, so far as he was aware, Mr Brown was involved in three or possibly four such matches.  The last was on Saturday 2 November 2013.  A medical statement dated 2 November 2013, prepared by a doctor before the fight, recorded Mr Brown's regular heart rate, his blood pressure, and records that all the listed physical indications were normal (Exhibit 25).  The three score sheets for that fight show that the fight was stopped after the first round and was won by Mr Brown (Exhibit 25).  According to                     Mr Norman, Mr Brown suffered no injury as a result of that fight, which only went for about 40 seconds.
  1. Mr Brown might have come in on one night between 2 and 22 November 2013 to finish training when there was a significant health event for a member of Mr Norman's family.  Training resumed early in February 2014, possibly about 3 February 2014.  Mr Brown did not attend training and Mr Norman made a number of phone calls.  He said that Mr Brown returned his calls on about 13 February 2014 and said he would not be coming in as he had hurt himself at work.  Mr Brown described his symptoms as a pinched nerve or pulled muscle around his lower neck/shoulder area and indicated he would return when he was better.  Mr Brown did not attend any junior training sessions in 2014.  Mr Norman saw Mr Brown subsequently and said that Mr Brown "didn't look good." 
  1. Mr Norman's written statement concluded "I cannot recall Scott ever having mentioning any neck pain to me following the boxing training sessions or tournament that he participated in during 2013" (Exhibit 26).

Medical evidence

  1. Expert medical opinion evidence was given in relation to the nature and cause of        Mr Brown's condition or injury by:
  1. Dr Andrew Jay, a general practitioner at the Innisfail Medical Centre;
  1. Dr Mark Flynn, a general practitioner at the Innisfail Medical Centre
  1. Dr Gavin Ballenden, an occupational physician;
  1. Dr Eric Guazzo, a neurosurgeon whose practice includes diseases of the spine;
  1. Dr Terrence Coyne, a neurosurgeon;
  1. Dr Frazer, a general practitioner at Innisfail Hospital.
  1. Dr Jay: As noted earlier, Dr Jay saw Mr Brown in the company of Mr Fichera on       5 and 12 May 2014.
  1. Dr Jay described the features of a prolapsed disc and explained that it is caused by "wear and tear in everyday life" and it is not always possible to link the prolapse to a particular event.  A person might be unaware that a prolapsed disc has developed until it reaches a critical stage and the person becomes aware of symptoms.  When asked whether Mr Brown told him on 5 May 2014 that he had previously been pain-free and that the pain came on suddenly, Dr Jay replied that that "really isn't that relevant … because that's just a point in time."  A person could wake up one morning in pain having slept the previous night.  There does not need to be an event to bring it on.  In his opinion, Mr Brown's pain or condition was not necessarily linked directly to a work-related incident although he thought that "there may be aggravating factors, as always is the case." 
  1. Dr Jay stated that the general movement of neck and arms in the day-to-day activity of working on the BQ5 moulding line "is contributing to wear and tear all the time."  He continued: "this is always a very grey area and it will remain a grey area when you're trying to deal with it.  But any form of physical - physical wear and tear over time is - is going to be responsible."  It is almost impossible to give a specific event unless a person breaks an arm or a leg. 
  1. Although there is no reference to boxing in his records, Dr Jay was aware that               Mr Brown participated in the sport of boxing. He was not sure whether it came into his conversation with Mr Brown.  Dr Jay considered that boxing might cause problems of the type from which Mr Brown suffers and that unspecified boxing type exercise might be a relevant factor. 
  1. Dr Flynn: Dr Flynn first saw Mr Brown as a patient in June 2013.  On 31 October 2013 Dr Flynn examined Mr Brown and certified him as "fit to box" (Exhibit 10).      Dr Flynn became Mr Brown's general practitioner in relation to his neck injury from 15 May 2014.  He recalled that consultation and Mr Brown's account that he had injured his neck at work while manoeuvring a heavy moulding box along rails and that he turned or twisted his neck and felt sudden pain.  Mr Brown attended the hospital a day or two after that activity.
  1. When Mr Brown presented on 15 May 2014, his symptoms included a stabbing pain in the neck with any movement or arm movement, tingling in the neck, and a progressive numbness across the back of his hand.  Dr Flynn's consultation notes do not include any mechanism of injury.  Based on the history and the symptoms supplied to him and the CT scan which is available on record, Dr Flynn diagnosed that                Mr Brown had sustained a C6 disc prolapse with pressure on the left side of nerve root.  Given that diagnosis and the length of time Mr Brown had been suffering symptoms, Dr Flynn considered an MRI was appropriate as surgery might be needed.  Most surgeons who wish to intervene in such a situation would prefer an MRI scan to a     CT scan for a better delineation of soft tissue structures.  Dr Flynn also prescribed different types of medication in relation to pain and inflammation. 
  1. The MRI report disclosed that Mr Brown had osteophytosis associated with a disc bulge, shallow protrusion effacing the left lateral recess and severely narrowing the left neural foramen with apparent left C7 nerve root impingement.  Dr Flynn stated that:
  1. the osteophytosis would not have occurred in the two months prior to that consultation (osteophytes usually being a degenerative problem that develops over time) but could have produced symptoms and pain;
  1. the disc bulge and left C7 nerve root impingement could have occurred "at that point in time" and he considered that the disc bulge and impingement were caused by Mr Brown's employment. 
  1. Dr Flynn agreed that he relied entirely on what Mr Brown told him for his understanding of the mechanism of injury.  He recalled being surprised that some months after the injury, the patient was still suffering considerable pain and that nothing had been put through WorkCover at that time. 
  1. On 16 May 2014, Dr Flynn issued a WorkCover medical certificate based on his examination of Mr Brown on 15 May 2014.  That certificate records that the worker stated the date of injury was 8 February 2014 and that the cause was "heavy lifting" (Exhibit 8).  Another certificate dated 16 May 2014 records "heavy lifting" on                  7 February 2014 as the worker's stated cause of injury (Exhibit 23).  A third certificate, also dated 16 May 2014 but referring to a consultation with Mr Brown on                         26 May 2014, records the worker's stated cause of injury as "manoeuvring moulding box on pinion and placing cores into moulding box"  (Exhibit 22).  Dr Flynn recalled that Mr Brown pointed out to him at a subsequent consultation that the first certificate was not an accurate record of what they had discussed.  Dr Flynn agreed.
  1. Dr Flynn acknowledged that he made alterations to the Work Capabilities Checklist on 16 May 2014 (Exhibit 11).  
  1. Dr Flynn's assessment of the cause of Mr Brown's injury, and the basis of that assessment, are set out concisely in his written statement dated 30 September 2014:

"1.  The reported history of development of Mr Brown's cervical condition as related to me at his presentation on 15/5/2014 was that whilst working at his employment some 8-10 weeks earlier he was manipulating castings/mouldings when he noted what he described as sudden onset of tightness in his left shoulder blade severe enough to warrant him ceasing work.

2. I am aware of no other factor that was contributing to his cervical disc prolapse.

3. Mr Brown's employment was the sole contributing factor.  There were no other events/injuries/activities at the time that could explain the development of his condition."  (Exhibit 21)

  1. Paragraph 1 of that statement has to be read in light of Dr Flynn's evidence (noted above) that Mr Brown said he had injured his neck at work while manoeuvring a heavy moulding box along rails and that he turned or twisted his neck and felt sudden pain.
  1. In cross-examination, Dr Flynn agreed that boxing training might produce some form of injury or sprain to the shoulder or neck.  He said that Mr Brown did not tell him that he was involved in boxing training or boxing exercise in February or April 2014.  Dr Flynn understood that boxing training and boxing exercise could include skipping, punching a boxing bag, doing simple static weights and aerobic exercise.  If Mr Brown sustained a prolapsed disc on 8 February 2014, a subsequent attempt to do skipping would be likely to exacerbate the pain he experienced. 
  1. Dr Ballenden:  Dr Ballenden assessed Mr Brown on 16 February 2015 at the request of the Appellant for the purpose of providing an independent medical examination and report. Dr Ballenden had not previously seen or treated Mr Brown.  He was provided with materials including two DVDs containing video images of the area where Mr Brown was working and the type of work he was undertaking                   (Exhibits 16 and 17).
  1. Dr Ballenden's detailed written report (Exhibit 15) includes the following Executive Summary:

"This man has a cervical disc/osteophyte complex compressing the C7 nerve root, at the C6-C7 cervical level, on the left side of his neck with associated radiculopathy.

This condition is constitutional and is not caused by work.  The underlying constitutional condition has been aggravated on two occasions by non-work related physical activity.

No mechanism for a work place aggravation has been identified.

A symptom flare which resolved completely was recorded as a result of a work related activity."  (Exhibit 15)

Those conclusions were discussed in detail elsewhere in the report and in his oral evidence.

  1. Nature of the condition: In his written report Dr Ballenden provided more detail about Mr Brown's condition, including the following passages:

"This man has a moderate to severe left uncovertebral osteophytosis together with a shallow disc herniation (disc/osteophyte complex) at C6/C7 disc with C7 nerve root radicular pain on the left due to foraminal stenosis caused by this 'complex'.

The uncovertebral osteophytosis is degenerative and pre-existing.  It is possible that the shallow disc herniation is more acute and together these have caused the stenosis and nerve symptoms.

