Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2016
  4. Morrison v Workers' Compensation Regulator - [2016] QIRC 65

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Morrison v Workers' Compensation Regulator[2016] QIRC 65

Morrison v Workers' Compensation Regulator[2016] QIRC 65

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Morrison v Workers' Compensation Regulator [2016] QIRC 065

PARTIES:

Morrison, Stephen

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2014/359

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

HEARING DATES:

13 June 2016

27, 30, 31 March and 23 July 2015

18 September 2015 (written submissions of Respondent)

1 October 2015 (written submissions of Appellant)

HEARD AT:

Brisbane (27, 30, 31 March 2015)

Beenleigh (23 July 2015)

MEMBER:

Industrial Commissioner Neate

ORDERS:

  1. The appeal is dismissed.
  1. The decision of the Respondent dated 24 November 2014 and sent by letter dated 28 November 2014 to the Appellant is confirmed.
  1. The Appellant is to pay the Respondent's costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION - back injury and subsequent psychiatric injury - whether the appellant suffered a back injury that arose out of, or in the course of, his employment - whether the injury was the aggravation of an existing degenerative condition - whether employment was a significant contributing factor to the injury - whether the appellant's psychiatric or psychological disorder arose as a consequence of his physical injury - appellant bears onus of proof

CASES:

Workers Compensation and Rehabilitation Act 2003 (Qld) s 32

Avis v WorkCover Queensland (2000) 165 QGIG 788

Commonwealth of Australia v Lyon (1979) 24 ALR 300

Coombes v Q-Comp (2007) 185 QGIG 680

Graham Douglas Stewart v Q-COMP (C/2010/52) - Decision http://www.qirc.qld.gov.au

Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473

Kavanagh v The Commonwealth (1960) 103 CLR 547

Luxton v Q-Comp (2009) 190 QGIG 4

MacArthur v WorkCover Queensland (2001) 167 QGIG 100

Newberry v Suncorp Metway Insurance Limited [2006] 1 Qd R 519

Newman v Blackwood [2015] ICQ 014

Nilsson v Q-Comp (2008) 189 QGIG 523

Qantas Airways Limited v Q-COMP and Blanch (2009) 191 QGIG 115

Q-COMP v Green (2008) 189 QGIG 747

Q-COMP v Hetherington [2004] QIC 47, (2004) 176 QGIG 493

Rossmuller v Q-COMP (C/2009/36) - decision http://www.qirc.qld.gov.au

State of Queensland (Queensland Health) v QComp and Beverley Coyne (2003) 172 QGIG 1447

Theiss Pty Ltd v Q-COMP (C/2010/11) - Decision http://www.qirc.qld.gov.au

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

APPEARANCES:

Mr A. Messina, Counsel for the Appellant, instructed by Shine Lawyers

Mr F. Lippett, Counsel for the Respondent, directly instructed by the Workers' Compensation Regulator

Decision

  1. [1]
    This is an appeal by Stephen Victor Morrison ("the Appellant") to the Queensland Industrial Relations Commission ("the Commission") against the decision of the Workers' Compensation Regulator ("the Respondent") to reject his application for compensation.  The appeal is made under s 550 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act").

Brief history of the claim

  1. [2]
    The Appellant was born in September 1967.  He was employed by WH Heck and Sons Pty Ltd ("the Employer") at the Rocky Point Sugar Mill in Woongoolba (near Beenleigh) as a roustabout from 3 July 2011 until 12 August 2012.  He claims to have suffered a back injury and subsequent psychiatric injury in the course of that employment. 
  1. [3]
    The Appellant lodged a Notice of Claim for Damages dated 20 December 2013 with WorkCover Queensland ("WorkCover").  He claimed compensation for physical injuries suffered because of his work duties over the period of his employment, and claimed that those injuries resulted in the development of a psychiatric injury.  By its decision dated 4 June 2014, WorkCover rejected the Appellant's claim for compensation.
  1. [4]
    The Respondent received an application for review of that decision on 3 September 2014.  By its decision dated 24 November 2014, sent by letter dated 28 November 2014, the Respondent confirmed the decision of WorkCover to reject the Appellant's application for compensation.  It is against that decision that the Appellant currently appeals.
  1. [5]
    The Appellant contends that he suffered a "personal injury" within the meaning of          s 32(1) of the Act.  In particular, he contends that he suffered:
  1. (a)
    physical injury to his lower back over a period of time from 1 July 2011 until 12 August 2012, with his physical symptoms commencing in August or September 2011; or
  1. (b)
    a lower back injury which is an "aggravation" of a physical injury; and
  1. (c)
    a psychiatric injury caused by lower back pain.
  1. [6]
    The Respondent contends that a pre-existing degenerative process in his lumbar spine caused the Appellant's physical injury, and that there is no causal connection between the Appellant's work and the pain he said was occurring in his lower back.  Hence, his psychiatric condition, which was due to the pain in his lower back, cannot be a work related injury.

The legal requirements and onus of proof

  1. [7]
    The appeal has to be decided by reference to s 32(1) of the Act, which at the time material to the Appellant's Notice of Claim for Damages, relevantly provided:

  "(1) An injury is personal injury arising out of, or in the course of, employment               if:

  1. (a)
    for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury; or
  1. (b)
    for a psychiatric or psychological disorder - the employment is the major significant contributing factor to the injury.

  …

  (3) Injury includes the following -

   (a) a disease…;

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

  1. (i)
    a personal injury other than a psychiatric or psychological disorder;

    (ii) a disease;

    (iii) a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation;

   (ba) an aggravation of a psychiatric or psychological disorder, if the aggravation arises out of, or in the course of, employment and the employment is the major significant contributing factor to the aggravation.