The shallow disc protrusion may also have been there for some time but increased recently."  (Exhibit 12 pages 10-11)

  1. He also recorded that:
  1. a CT scan of the cervical spine done on 7 May 2014 showed that at C6/C7 there was "a possible lateral disc herniation to the left at the midline with a foraminal stenosis present on the left."  There was no other evidence of radiological or pathological change.
  1. an MRI scan was performed on 2 June 2014 which showed "Quite bulky left uncovertebral osteophytosis at C6/7 appearing to be associated with a focal shallow disc bulge narrowing the left neural foramen with apparent left C7 nerve root impingement."

Dr Ballenden noted that the osteophytosis is the significant factor in this foraminal stenosis, being an underlying degenerative condition.  These reports show "significant degenerative change at that specific level on the left side which are long standing and pre-existing" (Exhibit 12 page 11).

  1. Dr Ballenden described the osteophyte as a growth of bone coming off the vertebrae, or the intervertebral joint, and encroaching on the window through which the nerve travels at the C7 level.  Such a growth is normally a degenerative change.  It develops slowly, and could reflect a previous long-standing trauma or might develop because of constitutional reasons.  Coupled with that was a degenerative disc, hence the term "disc/osteophyte complex."  The radiculopathy includes radicular (nerve) pain and involves objective clinical signs which allow one to decide that there is pressure on a nerve such that it is causing pain and other complications. 
  1. Symptom flares:  Dr Ballenden gave evidence that symptom flares affecting bones, joints and spine occur where people have pre-existing degenerative change (whether they have previously been symptomatic or not) where there is no change in pathology or radiological changes and where, clinically, there is no supportive or corroborative evidence to suggest that there has been a pathological change.  A symptom flare (unlike exacerbation or aggravation of an injury[8]) is temporary and settles down to the previous baseline.  The person merely complains of discomfort and then the pain goes away.  Dr Ballenden formed the impression that Mr Brown had pain around the time of 8 February 2014, but that seemed to have resolved because he went back to boxing training, and he then had an episode where he had a further visit to the hospital reporting a re-aggravation or a symptom recurrence of pain, which implied that the pain had gone away. 
  1. Dr Ballenden wrote that a "combination of the bone degenerative change and to a much lesser extent the degenerative discal change is what is causing his [Mr Brown's] physical symptoms" (Exhibit 12 page 11).
  1. Mechanism of injury: In his oral evidence, Dr Ballenden recounted Mr Brown's description about the mechanism of injury (moving a moulding box using his left hand to grasp and drag the box along the rollers).  In his written report, Dr Ballenden recorded Mr Brown telling him that the manual rollers are all "a bit of a struggle" and he struggled to pull on the box and he felt a bit of pain in his neck and shoulder (Exhibit 12 pp 3, 12).
  1. Dr Ballenden expressed the opinion that if Mr Brown pulled a box in the manner described, he "might have strained a muscle or muscular-ligamentous structure in his arm or shoulder," but he would be "highly unlikely to have injured his neck."  There need to be "significant forces" (torsional[9] or axial load[10]) around the neck itself to cause an injury to the neck.  Such loads could come from external forces, e.g. a motor vehicle accident, rugby tackle with a head on the wrong side, or a forceful blow to the head.  Dr Ballenden explained that, in the sort of position described by Mr Brown, the biometrics of the upper limb (i.e. the muscles) do not put an extreme load on the neck.  He continued:

"it's feasible that if someone had a problem in the neck or some degenerative change that, if it was – the head was held in an awkward position, one might feel symptoms from that, and most people do from time to time.  The natural reaction is to immediately move away from that, but it doesn't cause injury."  (T3: 61)

  1. In addition to receiving Mr Brown's description of his work at the time he experienced the pain in his neck, Dr Ballenden viewed the industrial process as recorded on the DVDs.  He observed that the moulding boxes are relatively large and he stated that, particularly when filled with sand, they are "very heavy."  However, Dr Ballenden stated that he did not see any mechanism whereby a person would hurt themselves at all.  More specifically, in relation to guiding a box that has been lifted by the overhead crane, he stated that he "saw no mechanism in that which would be likely to cause or aggravate the condition of the cervical spine."  He accepted that it was possible that a worker who was moving a box may have injured themself by straining some part of the upper limb.  However, Dr Ballenden would not accept that they could have injured their neck in that situation. 
  1. In a similar vein, Dr Ballenden wrote in his report:

"Mechanisms such as axial compression loads, high impact torsional loads from external force can cause and aggravate such underlying degeneration, however there is nothing else in terms of activity that can cause a disc to herniate or degenerate.

Normal neck movements do not aggravate such a problem and nor do arm movements aggravate or cause such problems.

However trying to work, when one does have such a condition would be extremely uncomfortable.  That would be defined as "Work Relevant" or painful at work, but not "Work Related" or caused by work (Defined by the Health and Safety Executive (HSE) UK)."  (Exhibit 12 page 11)

  1. Dr Ballenden did not agree that the mechanism described by Mr Brown caused his disc prolapse.  Rather he asked why, if the disc prolapse occurred on 8 February 2014, did Mr Brown develop symptoms two months later which suggested nerve root compression.  Dr Ballenden described that as "a natural progression of a disc herniation, which we would expect with a latency of that time, or … some shorter time."  He accepted that it was possible that there was a disc prolapse at the time of the pain and that the disc fragment moved further creating nerve impingement over subsequent weeks.  However, in his opinion, "that could also have been spontaneous due to the natural progression." 
  1. Boxing activity: In his report, Dr Ballenden described what he understood to be the extent of Mr Brown's boxing related activity and the implications of that for his physical condition and symptoms.  He wrote that Mr Brown said that:

"the boxing training he was doing was not boxing matches.  It was skipping.  He did no weights.  He did push-ups and sit-ups.  He worked on his speedball and on the heavy bag and he trained hard.  He said he has had no contact boxing for three months, at least, by the time his neck "played up"" (Exhibit 12 page 9).

Most of that information is consistent with Mr Brown's oral evidence.  However,       Mr Brown's oral evidence also suggested that he did not work on his speedball or on the heavy bag, or train hard. 

  1. Dr Ballenden also referred to:
  1. the clinical record written by Dr Frazer on 9 February 2014 that "boxing training++" was the cause suggested for the increased pain in Mr Brown's left shoulder exacerbated by neck movement;
  1. the hospital nurse's triage record of 20 April 2014 that "boxing training" was a cause for neck/shoulder pain.

He observed that it appeared that Mr Brown was well enough sometime after                   8 February 2014 to return to boxing training.  That implies a resolution of symptoms, at least to the level where Mr Brown could engage in vigorous exercise again.  He also suggested that the "blunt injury" referred to in the record of 20 April 2014, although not defined, was not something that Mr Brown could have given himself doing boxing training.

  1. Whatever the precise nature, timing and duration of Mr Brown's boxing training,          Dr Ballenden expressed the opinion that boxing related activities could not in themselves have caused the injury or condition complained of by Mr Brown.  He wrote:

"In terms of physical exertion body-neck position and working a heavy bag or speed ball (Neck extended) push-ups, pulls-up; these exercises are more likely to have caused a symptom flare than the nominated job activities, but also not necessarily have caused the disc herniation, which is the minor component in the presentation.

It is more likely the neck position during such aggressive high demand physical activity (boxing training) may have caused the nerve root to be impinged by the osteophytosis (bone projection into the lateral foramen).  Once this occurred, swelling and reaction around the nerve root would continue the symptom presentation."  (Exhibit 12 page 13)

  1. Later in the report he wrote that boxing activity "could have exacerbated symptoms from the underlying condition, but would not have caused the disc prolapse (the minor component of the problem) 'per se'.  It is the osteophyte or bone spurs that is embarrassing the nerve."  He continued:

"The commonest reason for such a presentation is the natural progression of the underlying degenerative condition which may be brought to light by such activity, but is not caused by it.  The boxing activity however is more probable as an aggravator of the condition than that of the suggested work activities in which there is no identifiable mechanism of causation."  (Exhibit 12 page 16)

  1. Dr Guazzo:  Dr Guazzo first saw and examined Mr Brown on 26 June 2014, on referral from Dr Flynn.  Mr Brown provided a history in relation to his work on the morning of 8 February 2014 (pulling and manoeuvring heavy moulds) when he developed neck pain and spasms.  That condition gradually worsened and he started experiencing symptoms radiating to his left arm. Dr Guazzo diagnosed that the clinical symptoms were consistent with a left C7 radiculopathy, i.e. pressure on the C7 nerve root causing symptoms of neck pain and radiating pain and sensory symptoms in the left arm due to a herniated disc on the left at C6-7.  It is not unusual for a patient to experience neck pain and spasm and then develop symptoms radiating into their arm.  Tingling and numbness in the hand and forearm were entirely consistent with the usual pattern of symptoms. 
  1. In a letter to Dr Flynn dated 26 June 2014, Dr Guazzo wrote:

"Based on the history available to me, the symptoms came on at work.  It seemed to be work related. …  With respect to his neck, he told me he has never had any neck injuries, though he has lived an active life including enjoying fishing and boxing.  … The MRI, which you arranged confirms a substantial disc protrusion on the left at C6-C7 consistent as the cause of his symptoms.  There are some pre-existing degenerative changes, but he had no symptoms attributable prior to the work-related injury."  (Exhibit 27)

  1. Dr Guazzo provided a written clinical report dated 12 January 2015 to WorkCover Queensland in which he stated that he had interviewed and examined Mr Brown on 26 June 2014 and 8 January 2015 and that the history and information provided was gained during those interviews and examination.  The report included the following statements:

"Based on the history related to me, Mr Brown has experienced a left C6-7 disc prolapse in a work-related injury in February 2014.  This was further aggravated in October 2014.