  1. (4)
    For subsection (3)(b) and (ba), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation."
  1. [8]
    An injury which arises out of employment occurs where there is a causal connection between the employment and the injury.[1]  Although the words "arising out of" do not require the direct or proximate relationship, which would be necessary if the phrase used was "caused by," there must be some causal or consequential relationship between the worker's employment and the injury.[2]
  1. [9]
    An injury "in the course of employment" means an injury sustained while the worker is engaged in the work that he or she is employed to do or in something which is concomitant of, or reasonably incidental to, the person's employment to do that work.[3]
  1. [10]
    For employment to be a significant contributing factor to the injury, the employment must be important or of consequence,[4] and there should be some linkage between the employment and the injury.[5]
  1. [11]
    As Keane JA (as he then was) stated in Newberry v Suncorp Metway Insurance Limited:[6]

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

…

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

  1. [12]
    The appeal was conducted as a hearing de novo.  In other words, the Commission must decide the matter afresh on the evidence before it.[7]  The Appellant carries the onus of proving on the balance of probabilities that he has an "injury" within the meaning of the Act.[8]
  1. [13]
    Although the onus to be discharged is on the balance of probabilities, the Commission, in dealing with the matter, must feel an actual persuasion before the alleged facts can be found to exist.  The mere possibility of an appellant suffering an injury on mere conjecture is not enough.  Inference must be carefully distinguished from conjecture or speculation.  There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish.[9]
  1. [14]
    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.[10]
  1. [15]
    In a case where expert medical evidence is led, before any such expert medical evidence can be of value, the facts upon which it is founded must be provided by admissible evidence.[11] 

 The nature of, and circumstances surrounding, the Appellant's injuries

  1. [16]
    Background: Work at the Rocky Point Sugar Mill occurs in two distinct phases:
  1. (a)
    the crushing or crush season (when sugar cane is processed at the Mill) which runs from about late August or early September until late November or early December; and
  1. (b)
    the maintenance period from the end of one crushing season until the start of the next crushing season.
  1. [17]
    The Mill is usually closed for about five weeks over the Christmas period and reopens in late January.             
  1. [18]
    During the crushing season, workers work a 40 hour week, with possible overtime of four to six hours on Saturday and Sunday.  During the maintenance period they work a 36 hour week, Monday to Thursday.
  1. [19]
    The nature of work undertaken by some employees will vary depending on whether the Mill is operating during the crushing season or maintenance work is being done.
  1. [20]
    The Appellant's description of the nature of his work: The Appellant commenced work at the Rocky Point Sugar Mill in early July 2011.  He had previously worked as a labourer at the Mossman Central Mill in North Queensland for about five years.  He gave oral evidence that during his time at the Mossman Central Mill he helped clean the pit using a shovel and he experienced "mild" back soreness which he described as "just labourer's back … from general heavy work." 
  1. [21]
    The Appellant was not employed continuously at the Rocky Point Sugar Mill ("the Mill") between 3 July 2011 and August 2012.  He was put off on 18 December 2011 because there was no work for him at that time and was re-employed there about six weeks later, on 29 January 2012.  That was the usual period for the Mill to be shut down after the crushing season.
  1. [22]
    The Appellant finished working at the Mill in August 2012, when his employment was terminated.  He described feeling very exhausted, very tired and in some pain at that time. 
  1. [23]
    The Appellant was employed at the Mill as a roustabout or general labourer.  He gave evidence that his work involved "pretty much anything the boss asked me" including emptying rubbish bins from various locations around the Mill.  He did that two or three times each week, using a forklift to convey a pallet with up to four bins that he loaded onto it.  The bins contained metal shavings, paper, plastic and other general waste.  He described the bins in the metal work area as "heavy" and the bins for other areas as "medium."  He parked the forklift next to a large industrial bin and stood on the pallet to empty six or seven bins into the industrial bin, resting each bin on the side of the industrial bin so they could pivot as he unloaded them. 
  1. [24]
    The Appellant also unloaded trucks with the forklift, did some dogging for the crane, and assisted the tradesmen (e.g. by getting parts and equipment from the store room, and heavy machinery, sometimes using a forklift or wheelbarrow to transport the items, and by lifting or holding things in place for the tradesmen). 
  1. [25]
    His labouring work included concreting nearly every day ("doing it the old way with the mixer").  He shovelled gravel and cement into a mixer, and tipped the mixed concrete into a wheelbarrow, pushed the full wheelbarrow to the construction site, constructed form work with timber, and made foundations or footings for heavy machinery. More often than not, the concreting work was a two man job.
  1. [26]
    The Appellant also performed manual tasks associated with the processing of sugar cane at the Mill.  Sugar cane that has been cut in the paddock is loaded into bins which are transported by trucks to a weighbridge.  The sugar cane is tipped from the trucks into a large steel hopper.  The top of the hopper is a little above ground level and it tapers down to about two metres below ground level, over a concrete walled pit.  A conveyor belt goes into the pit, below the hopper.  The inclined conveyor belt, which is some two to three metres wide and has side walls about 40 or 50 cm high, transports the sugarcane up into a shredder which shreds the cane into a mulch.  During the crush season the conveyor belt normally runs continuously from around 10.00 am each Monday until the following Saturday morning about the same time. 
  1. [27]
    The Appellant, who is about 164 cm tall, worked in the pit during the crush season when the Mill was running.  He entered the pit by way of steps and a concrete ramp.  Dirt and cane billets would spill off the conveyer belt through the gap under the hopper, and dirt would build up under the steel drum wheel at the end.  Water seeped through the walls of the pit and formed mud with the dirt.  The mud is much heavier than dirt.  If dirt or mud built up it would eventually stop the conveyor belt.  The Appellant would shovel the waste through a hole at about shoulder height into a cage around the end of the conveyer belt.  The waste would then travel on the conveyer belt to the Mill. 
  1. [28]
    The Appellant gave evidence that his job was to clear the waste from the pit three to five times each day, for periods between half an hour and one and a half hours (i.e., the bulk of his daily shift from 7.00 am to 3.30 pm).  However, in cross-examination, it was put to him that it was necessary to work in the pit for approximately one hour each day to keep the pit cleaned out.  The Appellant agreed, saying "At least one hour, yes." 
  1. [29]
    The Appellant worked on Saturdays and Sundays to remove the dirt and cane billets that built up during the week while the conveyor belt was running.  He described three ways he did that.
  1. (a)
    Because the conveyor belt was not operating on weekends, he would ask an electrician to turn the belt over a few metres so that he could continue to load debris onto it.  He repeated that process until most of the belt was filled.
  1. (b)
    He would also fill 44 gallon drums that were lowered into and removed from the pit using a crane.  The waste would be shovelled into the drums or he would fill buckets and tip the contents into the drums.
  1. (c)
    "Every now and then", usually during the maintenance season, if he could not put the debris onto the conveyor belt he would fill 20 litre steel buckets and carry them out of the pit, and tip the debris onto the ground for a bobcat to remove.

The Appellant said that he also cleared debris that fell from other parts of the conveyor belt, particularly at the end where there was a gap between the end of the belt and the shredder (some eight to 10 metres above the ground).  He usually did that each morning, to clear what had fallen during the night, and at other times as required.  That debris was also shovelled onto the conveyor belt (at a point near the pit where the conveyor belt was at about chest height) so that the debris would be processed. 

  1. [30]
    The Appellant was not rostered to work seven days each week.  The weekend work was overtime, and it was for him to decide whether he wanted to work on weekends.  He suggested that the work had to be done to keep the Mill running.  However, other people also worked on weekends and assisted him to clean the pit.  The usual period was from 7.00 am until 1.00 pm, although it seems that the period could vary. 
  1. [31]
    The Appellant gave evidence that he would be exhausted because of the work he did on Saturdays and Sundays during the crush period to ensure the dirt did not build up around the conveyor belt.  Sometimes he would call the Mill and say he was having Monday off work.  (On some occasions, he gave the reason that his motor vehicle had broken down.)  That practice became more frequent.
  1. [32]
    After the crush finished and the pit was emptied there was maintenance work to do, including some shovelling of sugar, opening and hosing the mills, scraping excess sugar from the sides of silos, repairing any damage, and re-greasing or replacing parts of equipment. 
  1. [33]
    The Appellant described similar work that he had undertaken over four or five seasons at the Mossman Central Mill in North Queensland as being less physically demanding.  The pit there was easily accessible and did not have water (which, he estimated, increased the weight of debris about three times). 
  1. [34]
    The physical effect of the work on the Appellant: The Appellant described the work in the pit as "really hard", as the mud was "really heavy".  To pick up a shovel load of it was "an effort."  He rated it at least seven on a scale of one to 10 of physically demanding.  Other work around the Mill was "hard work but it was hand-able."  Indeed, working with tradesmen was not "too heavy" on him but was "a lot easier" than the other work.  He rated it about four to five on the scale. 
  1. [35]
    When asked how his body coped with doing the work in the pit, the Appellant stated:

"My body coped pretty hard with it.  It was heavy impact on it for sure.  It didn't cope at all - real well at all." 

  1. [36]
    He said that he experienced pain as a result.

"Had a lot of shoulder pain, back pain definitely and my hips, my arms, all over me body, yeah.  It stressed my whole body doing that heavy shovelling, yeah." 

  1. [37]
    According to the Appellant, when he arrived home after a day of crush work:

"It felt like I'd done a month's worth of work in a day, yeah.  It was pretty - strain on me body, it was, yeah.  I'd be sore all over, yeah.  …  I'd jump straight into a hot shower, which helped a lot, and then I just lay down pretty much, I'd relax.  ….  Just felt too exhausted to get up and do anything, yeah." 

  1. [38]
    When asked whether he was mentally or physically exhausted, the Appellant replied: "more physically.  Mentally, yeah.  But, yeah, more physically exhaustion."  He would take Nurofen Plus for pain relief.  After a shower he used a rice pack or hot water bottle while lying down.  The Appellant said that the following day he would still feel like he had not recuperated and would be sore and exhausted.  The Appellant did not seek any other treatment for his pain, but "persevered a lot." 
  1. [39]
    According to the Appellant, he was experiencing "mild, very mild" lower back pain when he started working at the Mill in July 2011.  He did maintenance work until the crush started a couple of months later, and his back "started getting a little bit worse" a month into the crush.  He experienced "more pain" halfway through the crush period and by the end of the crush (about late November/early December 2011) "it was giving me a lot of grief."  His back continued to give him "a lot of grief" over the period from the end of the crush until August 2012, even though the work that he was doing was easier.  He attributed that pain to the shovelling he was doing in the pit.  He thought the pain was muscular and did not think he was doing permanent damage to his back. 
  1. [40]
    The Appellant gave oral evidence that he was not happy doing the shovelling work and told that to others at the Mill.  On one occasion when he was working with his manager (Terry Drury) he told him he had to go home early because of his back.  Indeed, he said that he "complained a lot" that the work was "too heavy" and that he needed someone down there all the time to help him do the work.  Most of his complaints were made, sometimes quite angrily, to whoever was nearby when he came out of the pit.  Although tradesmen or others would help him for relatively short periods, it was not easy to find people to assist him because "everyone knew what type of job it was, and that it was hard yakka - hard work."  However, the Appellant also said that he continued to do overtime work shovelling debris from the pit. 
  1. [41]
    The Appellant's only immediate family were his two sisters (Di Anne Morrison and Kerri Leigh Upton) with whom, he said, he is "pretty close."  He said that he normally kept in contact with them at least a couple of times each week and would complain to them about what his work was doing to him.  He told them that he could not keep it up, and could not do it any more as it was "too much" and he needed to find something else that he could do.  Apparently they reminded him that he had bills to pay and that he should stick with his job.  He continued to work through it because he needed the work and there was not much other work available. 
  1. [42]
    There appears to be no documentary record of any lower back injury or pain during the Appellant's period of employment at the Mill.  The Appellant agreed that he was issued with a Take 5 booklet and was given an induction in relation to Take 5, and that the booklet recommends that workers assess the tasks they are doing and note and/or report any tasks that are unsafe or which cause some physical pain.  From his evidence, it appears that the Appellant did not complete an incident report or record anything about his lower back pain.  He gave oral evidence that he did not report his sore back to his supervisor, Mr Bressow.  As noted earlier, the Appellant said that he mentioned his sore back to his manager, Mr Drury, one day when they worked together.  However, although the Appellant said he thought that was caused by the heavy lifting and shovelling he was doing, he did not complete an incident report.
  1. [43]
    By contrast, the Appellant acknowledged in cross-examination other incidents at work that were apparently reported and in respect of which he was given medical treatment before he returned to work, namely having foreign objects in his eye on                                  28 November 2011 and 31 January 2012, and hitting his knee on a piece of protruding angle iron on 10 April 2012.  He also volunteered that a later incident (when he had concrete powder in his eyes) occurred a few weeks before his employment was terminated in August 2012.
  1. [44]
    The Appellant gave evidence that he had not worked since then because of his back.
  1. [45]
    The psychological effect of the work on the Appellant: The Appellant gave evidence that when he started working at the Mill in July 2011 he did maintenance work until the crush started.  His mood was "pretty much normal" and his lower back pain at that stage was "very, very mild."  By the end of the crush, when his lower back was giving him "a lot of grief," his mood was affected.  He was grumpy and did not feel like doing a lot at home.  He did not feel comfortable.  From the end of the crush period onwards his lower back continued to give him "a lot of grief."  His mood got progressively worse until it was "pretty bad." 
  1. [46]
    According to the Appellant, as 2012 progressed he was still experiencing lower back pain but it was not so bad.  Between October 2012 and February 2013 his lower back pain got progressively worse.  Living with this pain made him "very irritable, … short-tempered, grumpy all the time.  Didn't feel like doing much at all.  Yeah, very uncomfortable. …  My mood wasn't real good. …  I couldn't tolerate things a real lot." 
  1. [47]
    On 25 June 2013, the Appellant saw his general practitioner, Dr Lau, and mentioned that he was feeling depressed because his back was hurting.  The Appellant said that he was "laying around all the time.  I didn't have time for anything much, you know.  Yeah, I wasn't feeling real good at all."  Dr Lau prescribed Endep, an antidepressant medication.  (Exhibit 1 document 6)