There was a pre-existing asymptomatic cervical spondylosis.

Based on the history related to me, it is my opinion that the surgery is primarily indicated to treat the original injury of February 2014."  (Exhibit 27)

  1. On 19 January 2015, Dr Guazzo provided answers to the following questions from WorkCover Queensland:

Q. Following the timeline of Mr Brown's activities, CT scan, and GP notes, in your medical opinion could the disc bulge have occurred from non work related activities?

A. Possible

Q. Based on the timeline of events, do you believe the [sic] your request for surgery is a direct result of WR event on 8 February 2014 or to treat an underlying condition?

A. Yes.  This is the first event of significant neck pain.  (Exhibit 27)

  1. In the course of his oral evidence, Dr Guazzo expressed his opinion that:
  1. the mechanism of Mr Brown pulling the bottom box along the rollers could be consistent with the disc prolapse;
  1. the neck pain and spasm occurred as a result of the disc prolapse. 
  1. In cross-examination, Dr Guazzo:
  1. agreed that Mr Brown's osteophyte degenerative changes were long-standing and increased the potential for disc disruption;
  1. stated that not all people with cervical degeneration develop disc protrusions;
  1. stated that (consistently with clinical consultation practice) he accepted what Mr Brown told him about what he had been doing at work;
  1. reiterated that the amount of force required for a protrusion can be quite minor;
  1. agreed that it was possible that a small amount of ordinary neck movement may have resulted in Mr Brown's disc prolapse, particularly given the background osteophytic changes;
  1. stated that the CT scan and MRI were consistent as the cause of the symptoms in Mr Brown's neck and left arm;
  1. stated that Mr Brown did not say anything to him about having engaged in boxing training at around the time he was injured;
  1. agreed that boxing training (e.g. skipping or calisthenics) might be sufficient to cause problems in a person who has degenerative changes in their cervical spine.
  1. Dr Guazzo agreed with Dr Ballenden that mechanisms such as axial compression loads and high impact torsional loads from external force can cause a disc protrusion.  However he did not agree that nothing else in terms of activity can cause a disc to herniate or degenerate.  In his practice, it is not uncommon to see people who experience a cervical disc protrusion from low impact injury or minor events such as coughing, sneezing, or a sudden twisting manoeuvre of the neck - provided they have some pre-existing degeneration.  In his opinion, it is unlikely that a disc protrusion can occur spontaneously.  Some rotational movement of the head or neck is necessary to create some load on the cervical spine for the disc protrusion to occur.  The load can be "very minor." 
  1. Dr Ballenden made the following observations about Dr Guazzo's evidence:
  1. there is no argument about the condition which Mr Brown suffers or the requirement for treatment, even surgery, and Dr Ballenden agrees with              Dr Guazzo in this respect;
  1. with respect to the "mechanism of causation," Dr Guazzo was reiterating what he has been told by his patient and it is not his role to question that information as such a lack of trust would form a very poor basis for the doctor/patient relationship;
  1. Dr Guazzo was not asked to forensically assess the situation, would not be familiar with the workstation or tasks, and is not specifically trained in the relationships between work and illness or injury;
  1. Dr Guazzo is specifically trained as a surgeon; and
  1. Dr Guazzo's report accurately reflects these things.
  1. Dr Coyne:  Dr Coyne prepared a detailed written report dated 27 February 2015 (Exhibit 29) in response to correspondence from the legal representatives of the Appellant.  He reviewed Mr Brown in his office on 16 February 2015 for the purpose of that report, and his conclusions were based on the history obtained and examination findings on that date, along with review of the documentation provided to him.  That documentation included the record of Innisfail Hospital in relation to Mr Brown's attendance on 9 February 2014, a report from Dr Jay dated 30 September 2014, a report from Dr Flynn dated 30 September 2014 and correspondence from Dr Guazzo.  Dr Coyne also had regard to the results of the CT scan on 7 May 2014 and an MRI scan of Mr Brown's cervical spine on 2 June 2014, and a DVD showing a worker guiding a mould core which had been lifted by a hoist.
  1. The history of the work incident recounted to Dr Coyne by Mr Brown was consistent with Mr Brown's oral evidence in these proceedings.  However I note that Mr Brown told Dr Coyne that the rollers were old and had sand in them, and that made manoeuvring the heavy moulding box difficult (Exhibit 29 page 1).  In his oral evidence, Dr Coyne said that the mechanism of pulling a moulding box was consistent with placing stress on the cervical spine such that a cervical spine disc injury could occur, particularly if the rollers became stiff or stuck as a result of being coated with sand.  He believed that there could be "strain and jarring to the cervical spine which could conceivably result in a cervical disc injury." Having sand in the rollers "increases the potential relationship of the activity to developing a disc prolapse" because, he imagined, it would require more force to pull on the moulding box, and there was also the potential for the moulding box to suddenly slow down or stop.  That could result in additional jarring to the spine.  Nonetheless, even if the rollers were not sticking and transmission was "relatively smooth," he thought that "there could be circumstances where pulling on the object could, if the angles were wrong, result in a cervical disc injury." 
  1. Dr Coyne assessed Mr Brown the day before his planned cervical spine surgery.          Mr Brown referred to constant left sided neck pain which radiated to the left side of his head, his left suprascapular region and left shoulder.  He said he experienced muscle tightness in these locations, and reported persisting numbness over his left posterior forearm and left index finger.  Mr Brown denied any history of neck pain or injury prior to the subject work incident (Exhibit 29).
  1. Dr Coyne's written diagnosis and opinion includes the following passages:

"Mr Brown's underlying primary physical diagnosis is neck pain and left upper limb radicular symptoms as a complication of cervical spondylosis (cervical spine degenerative disease).  In particular Mr Brown's cervical spine imaging performed following the subject incident has demonstrated a left C6/7 disc prolapse/osteophyte complex resulting in compromise of the left C7 nerve root.  This latter feature likely accounts for Mr Brown's left upper limb symptoms.

The imaging findings indicate both pre-existing (osteophyte) and likely more acute (disc prolapse) components.

Mr Brown's history suggests it is likely he had pre-existing C6/7 degenerative change (which was asymptomatic according to his history and documentation) on which a more acute disc prolapse occurred around February/April 2014, resulting in Mr Brown becoming symptomatic with neck pain and left upper limb radicular symptoms."  (Exhibit 29 page 6)

  1. In his oral evidence, Dr Coyne said that if Mr Brown had experienced no symptoms before 8 February 2014 and subsequent to the event at work had continual (though ebbing) pain, the work incident as described "was a significant factor - probably the most significant factor - in the development of a clinical condition."  He added that there was a requirement for an underlying degenerative change to be present for a disc prolapse to occur but, in the absence of an incident triggering the disc prolapse, it was not necessarily the case that the underlying degenerative disc change would ever become symptomatic.
  1. Dr Coyne did not agree with Dr Ballenden that there has to be a particularly violent force to cause a disc prolapse.  The way the force is transmitted through the disc, not just the level of force, is relevant.  Most of the time there is some, at least a small cause or trigger.  It is unlikely that a disc prolapse would occur spontaneously. 
  1. In Dr Coyne's opinion;

"It is impossible however to determine what might have caused a person to become acutely in symptomatic other than the person's history.  Underlying pre-existing degenerative change is a necessary pre-requisite for acute disc prolapses to occur.  Acute disc prolapse can occur spontaneously, with minimal force such as rolling over in bed or pulling on the handbrake of a motor vehicle, all with significant physical force on the cervical spine."  (Exhibit 29)

  1. The history that Mr Brown provided to Dr Coyne (and to Dr Guazzo) of developing cervical spine symptoms "during the course of heavy physical employment" was consistent with the C6/7 disc pathology noted on subsequent imaging and with               Mr Brown's employment being a significant factor in the development of his cervical spinal condition in February 2014. 
  1. Dr Coyne expressed the view that a scenario of Mr Brown experiencing neck pain which did not resolve entirely, followed by left upper limb radicular symptoms some weeks later, is consistent with an initial acute disc injury evolving into more prominent protrusion of disc ultimately resulting in nerve root compromise and radicular symptoms.  Such a progression was not an uncommon clinical scenario.  (Exhibit 29 pages 6-7)
  1. However, Dr Coyne had been provided with alternate histories for the development of Mr Brown's symptoms.  In relation to Mr Brown's boxing activities, Dr Coyne recorded Mr Brown's history that he had been in four fights in 2012, but that following his lumbar spine injury in early 2013 he had just one fight in November 2013.               Mr Brown told Dr Coyne that, due to his lumbar spine symptoms, he decided to cease participating in fights but obtained a boxing coaching certificate and performed coaching duties.  (Exhibit 29 page 5).  According to Dr Coyne:

"It is possible that boxing training could be the most significant factor in a condition such as is present in Mr Brown.  However from a medical aspect, one cannot say that a work incident involving physical stress to the cervical spine or boxing training is more likely to be the cause of symptoms.  From a medical aspect both scenarios are equally plausible, and essentially an insurer or a Court needs to judge the credibility of a claimant's history."  (Exhibit 29 page 7)

  1. Dr Coyne expressed the view that Mr Brown's attendance at Innisfail Hospital on 9 February 2014 "notably indicates two potential histories of injury" i.e., an injury at the foundry or boxing training.  Dr Coyne could:

"only comment that these contrasting histories of injury make it difficult to comment as to what may have been the principal underlying cause of                       Mr Brown's symptoms in February 2014. 

In summary, the principal issue involved in determining the aetiology of                  Mr Brown's cervical spine condition is the credibility of Mr Brown's history.  As has been discussed, a work related injury on 08.02.14, boxing training, or simply a spontaneous complication of underlying degenerative change are all equally feasible as a cause of Mr Brown's presentation in February/April 2012."  (Exhibit 29 page 7)

  1. In his oral evidence, Dr Coyne stated that:
  1. after providing his written report he had been provided with a further DVD showing the type of work described in the history of the incident; and
  1. his opinion remains as it was at 27 February 2015. 
  1. Dr Frazer:  For completeness, I note that on 9 February 2014 Dr Frazer diagnosed Mr Brown as suffering from a sprained trapezius which he said was consistent with:
  1. boxing training to excess; or
  1. pulling a heavy moulding box along rollers at chest height for about a metre and a half.

That consultation took about 10 minutes, and is described earlier in these reasons.  It is clear from later scans and examinations of Mr Brown's neck that the initial diagnosis was incorrect.

  1. Overview of medical evidence: There is no dispute about the nature of Mr Brown's condition as at February/April 2014.  The CT scan and MRI of his cervical spine, and the diagnoses made by the doctors as a result of their examinations of Mr Brown and those images, support a finding that Mr Brown had a C6-7 disc prolapse and an osteophyte complex at the same level, compressing or impinging the nerve root on the left side at C7.
  1. The medical evidence is less consistent as to the probable cause of the symptoms experienced by Mr Brown in February/April 2014, and whether such activities could have caused or expedited the disc prolapse.  Although all the doctors agree that he suffered a degenerative condition of the type just described, it would appear that that condition was asymptomatic until at least February 2014.  There are some differences of opinion as to what gave rise, or could have given rise, to the symptoms at that time.  In particular, in relation to the mechanism described by Mr Brown in his oral evidence (namely that he experienced neck pain when moving a moulding box along a row of rollers at the foundry on 8 February 2014):
  1. Drs Flynn, Guazzo and Coyne gave opinion evidence to the effect that the disc prolapse was consistent with the mechanism of injury alleged by Mr Brown, but conceded that it was consistent with other mechanisms (such as boxing related activity);
  1. Dr Jay gave opinion evidence that the general movement of neck and arms in the day-to-day activity of working on the BQ5 moulding line contributes to wear and tear, and it is not always possible to link the disc prolapse to a particular event (indeed there does not need to be an event to bring it on), and Mr Brown's condition was not necessarily linked directly to a work-related incident (although there may be aggravating factors, and boxing activities might cause problems of the type from which Mr Brown suffers); and
  1. Dr Ballenden was firmly of the opinion that Mr Brown's condition was degenerative and constitutional (rather than caused by work) and, from what he understood of the BQ5 line, there was "no mechanism in that which would be likely to cause or aggravate the condition of the cervical spine." 

Deciding between conflicting opinions of medical experts

  1. Various judgments describe the proper approach to be taken by a trier of fact (whether a jury, tribunal or court) in cases where there is a conflict of expert medical opinion evidence.  It is not necessary to deal with those authorities comprehensively or in detail.  It is sufficient to note that there is judicial authority for the following propositions:
  1. the tribunal of fact can be assisted by expert medical opinion evidence, but must weigh and determine the probabilities as to the cause of an ailment or injury having regard to the whole of the evidence;[11]
  1. the tribunal's duty is to find ultimate facts and, so far as it is reasonably possible to do so, to look not merely at the expertise of the expert witness, but to examine the substance of the opinion expressed and (where experts differ) to apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted;[12]
  1. only when medical science denies that there is a connection between, for example, certain events and a person's death can a judge not act as if there were a connection; but if medical science is prepared to say that it is a possible view, then the judge after examining the lay evidence can decide that it is probable;[13]
  1. the finding could be described as one based on the credibility of expert witnesses, having regard to such things as whether the witnesses display signs of partisanship in the witness box or lack of objectivity, and whether they make proper concessions to the viewpoint of the other side;[14]
  1. distinctions may be drawn on the basis of demeanour (a limited ground where experts are under consideration); qualifications, impressiveness and cogency of reasoning and exposition of reasoning; preparation for, and application to, the problem in hand; and the extent to which the witness had a correct grasp of basic, objective facts relevant to the problem;[15] and
  1. if it is open to the tribunal to prefer one body of evidence to the other on grounds fairly discerned, the tribunal should express its reasoned preference.[16]
  1. In applying those propositions in the present case, it is also necessary to remember that these proceedings are conducted as a hearing de novo and the Appellant bears the onus of proof on the balance of probabilities.
  1. In the present case, there is no issue about the qualifications or credibility of the expert witnesses.  Apart from Dr Frazer, each gave oral evidence by telephone.  That evidence was clear, frank and responsive to the questions asked by counsel.
  1. The findings in relation to how Mr Brown did or did not sustain his injury are relevant to the consideration of the expert medical opinion evidence about causation.  The basis of any expert report must be established before the opinion is relevant.  Hence, for example, if a doctor relied on a worker's account of an incident in order to form an opinion and if the Commission did not accept the worker's account, the evidence of the expert would be of little (if any) value because it was based on a scenario which the Commission found did not happen.[17]
  1. Appellant's submissions: The Appellant relies on the evidence of Dr Ballenden to the effect that the mechanism described by Mr Brown might have strained muscle or muscular ligament in his arm or shoulder, but would be highly unlikely to have injured his neck, there being insufficient force around, or load on, his neck to cause an injury.  Nothing seen by him on the DVDs could produce the type of injury complained of by Mr Brown.  On the other hand, discs degenerate spontaneously often with no known mechanism. 
  1. The Appellant is critical of the evidence of Dr Flynn in relation to the mechanism of injury, particularly given that his consultation notes do not record any such mechanism and the set of medical certificates which he signed specify different mechanisms.  The Appellant submits that the absence of any mechanism of injury in the medical notes for 15 May makes it difficult to accept that Dr Flynn can recall being told about the mechanism of injury he described in his evidence.  Rather, it appears more likely that his evidence was a reconstruction of the injury mechanism based upon later events, including information from the surgery performed by                  Dr Guazzo.  In addition, Dr Flynn was unfamiliar with the BQ5 moulding line and was unaware of the recorded reasons for Mr Brown's presentation at the Innisfail Hospital on 9 February 2014 and 20 April 2014.  However, Dr Flynn was satisfied that Mr Brown suffered from a C6-7 disc prolapse and there was evidence of osteophytosis at the C7 level. 
  1. The Appellant notes that Dr Guazzo saw Mr Brown well after the events in issue and accepted Mr Brown's explanation of the mechanism of injury at face value.  He agreed that people such as Mr Brown who have signs of cervical degeneration always have the latent possibility of a disc prolapse and in this case it was open to conclude that a very small amount of ordinary neck movements may have resulted in a disc prolapse, and hence pain.  At the time of treating Mr Brown, however, Dr Guazzo knew nothing about Mr Brown's participation in boxing.  In his opinion, boxing training could produce a cervical disc prolapse (and hence pain) in the case of a person with degenerative changes in the cervical spine.
  1. The Appellant also notes that Dr Coyne observed that the industrial process recorded on the DVDs was not as physical as the version of events given to him in person by Mr Brown.  He conceded that boxing training could cause the injury.
  1. Respondent's submissions: The Respondent submits that the following factors are relevant to assessing the medical evidence:
  1. Dr Guazzo, the treating neurosurgeon, and Dr Coyne, who was engaged by the Appellant, are both very experienced neurosurgeons who commonly treat and operate on cervical disc protrusions and agreed on the causal link between the work activity and disc protrusion;
  1. the proposition that some force, albeit minor, must be applied to cause a disc prolapse in a degenerative disc is logical and scientifically sound;
  1. Dr Guazzo and Dr Coyne based their opinions on an accurate history of the activity and subsequent course of symptoms, whereas Dr Ballenden did not;
  1. Dr Ballenden acted in role of arbiter of facts and followed on from this in his conclusions;
  1. Dr Ballenden assessed the degree of force from looking at the DVD and his knowledge of foundries, whilst admitting that the degree of force was dependent on many factors present on the day;
  1. Drs Coyne and Guazzo provided the basis that it was possible in their expert opinion that the activity performed by Mr Brown could have caused the disc prolapse.
  1. The Respondent submits that the evidence of Dr Guazzo and Dr Coyne should be preferred, and would support a logical finding that the work activity as described by Mr Brown was a significant contributing factor to his disc prolapse or exacerbation of cervical spondylosis.  It would also support a finding that Mr Brown's work injury "arose out of his employment," there being a strong causal connection between his employment and his injury.[18]
  1. Conclusions: Having considered carefully all the medical opinion evidence in the context of the other evidence (including scans and the type of work undertaken and activities engaged in by Mr Brown) and the parties' submissions, I:
  1. accept the evidence of Dr Guazzo and Dr Coyne that where there is (as here) existing cervical degeneration, some force is required to cause a disc prolapse, but that force can be quite minor, and would involve some movement of the neck or head;
  1. do not accept Dr Ballenden's arguments that only mechanisms such as axial compression loads or high impact torsional loads from external forces could cause a disc to herniate, or that the prolapse was spontaneous due to natural progression;
  1. find that, given Mr Brown's degenerative cervical condition,[19] it would take a minor movement (particularly of his head or neck) to precipitate a disc prolapse and give rise to symptoms of the type he experienced; and
  1. the work activity described by Mr Brown in moving a moulding box and twisting or turning his neck might have been sufficient to cause his disc prolapse at C6-7.
  1. However, that does not dispose of the appeal because the parties did not agree, and there was not uncontroverted evidence, about what actions caused the prolapse, and whether the actions were work related or involved some other activity, e.g. boxing or boxing exercise.