 Other evidence about the Appellant's work and its effect on him

  1. [48]
    Mr Drury: Terrence Drury has worked at the Mill as the maintenance supervisor since March 2008.  He worked there previously as a contractor.  About 14 permanent staff  are employed at the Mill, but during the harvesting season the number can increase to about 25 employees, including casual employees.  Mr Drury knows the Appellant  through employment at the Mill and was involved in arranging his employment as a general labourer.  In addition to his oral evidence, Mr Drury's written statement dated 18 February 2014 was in evidence (Exhibit 3).
  1. [49]
    Mr Drury was the Appellant's immediate supervisor.  He described the Appellant's work as involving cleaning (including cleaning out the transport carrier pit, and hosing down and cleaning of carriers), driving a forklift, being a tradesmen's assistant (including getting tools and equipment for tradesmen) and doing some concreting tasks. 
  1. [50]
    According to Mr Drury, the crushing season runs from the end of August until late November or early December, depending on the size of the crop.  He confirmed that the Appellant volunteered to work overtime on weekends during the crushing period, usually for four to six hours on each day. 
  1. [51]
    Mr Drury described how the fibre, dirt and other debris falls from between the slats on the transport carrier into the pit.  A stairway provides access into the pit area, the floor of which would be about 4 metres below ground level.  It is about 3 metres wide at the bottom, but the common work area varies in width from 1.9 to 2.1 metres.  (Exhibit 3)  The pit would be cleaned completely about twice each season.  Usually it was maintained in a state so that it could function.
  1. [52]
    Mr Drury had experience working in the pit under the transport carrier, having worked there most weekends either supervising or shovelling.  The debris in the pit included mainly cane billets and cane leaves, with some dirt.  He described the work as involving the use of a pitchfork or shovel to transfer the debris onto a conveyor belt at waist or chest height. Otherwise the debris would be piled up for later clearing on the weekend using the 200 litre containers (like 44 gallon drums) that would be lifted out by a crane.  People would take turns to fill the containers using pitchforks. He characterised it as frustrating work in a dirty, smelly, damp environment.  Mr Drury described it as a medium duty task, but not heavy work because it is not easy to get debris onto a pitchfork and a pitchfork cannot hold a lot of weight.
  1. [53]
    He confirmed that another employee named Eve worked there during the crushing season, and worked with the Appellant in the transport carrier pit on some weekends. According to Mr Drury, the Appellant and Eve (who he described as of average height and slight build) would always have had someone else working with them.  On weekends there would be a minimum of four people cleaning the transport carrier.  Normally there would be three people in the pit taking turns to fork material into a drum, one person above them putting the 200 litre container in the back of the truck, and another person operating the crane.  All four or five people would need to be there all the time to perform that function.  In a four to six hour period, about 15 full containers would be removed from the pit and transported away by truck. 
  1. [54]
    According to his written statement and oral evidence, during the harvesting season:
  1. (a)
    the Appellant was asked to check the pit each day during the week with the Cushman, and it was expected to take about one hour of work each day to keep the area of the carrier pit serviceable, but mostly that did not happen;
  1. (b)
    the Appellant would go down into the pit twice each week;
  1. (c)
    the workers were instructed verbally that when they were required to go into the pits to perform cleaning tasks there should always be at least two workers, and generally they had a radio to be able to communicate with the console;
  1. (d)
    most of the shovelling actions would not be higher than chest height;
  1. (e)
    the task of cleaning the pits is not repetitive or continual, but is shared by other workers, and at times there are two or three workers in the pits;
  1. (f)
    on a weekend a cleaning team of about four or more people would completely clean the area (and the Appellant was usually a member of the cleaning team), and workers would take turns with one or two workers shovelling at a time, depending on the position or location of the drum;
  1. (g)
    all workers complained about the task due to the dirty nature of the work, but they volunteered to work overtime on weekends to perform the task;
  1. (h)
    at times the area would not be cleaned for several days;
  1. (i)
    the cleaning of the pits would have only taken about 10 per cent of the Appellant's time, that is, four hours of his 40 hour week.
  1. [55]
    Apart from those times when Mr Drury was inspecting the area or was himself in the pit assisting in the removal of debris, he monitored the times people were in the pit by way of radio contact.  His evidence was that, even though he might not be standing there supervising, he knew when the Appellant was in the pit "because I have a radio on the whole time that I'm at work, and I know where everyone is that's on a radio."  He explained that cleaners, the Cushman and other personnel let their operator know where they are going.  They will call up to advise that they are going down to the pit.  "And so we hear every one of those conversations and we're all over that all the time.  As a supervisor, you know where everybody is all the time and say that's standard procedure." 
  1. [56]