Submissions

  1. The parties' representatives made detailed written submissions in relation to this appeal.  Some of the matters raised in those submissions are dealt with (albeit without direct reference to the submissions) earlier.  It remains only to deal with the main submissions made by each party.  In light of the detailed consideration of the evidence earlier, those submissions can be set out reasonably briefly.
  1. Appellant's submissions: At the heart of the Appellant's submission is an attack on the credibility of Mr Brown.  It submits that little weight should be attached to any of his evidence having regard to:
  1. an impression that his evidence-in-chief had been rehearsed by him;
  1. his inability to recall at the earliest time (19 May 2014) how the alleged incident on 8 February 2014 had occurred, yet at the hearing his account descended to the minutiae;
  1. the various additional embellishments that are replete throughout his later version of events (e.g. sand in the rollers, using the right grip and pulling across his body with his left hand, the arrival of Mr Chioatto on the forklift, etc.);
  1. the inconsistencies and gaps contained within his own diary notes of what should have been important detail (Exhibit 20); and
  1. the inability to reconcile the uninterested and direct testimony of Dr Frazer about the stated cause of injury on 9 February 2014 with Mr Brown's testimony.
  1. As to the precise circumstances of the event said to have caused the injury, the Appellant relies on the evidence of Mr Ghietti that, sometime after smoko, he requested assistance from Mr Brown who then worked at the rolling table where a moulding box was located.  Mr Ghietti was experiencing difficulty lowering cores into the bottom box.  Mr Brown demonstrated the best way of strapping the core and Mr Ghietti went back to making boxes on the chest high drag.  When Mr Brown called out, Mr Ghietti turned to hear Mr Brown say "I can't do this any more."  At that time Mr Brown was standing on the other side of the rollers from Mr Ghietti strapping the cores.  Mr Ghietti could not recall Mr Brown helping him on the drag.  Mr Ghietti did not see Mr Brown sustain an injury and was told by Mr Brown only that he was "feeling a bit sore."
  1. The Appellant submits that:
  1. while there is room for some intuitive reasoning when determining whether a worker has suffered an injury within the meaning of the Act, regard must still be had for the manner of injury that has been specifically alleged by the worker and, in the process of determining that question of fact, the Commission cannot substitute its own speculation for proper satisfaction on the balance of probabilities;[20]
  1. the exercise is not one that can be conducted in the teeth of contrary evidence (such as the account now given by Mr Ghietti) that puts Mr Brown at a different place, engaged in a different task (i.e., at the rolling table rather than at the drag); 
  1. Mr Ghietti's evidence should be preferred over that of Mr Brown who, it submits, was engaged in a process of reconstructing what happened rather than recalling precisely what occurred.
  1. The Appellant's submission also refers to different descriptions of the mechanism of the work-related injury advanced by Mr Brown, or those who have prepared documents based on what he told them, including:
  1. telling the triage nurse on 9 February 2014 it was from work at the foundry including "some lifting" (Exhibit 28), see also Dr Flynn's reference to "heavy lifting" on the medical certificate of 16 May 2014 (Exhibit 8 and 23);[21]
  1. apparently telling Mr Fichera that he first experienced symptoms whilst working on the QCT moulding line;
  1. telling Mr Fichera he was using a swing jib hoist to place cores when he felt a gradual tightening of muscles in the left side of his neck;
  1. telling Dr Flynn that he was turning or twisting his neck while moving the moulding box;
  1. telling Dr Flynn he was "manipulating castings and mouldings" which Dr Flynn understood could have been a box or a round shaped device;[22] and
  1. as he reiterated at the hearing, reaching with his left arm to pull or drag a moulding box along the chest high rollers.
  1. The Appellant asks why, if at the hearing Mr Brown had a firm and clear view about how he sustained his injury, he did not have such a clear view and express it when he was given opportunities to do so closer to the event?  The Appellant submits that the reason is that the version of events given during the hearing was a reconstruction of how he might have been injured at work. (Submission para 73)
  1. The Appellant also refers to:
  1. Dr Frazer's evidence about Mr Brown's condition being caused by excessive boxing training; and
  1. the triage nurse's report on 20 April 2014 of Mr Brown reporting a blunt injury with painful left shoulder and neck stiffness after boxing exercise on                    19 April 2014 (Exhibit 1) and leaving the hospital before receiving any treatment.    
  1. As to when the Appellant knew of the alleged link between Mr Brown's condition and an event at work, the Appellant submits that the preponderance of the evidence supports a finding that 22 April 2014 was the first occasion on which the employer could have had an appreciation of an alleged connection between Mr Brown's symptoms and his employment.  In particular:
  1. although Mr Fichera was broadly aware that Mr Brown had been away from work with neck and shoulder pain, he was not aware that Mr Brown was alleging that there was any nexus between his symptoms and his employment until 22 April 2014, approximately 10 weeks after the alleged incident;
  1. although Mr Brown contends that he told Ms Rees that he would "speak to Joe" about his absence from work in the week 10 to 17 February 2014,             Mr Vecchio told the Commission that he did not speak to Mr Brown at any time around than and was not even aware that Mr Brown was relating his injury to his employment until he received two WorkCover medical certificates from Dr Flynn in mid-May 2014;
  1. the Incident/Injury Report was not completed until 19 May 2014 because of the need for input from Dr Jay.
  1. The Appellant submits that:
  1. it is inherently improbable that Mr Brown told Mr Chioatto that he was feeling sore in the neck when Mr Chioatto arrived on a forklift on 8 February 2014;
  1. in light of Mr Chioatto's evidence, the conversation about leaving early due to pain did not occur; and
  1. had Mr Chioatto been told these things, he would have reported them to             Mr Fichera.
  1. On a related issue, the Appellant submits in relation to Mr Brown's consultations with Dr Jay on 5 and 12 May 2014 that:
  1. on 5 May 2014, Mr Brown did not say what he had been doing at work and            Dr Jay found no obvious work related trauma and indeed considered that his condition was unlikely to be work-related;
  1. Mr Brown did not tell Dr Jay about any specific mechanism of injury referable to Mr Brown's employment, but told Dr Jay that his symptoms seemed to be getting worse when he did his work;
  1. Dr Jay's evidence should be preferred in any factual contest between                       Mr Brown and Dr Jay about what was said by Mr Brown to Dr Jay on 5 May 2012 because that account is corroborated by clinical notes made by Dr Jay at the time and by the evidence of Mr Fichera who was present at the consultations.
  1. The Appellant submits that the appeal should be upheld, with costs,
  1. Respondent's submissions: The Respondent submits that Mr Brown was a credible witness and that his statements about his injury are consistent.
  1. In support of a finding that (despite no direct witnesses to an "event") the injury occurred on the morning of 8 February 2014, the Respondent points to:
  1. the medical records that do not show any previous evidence of neck problems;
  1. Mr Brown having worked for two or three hours that morning before the onset of pain (and having worked every day during the previous week for eight hours without any problem);
  1. Mr Brown's presentation at Innisfail Hospital on 9 February 2014 and the triage record of Mr Brown's statement "Working at foundry yesterday some lifting felt muscle spam [sic spasm] left shoulder blade and left side of neck, today painful to move neck" (Exhibit 28);
  1. the records of Innisfail Physiotherapy of 10 February 2014 to the effect that Mr Brown experienced the painful symptoms after moving a box at work on 8 February 2014. 
  1. As to the precise circumstances of the event said to have caused the injury, the Respondent submits that there is no inconsistency in the evidence of Mr Brown and Mr Ghietti in relation to the moulding box that was ready for coring.  Mr Ghietti did not say whether it was on the coring rollers or still on the rollers on the bottom box line.  Mr Brown's evidence is that he moved a bottom box that was finished to the end of the rollers on the bottom box line.  Nor is his evidence inconsistent with Mr Ghietti's to the effect that he would get a third person to help get a box and put it down, meaning from the bottom box rollers to the coring rollers.
  1. Furthermore, the Respondent submits, it was not the evidence of Mr Brown that he complained of pain to Mr Ghietti at the time and place which he first experienced pain, i.e. when he was on the bottom box line.
  1. The Respondent submits that Mr Ghietti's evidence is consistent with Mr Brown suffering the onset of left neck/shoulder pain whilst working on the BQ5 line between 10.00 and 11.00 am on 8 February 2014.  Mr Ghietti would not be expected to enquire into the details of how and when the pain commenced, and was focused on catching up with his allocated work.  The discussion took place in a noisy environment where hearing protection was standard.  He was not asked about his recollection of the day until seven months later. 
  1. Mr Fichera's evidence in relation to the QCT line was that he was called over to that line on 22 April 2014 by Mr Lyons, and Mr Brown advised his neck pain was getting worse and he was getting pain and numbness in his left hand.  Mr Brown expressed concern that it was the coring job there that was making his pain worse.  They discussed what Mr Brown could do in the foundry.  That is consistent with Mr Brown's evidence.
  1. The Respondent also submits that Mr Brown's own statements about his injury are consistent.  The lack of records supports his evidence that his employer and the company doctor did not seek sufficient detail of his injury.  So, for example, in preparing the Incident/Injury Report Mr Fichera did not wait for Mr Brown's answers but wrote what he wanted to write.
  1. As to the suggestion that Mr Brown's condition was caused by boxing or boxing related activity, the Respondent submits that there is insufficient evidence to find that boxing was the cause of Mr Brown's injury and that work activity on 8 February 2014 was not a significant contributing factor.  In support of that conclusion, the Respondent submits:
  1. there were no eyewitnesses called to contradict any of the evidence of                 Mr Brown or Mr Norman that Mr Brown had not participated in a boxing bout since 3 November 2013 and had not been injured in that one round bout,               Mr Brown had not commenced the season training juniors before 8 February 2014, Mr Brown had not commenced his own senior training with Mr Norman before 8 February 2014, Mr Brown did not recommence training juniors in February 2014 because of his neck injury, and Mr Brown's boxing training or exercise in early 2014 consisted of jogging, sit-ups, push-ups and general fitness but he did not have a speedball or heavy day at home;
  1. although Dr Frazer said he recalled being told that the boxing training involved a punching bag, he could not recall when this alleged activity had taken place and "didn't really go on any further than that;"
  1. overall, Dr Fraser had no recollection of a short consultation about what he diagnosed to be a minor condition, he had no independent recollection of               Mr Brown, and he did not recall when he wrote his brief record (which made no reference to the history provided in the triage record and contained no detail of the mechanism or timing of injury);
  1. the reference in the triage report of 20 April 2014 to "Injury – Blunt injury" was a drop-down box, and Ms Clark agreed in cross-examination that she had no idea what the boxing exercise was.  By comparison, Mr Brown said he did attempt to do some skipping on the afternoon before and could not do it any more and was "probably referring to the skipping" when he spoke to the triage nurse.  He said he was not there to discuss the original injury, but went to seek pain relief.  The Respondent submits that there is no significant inconsistency in Mr Brown's evidence. 
  1. As to when the Appellant knew of the alleged link between Mr Brown's condition and an event at work, the Respondent submits that:
  1. it is not correct to say that on the balance of evidence Mr Fichera only became aware that Mr Brown was alleging a nexus between his symptoms and his employment until 22 April 2014;
  1. despite having been told about the work injury as early as 17 February 2014, Mr Fichera made no attempt to properly record or report the injury until 19 May 2014 (having assessed the injury as minor and having tried to manage it himself without a formal process);
  1. as a result of Mr Fichera's email of 14 May 2014, Mr Vecchio and national management were made aware of Mr Brown's neck problems and the potential of a work related injury;
  1. it is not correct to state that the Incident/Injury Report could not be completed without the input of Dr Jay and, on this point, Mr Fichera's evidence about the delay (i.e., that it takes some time to investigate) was unconvincing, especially as no "investigation" was ever done, and Dr Jay did not provide any input to the incident report form (whether directly or indirectly). 
  1. On the related issue, the Respondent submits in relation to Mr Brown's consultations with Dr Jay that it is not correct to say that Dr Jay's evidence about the consultation was supported by Mr Fichera.  Dr Jay asserted that he attempted to take a history of the mechanism of injury and question Mr Brown about that (although his brief notes do not refer to any date or mechanism of injury).  However, Mr Fichera said that the discussion was about symptoms, and the mechanism of injury was not discussed.            Mr Fichera's evidence was more consistent with Mr Brown's assertion that Dr Jay did not ask questions about exactly how the injury was done, but was just concerned about symptoms.
  1. The Respondent also submits that it beggars belief that a workplace health and safety adviser who was responsible for employees' injuries, who admits that he had been told on more than one occasion of the alleged work injury, and who takes that employee to the doctor chosen by the employer, would not ensure that the mechanism of injury was raised and properly explored. 
  1. In conclusion, the Respondent submits that the appeal should be dismissed because:
  1. Mr Brown was a worker;
  1. on the balance of the evidence at hand, Mr Brown suffered a personal injury being a prolapsed disc or an exacerbation of his cervical spondylosis on 8 February 2014;
  1. the onset of Mr Brown's symptoms occurred during the performance of his work duties on 8 February 2014 and hence arose in the course of his employment; and
  1. the medical evidence supports a logical and common sense finding that the work activity on 8 February 2014 was a significant contributing factor to           Mr Brown's injury and, although not necessary, that Mr Brown's injury arose out of his employment.