    In his written statement, Mr Drury referred to the booklet called Take 5 which the employer introduced in February 2012.  He described the booklet as one that enables a worker to assess, calculate and monitor the safe work methods for each individual job that the worker undertakes.  Peter Bressow instructed the worker on the use of this booklet.  Mr Drury was aware that workers were required to sign for the books after the training.  That procedure was not in place during the first period of the Appellant's employment.  (Paragraph 74)
  1. [57]
    The following elements of his oral testimony were at variance with or, if accepted, significantly qualify the Appellant's evidence:
  1. (a)
    ideally the pit would be cleaned each day, but it is done sporadically as it can do many days without being cleaned;
  1. (b)
    ideally the Appellant and the Cushman would check the pit every day for an hour or so and if the debris was not affecting the function of the plant there was no need to clear it - in other words, it needed to be kept sufficiently clean to enable the conveyer belt to function;
  1. (c)
    the Appellant would not enter and work in the pit alone, but would go down twice each week with the Cushman to clean the pit;
  1. (d)
    no-one was requested to work in the pit between two and five times each day, and it was never cleaned three times in one day;
  1. (e)
    on weekends there were at least four or five people working in or above the pit (including a crane operator and a person directing the crane operator to transport the drums into and out of the pit), and people working in the pit would be rotated so that they were not constantly loading debris into the drums;
  1. (f)
    although the Appellant's work included cleaning the pit, most of his work was as a roustabout and everything else took priority over pit work;
  1. (g)
    the Appellant would have spent a couple of hours during the week in the pit, and was not there multiple times each day;
  1. (h)
    although the Appellant might have complained about working at the transport carrier pit (as apparently everybody who works in the dirty, smelly and damp conditions there does), Mr Drury did not recall the Appellant speaking to him about any task causing him injury or pain.
  1. [58]
    In relation to point (h), Mr Drury's oral evidence and written statement included statements that:
  1. (a)
    the Appellant never complained to him that he had sustained any injury or soreness when he was cleaning the pits; (paragraph 54)
  1. (b)
    the Appellant never complained to him that the work of handling lengths of steel was too heavy and that he was struggling to perform his work as a tradesmen's assistant; (paragraph 62)
  1. (c)
    the Appellant never complained to him that he sustained any injury or soreness when working on the repair of the cane bins; (paragraph 63)
  1. (d)
    the Appellant did not complain to him about the working conditions when he was laying the foundations and did not complain or mention that he sustained an injury or soreness when he was undertaking other concreting tasks; (paragraph 70)
  1. (e)
    the Appellant never mentioned to him that he was experiencing any medical condition with his back, shoulders or hips.  (Paragraph 71)
  1. [59]
    Mr Drury also said that if anyone complained about soreness or injury from such things as a strained or pulled muscle, an incident report would be completed.  Many reports were made for the Appellant in relation to his eyes or knee, but not his back.  He could not recall being present while the Appellant experienced a sore lower back, asking the Appellant about a sore lower back, or having a conversation with the Appellant about soreness or injury that alerted him to a problem.  But he could not say that the Appellant would not have said something like that to him at any stage.  In his words "I don't recall him complaining of soreness or pain due to doing that work. … It is possible that he could have complained to me, yeah.  Anything's possible.  …  But it doesn't mean that he has." 
  1. [60]
    Mr Drury reiterated, however that where someone has strained themselves or done some damage that needs to be reported there would be an incident report.  He distinguished that sort of soreness from muscle tiredness and soreness which might arise from exercise or a repetitive job and which would not be reported.  Mr Drury said that he would have remembered if the Appellant had frequently complained to him about the nature of his work and having a sore back because of his work in the pit. 
  1. [61]
    Mr Drury was responsible for the termination of the Appellant's employment in August 2012.  He was adamant that the Appellant's back condition did not contribute to the termination of his employment.  He said that quite a few people at work have ongoing back problems but their employment is not terminated because of an injury. 
  1. [62]
    Mr Drury said that the Appellant's physical performance of his work was fine and had not diminished.  Rather, the termination of the Appellant's employment came about as a consequence of a series of events.  In summary:
  1. (a)
    despite multiple conversations (and verbal warnings) about this matter, the Appellant failed to conform to safety requirements, particularly wearing protective glasses, and there were consequential incidents when he had particles such as cement in his eyes and was taken to hospital; and
  1. (b)
    the Appellant was increasingly unreliable in arriving at work:

(i)during the crush season (when overtime was available), where he did not arrive on Mondays after working the weekend on overtime (and sometimes other days) and gave various excuses (e.g., that his car had a flat battery or flat tyre, or he did not have credit on his phone, but not soreness); and

(ii)during the maintenance period he failed to inform his supervisor that he would not be at work, so that his work ethic became inconsistent and unreliable.