Consideration and conclusion

  1. As noted earlier in these reasons, the Appellant can only succeed in this appeal if it satisfies the Commission on the balance of probabilities that:
  1. the event at the foundry did not occur on 8 February 2014; or
  1. if such an event occurred, it was not a significant contributing factor to the neck condition suffered by Mr Brown.
  1. Although the onus to be discharged is on the balance of probabilities, the Commission must feel an actual persuasion before the alleged facts can be found to exist. In cases where the worker is the appellant, the mere possibility of the 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.  It is not necessary, however, for an appellant to prove every fact or conclusion of fact upon which the issue depends.  Legitimate and reasonable inferences can be drawn.[23]  The same approach should be taken in deciding whether an employer appellant has discharged the onus that it bears.
  1. While there is room for intuitive reasoning when determining whether a worker has suffered an injury within the meaning of the Act, in the process of determining that question of fact, the Commission cannot substitute speculation for satisfaction on the balance of probabilities.[24]
  1. Despite the Appellant's submissions, I do not proceed on the basis that little weight should be attached to any of Mr Brown's evidence.  Nor do I accept his evidence without qualification.  His evidence was, for the most part, consistent on key issues.  Some of the variations or inconsistencies can be explained by reference to the effect on his memory of the passage of time between the events and his various statements,  and to the very specific questioning to which he was subject during the hearing.  His explanations of differences between his contentions or recollections and those of others need to be assessed by reference to that other evidence, rather than dismissed out of hand.
  1. Submissions were made highlighting apparent inconsistencies about matters of detail such as the precise time at which Mr Brown commenced working on the BQ5 moulding line and the time taken to perform certain tasks.  In my view, having regard to such factors as the nature of the work in the foundry, the period that elapsed between the activities and the time when people were giving oral evidence in relation to them, and the evidence of Mr Brown that he does not wear a watch at work and the evidence of Mr Ghietti that there is no clock in that area of the foundry, nothing turns on some of the fine differences identified in those submissions. 
  1. Before moving to what I consider to be the critical aspects of the evidence, I note that (as will be readily apparent from these reasons) most of the evidence concerned what happened after 8 February 2014.  Yet the issue in this case is whether a workplace incident occurred on that date.  Evidence about subsequent action or inaction on the part of people who gave evidence in these proceedings is helpful to a degree, including as to the credit of individual witnesses, and the nature of some workplace relationships, e.g. between Mr Brown and Mr Fichera.  However, it is of limited use in reasoning backwards to determine what, if anything, happened on 8 February 2014.  Of more significance is what Mr Brown's circumstances were on and immediately before that date, and the interactions he had with people about his physical symptoms and condition in the days immediately afterwards.
  1. The only evidence in relation to Mr Brown's physical condition on and immediately before the morning of 8 February 2014 is that he was fit, in good health and experienced no symptoms in relation to his cervical spine.  In other words, although the extent of the degenerative condition around his C6-C7 was subsequently ascertained, that condition was asymptomatic before 8 February 2014. 
  1. Accordingly, I find that Mr Brown had not experienced any symptoms of that degenerative cervical condition before he went to work on 8 February 2014.  That finding is supported by Mr Brown's work record in the previous week and Dr Frazer's evidence that on 9 February 2014 Mr Brown had no other injuries and was fit and well.
  1. In order to decide whether the relevant "event" occurred in the workplace later in the morning of 8 February 2014, it is necessary to consider the evidence about the activity in which Mr Brown was engaged and his location on the BQ5 moulding line.
  1. The oral evidence was not crystal clear.  Mr Brown's account and Mr Ghietti's account are summarised at [20] to [24] and [30] to [35] respectively.  I need not repeat them.
  1. If Mr Brown's account is correct then it would appear that, for at least some of the time, he was standing close next to Mr Ghietti at the drag while moving the bottom box.  If so, it is surprising that neither man mentioned that.  However, that is explicable by Mr Brown's evidence that when he moved the bottom box along the rollers,            Mr Ghietti had walked off to the left to prepare another box.
  1. In the absence of an independent eyewitness to the event or events, I have come to the conclusion that Mr Ghietti's account is both comprehensive and convincing.  Given the difficulties that Mr Ghietti was having in inserting cores into the moulds on the lower rollers and his request to Mr Brown to assist with putting cores into moulds, I am satisfied that Mr Brown demonstrated the best way to put a strap on to a core and did some coring work at the lower rollers. 
  1. Mr Ghietti's evidence does not conflict with Mr Brown's account of the event.  Indeed, Mr Ghietti's evidence that he "looked over to see [Mr Brown] putting the boxes down" in the location where Mr Brown was strapping the cores is consistent with Mr Brown moving a moulding box from the drag to the lower rollers for coring.  It is at that time that Mr Ghietti recalls Mr Brown first saying to him that he was feeling sore and indicating the area at the top of his left shoulder.  The fact that Mr Ghietti does not recall Mr Brown coming to the side of the rollers where he was working does not mean that Mr Brown did not do so, particularly given the sequence of tasks that the three men were involved in at that time and in that area of a noisy foundry.  Indeed, Mr Ghietti gave evidence that usually when a third person comes over to assist, the corer will help on both sections, i.e. they will help move a box on the drag machine if that's necessary so that they can do coring work.
  1. The effect of the evidence is that Mr Brown was engaged in a range of associated activities including moving and manoeuvring moulding boxes and working with cores.  As part of that work, Mr Brown used the overhead crane.
  1. As noted earlier, Mr Ghietti's evidence was that the task of moving a moulding box along the rollers is relatively easy for someone who knows what they are doing.            Mr Brown is such a person.
  1. That observation is consistent with my impression from viewing the process at the foundry immediately before the commencement of the hearing of this appeal, and the DVDs in evidence (Exhibit 16 and 17).  I find that Mr Brown tended to overstate the degree of physical effort involved in moving a moulding box, and there was no corroborating evidence that the action of the drag was affected by sand on 8 February 2014.
  1. That finding does not mean that the appeal must succeed.  The medical evidence set out earlier supports a finding that, given the degenerative condition of Mr Brown's cervical spine at the C6-C7 level at around February 2014, it would take relatively little action or pressure from moving his head or neck to precipitate the prolapse of the disc at that level.  That prolapse, together with the existing associated osteophytosis, would give rise to the symptoms that he experienced.
  1. The question then is whether a work-related activity such as moving a moulding box in the way described by Mr Brown precipitated the disc prolapse and, if so, whether as a consequence Mr Brown's employment was "a significant contributing factor" (as that expression has been interpreted)[25] to his injury.
  1. There is no issue, and I find, that Mr Brown was involved in manual work involving moulding boxes and cores at the foundry, that he informed Mr Ghietti on two occasions during the morning shift on 8 February 2014 that he was feeling sore and that he was having difficulties continuing with his work, and that Mr Brown experienced increasing pain and tightness around his neck during that period.
  1. I find that:
  1. Mr Brown first experienced the symptoms of what was later diagnosed as a disc prolapse at C6-C7 when pulling a moulding box along the drag rollers, an activity that involved turning or twisting his neck;
  1. Mr Brown suffered an injury arising in the course of his employment; and
  1. his employment was a significant contributing factor to the injury.
  1. If that was the only evidence and finding on this point, then the appeal could not succeed.  However, three other matters need to be considered.
  1. The first is whether boxing and related activities could have been a contributing factor, even a significant contributing factor, to the injury suffered by Mr Brown. 
  1. The evidence summarised and considered earlier in these reasons for decision shows that:
  1. at different times before early February 2014, Mr Brown engaged in personal boxing training, the training of juniors at the Police Citizens Youth Club gymnasium, and participated in four boxing matches up until 2 November 2013 (and was not injured in any of those fights);
  1. when he presented at the Innisfail Hospital on Sunday 9 February 2014,           Dr Frazer recorded that Mr Brown was engaged in boxing training to excess;
  1. on Sunday 20 April 2014, the triage nurse at Innisfail Hospital noted that              Mr Brown had a "blunt injury" and was experiencing a painful left shoulder and stiffness after "boxing" exercise the previous day;
  1. Dr Ballenden's report dated 16 February 2015 states that after his last boxing match in November 2013 Mr Brown was involved in boxing training (but not boxing matches) and continued to train "extensively," and he "trained hard," including working on his speed ball and on the heavy bag.
  1. Mr Brown sought to minimise the effect of this evidence in various ways.  For example, he suggested that Dr Frazer was incorrect in his consultation note and recollection, that his boxing exercise for periods after 8 February 2014 was not strenuous, and that he did not have (and hence, by implication, did not use) a speed ball or heavy bag.
  1. It seems unlikely, and I am not satisfied, that all of the people who gave evidence in relation to the boxing activity could have been mistaken.  Each of them operates independently of the others and is trained to take notes of conversations with and examinations of patients.  They had no reason to record information of this sort that was not provided to them by the person they are assessing.  In particular I note that Dr Ballenden observed in his report that Mr Brown advised that he was "ordered" to attend on Dr  Ballenden and was worried about that and the fact that the doctor had been selected by his company.  His mood appeared low and his expression flat, but he did converse normally.  In such circumstances, and at a time some 12 months after the alleged event in the workplace, it would be surprising that Mr Brown would describe his boxing related activities to Dr Ballenden in such detail unless it was accurate, or that Dr Ballenden would make such a specific reference if Mr Brown had not provided him with that information.
  1. Of the doctors who considered whether boxing activity could have contributed to              Mr Brown's condition:
  1. Dr Jay considered that boxing might cause problems of the type from which Mr Brown suffers;
  1. Dr Flynn (who had certified Mr Brown as "fit to box" on 31 October 2013) agreed that boxing training might produce some form of injury or sprain to the shoulder or neck, and stated that, if Mr Brown sustained a prolapsed disc on 8 February 2014, a subsequent attempt to do skipping would be likely to exacerbate the pain he experienced;
  1. Dr Ballenden observed that it appeared that Mr Brown was well enough some time after February 2014 to return to boxing training (which implies a resolution of symptoms at least to a level where Mr Brown could engage in vigorous exercise again), and also suggested that the "blunt injury" referred to in the record of 20 April 2014, although not defined, was not something that Mr Brown could have given himself doing boxing training;
  1. Dr Ballenden expressed the opinion that boxing related activities could not in themselves have caused the injury or condition complained of by                   Mr Brown, but these exercises are more likely to have caused symptom flare than the nominated job activities, and it was more likely that the neck position during such aggressive high demand physical activity (boxing training) may have caused the nerve root to be impinged by the osteophytosis, and boxing activity could have exacerbated symptoms from the underlying condition (without causing the disc prolapse which he described as the minor component of the problem);
  1. Dr Guazzo agreed that boxing training (e.g. skipping or calisthenics) might be sufficient to cause problems in a person who has degenerative changes in their cervical spine; and
  1. Dr Coyne stated that it was possible that boxing training could be the most significant factor in a condition such as is present in Mr Brown, but he could not say that a work incident or boxing training was more likely to be the cause of the symptoms as, from a medical aspect, both scenarios were equally plausible.
  1. The effect of that evidence is that boxing training might have contributed to                  Mr Brown's condition, given that he had degenerative changes to his cervical spine, and that after the disc prolapse such training would exacerbate the pain he experienced. 
  1. Against that is the Respondent's submission (set out in detail at [257]) that there is insufficient evidence to find that boxing was the cause of Mr Brown's injury and that work activity on 8 February 2014 was not a significant contributing factor.
  1. Having regard to the evidence as a whole, I find that Mr Brown understated and sought to minimise the degree to which he was involved in boxing training at the relevant time.  The records of Dr Frazer on 9 February 2014 and the triage nurse on 20 April 2014 cannot be ignored or explained away, even if in their brevity they might create an impression of greater activity than Mr Brown undertook. 
  1. Nonetheless, there is no evidence to suggest that Mr Brown experienced any of the symptoms caused by his disc prolapse and associated osteophyte before he commenced work on 8 February 2014.  Although boxing training might have expedited the degeneration that was already well advanced, I find that it did not give rise to the symptoms Mr Brown experienced at the foundry between 10.00 and 11.00am on 8 February 2014. 
  1. If I am wrong in that conclusion, I am satisfied that the result would still be the same in the sense that Mr Brown's employment was "a significant contributing factor" to his injury.  In Calder v Simon Blackwood (Workers' Compensation Regulator),[26] O'Conner DP relied on the decision of Hall P in Q-COMP v Green[27] for the proposition that where the Act speaks of employment being a significant contributing factor, the word "significant" is used in the sense of "important" or "of consequence." O'Connor DP continued: "The use of 'a' significant contributing factor indicates that there can be more than one significant factor."[28] 
  1. Even if boxing related activity contributed to the disc prolapse on 8 February 2014, I find that Mr Brown's work-related activity was a significant contributing factor, indeed the major significant contributing factor.
  1. Second, there is an issue about the contents of Mr Brown's phone call to Ms Rees on 10 February 2014.  The answer "No" recorded in response to the question "Is the illness work related?" is not in dispute.  Mr Brown asserts that he told Ms Rees "It is work-related.  However, you can put it down as No and I'll speak to Joe [i.e.,                     Mr Vecchio] when I return to work."  Ms Rees gave evidence that Mr Brown did not mention that but gave a simple "No" answer.  Mr Brown's explanation for this otherwise curious answer to the question includes:
  1. knowing that the Appellant would want to avoid a time lost injury claim;
  1. being in significant pain and wanting to avoid an experience similar to that following his lower back injury in 2013 when others from the foundry would come to his home in a work vehicle and take him to the foundry to be scanned in; and
  1. being concerned about his employment.

At that stage, the only diagnosis Mr Brown had was a sprained muscle.  Mr Brown stated that Dr Frazer told him that the injury was minor.  The treatment was for a soft tissue injury.  At 28 years of age and in otherwise good health, it was reasonable to expect on the basis of his consultation with Dr Frazer that Mr Brown would be fit for work in about one week's time.