  1. [63]
    Mr Bressow: Peter Bressow has worked at the Mill since 1972, for the past four years as a process supervisor. He remembered the Appellant working there as a cleaner and fork lift operator, and doing concreting jobs allocated by Mr Drury. 
  1. [64]
    Mr Bressow described how standard cement bags were carried individually from the Sugar Room, the cement was mixed with sand in a standard size mixer at the Mill, and the concrete was tipped into a wheelbarrow and taken to the location (about 20 to 50 metres away) where it was poured and screed off.  The Appellant made up the boxing or timber frame for the concrete.  Small jobs involving up to three loads of concrete were undertaken by one person and larger jobs by two people.
  1. [65]
    The Take 5 system was used to provide a safe working environment.  Employees were instructed in relation to Take 5.  They refer to the Take 5 book and answer series of questions to assess hazards, determine whether they needed assistance and provide a risk matrix.  It takes about five minutes to answer the questions.  When the risk score was below 5 the task could be undertaken.  Otherwise an employee had to see a supervisor about whether the work could be done.
  1. [66]
    Mr Bressow has a first aid certificate and is the first aid officer at the Mill.  Under the process for reporting injuries, any injury however small should be reported to a supervisor for future reference.  However reporting was not necessary for pain.  He recalled the Appellant suffering injuries to his eyes from concrete particles because the Appellant failed to wear safety glasses. The Appellant did not complain to him about other injuries.  In particular, the Appellant did not complain to him about a back injury, or even how hard the work was.
  1. [67]
    When the Appellant's employment was terminated by Mr Drury, Mr Bressow was present as a witness.  He understood that the Appellant's employment ended because the Appellant was tardy in turning up to work, did not call in to say why he would not be at work, and was not performing some of his duties or was taking too long to do some of them.  He recalled that the Appellant accepted those reasons on the day of his termination, when he had come to work late.  His employment was not terminated because he complained that the work was too hard or his back was too sore.
  1. [68]
    Mr Hinshelwood: Thomas Hinshelwood, who is employed at the Mill in the maintenance season as a rigger, trades assistant operator gave evidence about the Appellant's role as a roustabout at the Mill.  He described two of the pits.
  1. (a)
    The shredder pit has close walls and is accessed by way of a narrow ladder. It would be difficult to shovel anything onto a conveyor belt.  Debris would be removed by buckets. 
  1. (b)
    The transport carrier pit is much larger, longer and deeper. Cane is taken on a belt to the shredder.

He did not know in which pit the Appellant worked. 

  1. [69]
    Mr Hinshelwood said that concreting work was usually done by two people, and sometimes more.  He recalled doing concreting with the Appellant for about three or four weeks and described him as a "very hard worker … one of the hardest workers there."  They mixed some concrete on site (using standard size bags of cement which they carried from the storage room, with sand and gravel), and other concrete was delivered pre-made.  The opening of the concrete mixer was about chest height.  One mix of concrete would half fill a barrow, but sometimes more than one mix would be poured into a barrow.  Concreting work was undertaken at various places at the Mill.  The maximum distance that a barrow was likely to be pushed was 20 metres. 
  1. [70]
    Mr Hinshelwood works the clarifiers and mill and mud filtration during the crushing season.  He did not know what the Appellant did during that season, and in particular did not see him working in the pit.  He remembered the Appellant telling him once, during the maintenance period after the crush while they were concreting, that he was "buggered" or worn out.  However, the Appellant did not complain "about a sore back or anything like that." 
  1. [71]
    Mr Mead:  Jason Mead is the maintenance fitter and shift supervisor at the Mill, where he has worked for five years.  He knew and worked with the Appellant, and described the Appellant's work as a day cleaner or roustabout as involving unloading trucks, and general cleaning around the Mill.
  1. [72]
    He described the transport carrier as a slat conveyor at the start of the milling train. The trucks tip cane into a big hopper above the conveyor.  Fillets of cane and dirt and leaf matter fall through or off the conveyor to the ground below.  The dirt is usually wet, and the mud and leaf matter stick together.  The debris has to be manually dug out.  There is sufficient room to collect the debris using a pitchfork and deposit it on the conveyer, about 1.2 metres above the floor of the pit.  There was plenty of room for several people to work there at the same time.  Others would come in on weekends to clean the pit, and the Appellant would work with a couple of other people.                 Mr Mead would help the Appellant to clean the pit when he had time, a few times each week.
  1. [73]
    His evidence in relation to the work involved in cleaning up the pit was that it was cleaned out approximately three times every day, for about one to one and a half (or possibly up to two) hours.  A pitchfork was used, and the wet leaf matter and dirt stuck together.  On Sundays during the crush period (when the conveyor belt was not operating), 44 gallon drums would be lowered into the pit and, after they were filled, they would be removed by a crane.  Alternatively, or in addition, the conveyor belt would be moved along a little so that small amounts of debris could be loaded onto it.  A Cushman was on each shift, but they rarely went into the pit except on weekends. 
  1. [74]
    Mr Mead said that no one wanted to go down into the pit.  The work was not heavy, but the pit was not a good environment. The Appellant used to complain about doing the job, but not about his back or weight of the debris.  The only injury suffered by the Appellant of which Mr Mead was aware was when the Appellant "whacked his knee on a piece of steel".
  1. [75]
    Ms Morrison and Ms Upton: The Appellant's elder sisters, Di Anne Morrison and Kerri Leigh Upton, gave evidence about the close relationship between the siblings, the frequency with which they speak with each other, and their observations of the Appellant's demeanour and condition in recent years.
  1. [76]
    According to Ms Morrison, when the Appellant was working in Mossman they would speak with each other at least once a week.  Her assessment was that he enjoyed his time there and, although he is "a very quiet man" and "not a very social person", the Appellant had a couple of friends with whom he socialised.  Ms Morrison recalled that while the Appellant was working in Mossman he mentioned to her that he experienced symptoms of depression caused by homesickness and loneliness, being away from his sisters.  She was unaware of any other reason for his symptoms.  She also noted that the Appellant was working, saving money and "it was healthy for him being up there." 
  1. [77]
    After the Appellant returned to Brisbane he commenced work at the Mill.   According to Ms Morrison, he liked his job and was a hard worker.  He never complained, but just wanted to go to work, do his job, and come home.  He would be tired after a hard day's work but "all the trouble" started toward the end of his time there when he had to dig the dirt and other debris that had fallen off the conveyer belt into a ditch.  The Appellant was staying with Ms Morrison at that time because he was so lonely (although apparently based at a nearby caravan park), and he used to "whinge and … carry on that his back was so sore."  He would be up at night, having hot showers and taking Panadol.  However, he continued working as the digging was "just part of the job" and his condition "just progressively got worse, because the work was heavier for him." 
  1. [78]
    According to Ms Morrison, the Appellant did not get anyone to help him do the digging.  Indeed her evidence was that two people could not fit into the space so only one person at a time could do the work.  She said that, at the time, they thought the aching that he experienced was muscular.  She urged him to take it easy and not work so hard.  If the Appellant rested on weekends he was "alright" and he could not wait until Friday so that he could have a couple of days rest before returning to work. 
  1. [79]
    Ms Upton recalled the Appellant complaining of always being tired when the crush was on, and in telling her about his work digging out a pit.  According to Ms Upton, the Appellant "hated it but he had to do it.  It was a job."  However when he was doing that type of work she noticed that he was "much more fatigued" and "always was complaining."  She recalled him saying that his lower back was hurting about the time he started doing the shovelling in the pit and that the pain was getting worse.  Although his whole body would ache from the work he was doing, Ms Upton said that "the thing that was giving him the most grief was his back."  She did not recall him complaining about any other part of his spine.  He had not stopped complaining since then, including after he left the Mill, but not about pain anywhere other than his lower back. 
  1. [80]
    When the Appellant was working in Mossman, Ms Upton used to talk to him two or three times each week.  In her opinion, he returned to Brisbane because he was missing the family and "there's only just the three of us."  Ms Upton said that she convinced him to stay in Mossman because he was working, had money and some friends, and "it's a nice laid-back lifestyle."  She thought that there was no work for him in Brisbane.  However eventually "he just had enough" and "he wanted to come home." 
  1. [81]
    Ms Upton said that although the Appellant was not happy when working at the Mill, he was happy to be working.  Since ceasing employment, he has become "a little bit depressed" because he cannot stand or sit for too long and there seem to be no prospects of employment. 