  1. In the circumstances peculiar to Mr Brown, including his experience after his injury in 2013 (which was largely corroborated by the evidence of Mr Fichera, Mr Chioatto and Mr Vecchio), I accept Mr Brown's explanation for why he answered "No" to the question.  I have difficulty, however, in deciding whether to prefer his evidence or that of Ms Rees in relation to the contentious part of the telephone call.  For the purpose of deciding this appeal, it is not necessary to make a finding in relation to that.  I note, however, that, whatever his intention on 10 February 2014 (and whether or not he gave that full response to Ms Rees), Mr Brown did not speak to Mr Vecchio about the matter on his return to work.  Had he done so, it is possible that the proceedings that led to this appeal would not have been necessary.
  1. Third, I am concerned about the apparent lack of record prepared by the Appellant in relation to Mr Brown's injury.  In part, that seems to be explained by Mr Brown's advice, recorded by Ms Rees, that his injury was not work-related.  Understandably, having regard to that response and the Appellant's policy in regard to workplace injuries, the Appellant through Mr Fichera proceeded on that basis.  Mr Brown did not assist by not taking opportunities to press his claim of a work related injury earlier and more persistently, including with Dr Jay and when he had the opportunity on           19 May 2014 when the Incident/Injury Report was being prepared.  Whatever misunderstanding Mr Fichera had of key events, and whatever the tension between Mr Brown and Mr Fichera on that occasion, I am satisfied that Mr Fichera was attempting to identify precisely the root cause of Mr Brown's injury or condition.  Despite the presence of his support person, Mr Brown was not as forthcoming as he might have been.  Nonetheless, that later imprecision cannot of itself determine whether he suffered an injury on 8 February 2014 and whether the injury was work-related.
  1. From the findings set out at various places in the preceding reasons it is clear that I am satisfied that:
  1. Mr Brown suffered an injury comprising a prolapsed disc at C6-C7;
  1. the injury arose in the course of his employment at the Appellant's foundry during the morning of 8 February 2014;
  1. his employment was a significant contributing factor to the injury. 
  1. Accordingly, the Appellant has not satisfied me on the balance of probabilities that the event at the foundry did not occur on 8 February 2014 or that, if such an event occurred, it was not a significant contributing factor to the neck condition suffered by Mr Brown.

 Orders

  1. It follows from those conclusions that:
  1. the appeal is dismissed;
  1. the decision of the Respondent is confirmed;
  1. the Appellant is to pay the Respondent's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.
  1. Order accordingly.

Footnotes

[1] See State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447, and the more recent decisions in State of Queensland (Department of Communities Disability Services) AND Q-COMP and Saskia Germaine Bettels (WC/2011/247) - Decision State of Queensland AND Q-COMP and Mrs B (C/2013/2) - Decision , Myer Holdings Ltd AND Q-COMP (WC/2013/118) - Decision , Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301.

[2] WorkCover Queensland v BHP (Qld) Workers' Compensation Unit [2002] QIC 27.

[3] The green sand used in these mould boxes contains bentonite clay, coal dust, silica sand and water which activates the clay and binds the contents. 

[4] That process involves the crane jib being attached to the bottom box and lifting it, so that a worker can manoeuvre the box for up to a couple of metres and lower it onto a piece of plywood at the end of another lower row of rollers. 

[5] Mr Fichera and Mr Vecchio.

[6] The extent of Mr Brown's boxing training is considered later in these reasons. (see [165] to [172])

[7] Mr Vecchio, Wayne Plant (the regional safety officer) and Liz Wilson (the national injury manager).

[8] Dr Ballenden described exacerbation and aggravation as meaning a permanent worsening of a condition. 

[9] A forceful rotation of the head on the shoulders from the head being twisted or turned hard. 

[10] A direct longitudinal load from top to bottom through a part or segment of the spine. 

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

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

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

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

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

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

[17] Newman v Blackwood [2015] ICQ 014, [4], [7].

[18] See Kavanagh v The Commonwealth (1960) 103 CLR 547, 556 (Dixon J) and 558 (Fullagar J); Avis v WorkCover Queensland (2000) 165 QGIG 788 (Hall P); WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6, 7 (Hall P); Lackey v WorkCover (2000) 165 QGIG 2. 

[19] Comprising both the osteophytosis and the degenerative disc.

[20] See Nilsson v Q-Comp (2008) 189 QGIG 523, 526 (Hall P).

[21] That was subsequently replaced by Exhibit 22 which referred to "manoeuvring moulding box on pinion and placing cores into moulding box".

[22] Although in cross-examination Dr Flynn recalled Mr Brown telling him that he was shoving or twisting a box, or manoeuvring a moulding box along rails.

[23] See MacArthur v WorkCover Queensland [2001] QIC 21; (2001) 167 QGIG 100, 101 (Hall P) and cases cited.

[24] Nilsson v Q-Comp (2008) 189 QGIG 523, 526 (Hall P).

[25] See e.g. QANTAS Airways Limited v Q-COMP and Blanch [2009] QIC 20; Cronig v Workers' Compensation Board of Queensland [1997] 156 QGIG 100, 101 (de Jersey P); Carman v Q-COMP (2007) 186 QGIG 512, 513 (Hall P); Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48; (2006) 1 Qd R 519, [27], [41] (Keane JA, with whom de Jersey CJ and Muir J agreed).

[26] Calder v Simon Blackwood (Workers' Compensation Regulator [2014] QIRC 101, [33].

[27] Q-COMP v Green (2008) 198 QGIG 747

[28] Calder v Simon Blackwood (Workers' Compensation Regulator [2014] QIRC 101, [34]. See also Cooper (as the legal representative of the late Leslie Cooper) v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 38.

Close

Editorial Notes

  • Published Case Name:

    Northern Iron and Brass Foundry Pty Ltd v Simon Blackwood

  • Shortened Case Name:

    Northern Iron and Brass Foundry Pty Ltd v Simon Blackwood

  • MNC:

    [2016] QIRC 41

  • Court:

    QIRC

  • Judge(s):

    Neate IC

  • Date:

    08 Apr 2016

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
1 citation
Jump To
Cite 1 - (1940) 64 CLR 538
Avis v WorkCover Queensland (2000) 165 QGIG 788
1 citation
Jump To
Cite 1 - (2000) 165 QGIG 788
Calder v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 101
3 citations
Jump To
Cite 1 - [2014] QIRC 101
Cite 2 - [2014] QIRC 101
Cite 3 - [2014] QIRC 101
Carman v Q-Comp (2007) 186 QGIG 512
1 citation
Jump To
Cite 1 - (2007) 186 QGIG 512
Chattin v WorkCover Queensland (1999) 161 QGIG 531
1 citation
Jump To
Cite 1 - (1999) 161 QGIG 531
Commissioner of Police v David Rea (2008) NSWCA 199
1 citation
Jump To
Cite 1 - (2008) NSWCA 199
Cooper (as the legal representative of the late Leslie Cooper) v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 38
2 citations
Jump To
Cite 1 - [2015] QIRC 38
Cite 2 - [2015] QIRC 38
Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100
1 citation
Jump To
Cite 1 - (1997) 156 QGIG 100
EMI (Australia) Limited v Bes (1970) 44 WCR 114
1 citation
Jump To
Cite 1 - (1970) 44 WCR 114
Fernandez v Tubemakers of Australia (1975) 2 NSWLR 190
1 citation
Jump To
Cite 1 - (1975) 2 NSWLR 190
Holtman v Sampson [1985] 2 Qd R 472
1 citation
Jump To
Cite 1 - [1985] 2 Qd R 472
Joyce v Yeomans [1981] 1 WLR 549
1 citation
Jump To
Cite 1 - [1981] 1 WLR 549
Kavanagh v The Commonwealth (1960) 103 CLR 547
1 citation
Jump To
Cite 1 - (1960) 103 CLR 547
Lackey v WorkCover (2000) 165 QGIG 2
1 citation
Jump To
Cite 1 - (2000) 165 QGIG 2
MacArthur v WorkCover Queensland (2001) 167 QGIG 100
1 citation
Jump To
Cite 1 - (2001) 167 QGIG 100
Monroe Australia Pty Ltd v Campbell (1995) 65 SASR 16
1 citation
Jump To
Cite 1 - (1995) 65 SASR 16
Newberry v Suncorp Metway Insurance Ltd[2006] 1 Qd R 519; [2006] QCA 48
1 citation
Jump To
Cite 1 - [2006] QCA 48
Newman v Workers' Compensation Regulator [2015] ICQ 14
1 citation
Jump To
Cite 1 - [2015] ICQ 14
Nilsson v Q-Comp (2008) 189 QGIG 523
1 citation
Jump To
Cite 1 - (2008) 189 QGIG 523
Q-COMP v Green (2008) 198 QGIG 747
2 citations
Jump To
Cite 1 - (2008) 198 QGIG 747
Cite 2 - (2008) 198 QGIG 747
Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301
1 citation
Jump To
Cite 1 - (2006) 181 QGIG 301
QANTAS Airways Limited v Q-Comp and Michelle Blanch (2009) QIC 20
1 citation
Jump To
Cite 1 - (2009) QIC 20
Ramsay v Watson (1961) 108 CLR 642
1 citation
Jump To
Cite 1 - (1961) 108 CLR 642
Sotiroulis v Kosac (1978) 80 LSJS 112
1 citation
Jump To
Cite 1 - (1978) 80 LSJS 112
State of Queensland v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447
1 citation
Jump To
Cite 1 - (2003) 172 QGIG 1447
WorkCover Queensland v BHP (Qld) Workers' Compensation Unit (2002) QIC 27
1 citation
Jump To
Cite 1 - (2002) QIC 27
WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6
1 citation
Jump To
Cite 1 - (2003) 172 QGIG 6

Cases Citing

Case NameFull CitationFrequency
Kevesther Pty Ltd v Workers' Compensation Regulator [2024] QIRC 1952 citations
Northern Iron and Brass Foundry Pty Ltd v Workers' Compensation Regulator [2016] ICQ 191 citation
1

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