 An overview of the medical evidence

  1. [82]
    Medical experts gave oral and written evidence in relation to the nature and cause of the Appellant's physical and psychiatric injuries, and when he reported symptoms in relation to his lower back to doctors.
  1. [83]
    The Appellant consulted two general practitioners, Dr Sonny Feng and Dr Edward Lau, months after he had ceased working at the Mill.  Neither doctor was called to give oral evidence, but their medical records including notes of consultations with the Appellant are in evidence (Exhibit 1 document 6).
  1. [84]
    The doctors who gave evidence were:
  1. (a)
    Dr Scott Campbell, a neurosurgeon, who prepared reports dated                      10 October 2013 and 25 April 2014 (Exhibit 1 documents 3, 4);
  1. (b)
    Dr Malcolm Foxcroft, a psychiatrist, who prepared a report dated                        6 March 2015 (Exhibit 1 document 5); and
  1. (c)
    Associate Professor Richard Williams, a consultant orthopaedic surgeon, who prepared a report dated 26 March 2014 (Exhibit 1 document 7)
  1. [85]
    It is appropriate to consider the medical evidence in relation to the Appellant's alleged physical injury before considering the medical evidence in relation to his alleged psychiatric injury.

 Medical evidence - physical injury

  1. [86]
    Dr Feng and Dr Lau:  The Appellant consulted Dr Feng on 22 October 2012 in relation to his pain.  He recalled telling the doctor that he was having neck pains.  Although the Appellant said that he was experiencing lower back pains at that time, he did not think he told Dr Feng about those pains because "the neck pain was what stood out at the time."  In other words, he was experiencing more neck pain than lower back pain.  The Appellant said in relation to the lower back pain that "I knew it was from work", and just thought it was "muscular, labourer's back" being a "mild sore back."  At that time he did not think that he had injured himself and "didn't think it was as bad as what it was."  Dr Feng prescribed OxyContin at that consultation and continued to do so subsequently for the pain.  The Appellant said that the medication "took the pain away" and made him feel "more at ease, comfortable with the pain.  It relieved it a lot."  However the pain did not go away completely, and he continued to experience it in the lower back and neck - "up and down my spine basically." 
  1. [87]
    Dr Feng's consultation notes for 22 October 2012 include:

"moving house a few days ago, sore neck again with pins and needles to left finger tips.  hx.  of C6-7 disc crush fracture from work injury, had surgery done a few years ago.

has been well until now,"

  1. [88]
    The following actions were recorded:

"Diagnostic Imaging requested: CT - Spine - hx.  of crush Fracture C6-7, had surgery done a few years ago,

pain again with pins and needles to left finger tips

Prescription added: OXYCONTIN CR TABLET 20mg 1 b.d." (Exhibit 1 document 6)

In cross-examination, the Appellant agreed that the symptoms (at least of pins and needles) came on after he had moved house a few days earlier.  However he stated that he had neck and back pain before then. 

  1. [89]
    The CT scan was performed in relation to his cervical spine on 25 October 2012.  The report on the scan included a brief history of crush fracture at C6-7, surgery "a few years ago" and reference to "Pain again with pins and needles to left fingertips."  The report referred to evidence of previous surgery at C6-7 and continued:

"Vertebral body alignment is normal with no spondylolisthesis

There is spondylosis at C4/5 and C5/6, with endplate osteophytic lipping.

The facet joints are unremarkable.

No local bone lesion is noted.

No disc herniation is evident.

There is minimal central canal stenosis at C4/5 and C5/6 due to end plate osteophytic lipping.

There is moderate foraminal stenosis at both sides of C5/6 also." (Exhibit 1 document 6)

  1. [90]
    The Appellant saw Dr Feng again on 26 October 2012.  The consultation notes refer to the CT report and record:

"no need for considering surgical r.v yet

for analgesic,

need oxycontin 40mg to get pain reliefe (sic)

discussed additive (sic) effect, not for long term."

The reason for contact is listed as "Disc prolapse."

  1. [91]
    The Appellant consulted Dr Feng again on 1 November 2012 in relation to his disc prolapse.  Dr Feng reported that the Appellant was "much better" with OxyContin.  For the first time after a few months, the Appellant was having good sleep and not troubled by the pain.  However, the Appellant experienced pain if he was not taking OxyContin.  The level of medication was cut to 20 mg and Dr Feng noted "may need to be on it for long term."  Dr Feng also noted "not seeing any doctor for a long time since the surgery.  Not on narcotic since the surgery."  In cross-examination, the Appellant confirmed that he told Dr Feng that the OxyContin relieved the pain in his neck, and that there was no mention of back pain in the doctor's notes. 
  1. [92]
    The Centre Link Medical Certificate issued by Dr Feng on 1 November 2012 recorded his diagnosis of a disc prolapse C-spine with the date of onset being Wednesday,            3 October 2012.  The symptoms were pins and needles to fingers, and the symptoms were "likely to show considerable improvement within 2 years."  The treatment was medication (Exhibit 1 document 10).
  1. [93]
    On 19 November 2012, the Appellant saw Dr Feng.  He confirmed that he told the doctor that his pain was under control with OxyContin and that they discussed changing his job to something non-physical.  He agreed there was no reference to lower back pain in the doctor's notes.  The Appellant saw Dr Feng on                                  30 November 2012 for a repeat prescription of OxyContin.
  1. [94]
    The Centre Link Medical Certificate issued by Dr Feng on 19 November 2012 again recorded his diagnosis of a disc prolapse C-spine with date of onset being Wednesday, 3 October 2012 (Exhibit 1 document 11). 
  1. [95]
    The Appellant consulted Dr Lau on 14 December 2012 in relation to "chronic neck pain" and obtained more OxyContin.  They discussed dependence issues in relation to OxyContin.  Dr Lau's consultation notes refer to "underlying" disc pathology.  The Appellant agreed that he did not advise a Dr Lau that his lower back pain was building up. 
  1. [96]
    The Appellant consulted Dr Lau again on 26 December 2012 seeking a refill of medication (OxyContin) in relation to "chronic pain with cervical disc pathology," and "ongoing pain".  On 7 January 2013 he saw Dr Lau about an unrelated injury from a recent fall and the consultation notes record "cervical spines: ok." 
  1. [97]
    On 18 January 2013, the Appellant consulted Dr Lau in relation to "chronic neck pain."  The Appellant came for more OxyContin and they discussed dependence issues and pain management, with Dr Lau suggesting reducing OxyContin and using Panadol Osteo.  Dr Lau's consultation notes refer to "underlying OA changes and foraminal stenosis."
  1. [98]
    Somewhat curiously given his consultation notes, the Centre Link Medical Certificate issued by Dr Lau on 29 January 2013 recorded his diagnosis of chronic low back pain.  No date of onset, prognosis or type of treatment was recorded (Exhibit 1 document 12). 
  1. [99]
    The Appellant consulted Dr Lau again on 29 January 2013 in relation to "chronic neck pain", "ongoing problems" and came for a refill of medication, and was given a prescription for OxyContin.
  1. [100]
    On 9 February 2013, the Appellant consulted Dr Feng about a referral to a pain clinic as suggested by Centrelink.             
  1. [101]
    The Appellant consulted Dr Feng again on 16 February 2013.  The Appellant's oral evidence was that, by that stage, his lower back pain was "roughly the same" as his neck pain.  He continued to take OxyContin.  Dr Feng's notes are brief.  They described the reason for contact as disc prolapse, and referred to "worse" pain and "has to double the oxycontin."  Dr Feng also recorded for the first time "sore lower back as well with radiation to both legs" and requested a CT scan of the lumbar spine.  He ceased prescribing OxyContin and prescribed Norspan patch.
  1. [102]
    The Centre Link Medical Certificate issued by Dr Feng on 16 February 2013 recorded his diagnosis of "chronic neck and low back pain."  The date of onset was recorded as Thursday, 16 February 2012 and the symptoms were listed as "disabling pain."  Although the condition was described as "temporary," the recorded prognosis was that the symptoms were "likely to persist."  The certificate stated that the Appellant would be unfit for work from 16 February until 15 May 2013 inclusive.  The advice for his possible return to work was "light duty with no lifting, no repeat turning of head, frequent break if required."  The treatment was analgesic (Exhibit 1 document 13). 
  1. [103]
    On 20 February 2013, the Appellant returned to Dr Feng who noted that the Appellant's condition "may be long term" and that he needs to start thinking about his future work and "may not be able to go back to furniture removal job."  Dr Feng noted that the Norspan was not helping at all, and consequently he ceased prescribing it.  He added a prescription for OxyContin on the basis that the Appellant promised to stay on a 20 mg dosage.
  1. [104]
    The Centre Link Medical Certificate issued by Dr Feng on 20 February 2013 was in almost identical terms to the certificate dated 16 February 2013 (Exhibit 1 document 14).
  1. [105]
    The findings of a CT scan of the Appellant's lumbar spine on 20 February 2013 included that the L4/5 disc showed a right lateral disc protrusion with a marked annular protrusion elsewhere.  The summary stated "Significant severe protrusion at L4/5 with bilateral nerve root compromise and mild spinal stenosis at this level.  Marked facet joint degenerative changes at this level"  (Exhibit 1 document 6).
  1. [106]
    The Appellant consulted Dr Lau on 23 February 2013.  Dr Lau reviewed the CT scan and noted that it showed "severe L4/5 disc protrusion with nerve root compromise."  Apparently the Appellant was in pain and had restricted movements.  The prescription of OxyContin was increased to 30 mg, and the Appellant was referred to Logan Hospital.
  1. [107]
    At the consultation on 6 March 2013, Dr Lau noted that the OxyContin was "just enough to control" the Appellant's pain and that the Appellant "may need surgery." 
  1. [108]
    At the consultation on 16 March 2013, Dr Lau noted "chronic low back pain" and referred to the "underlying L4/5 nerve root irritation."  He prescribed different medication (Lyrica) and noted the aim of gradually reducing the OxyContin.
  1. [109]
    On 28 March 2013, Dr Lau referred to "chronic low back pain with disc protrusion and nerve root impingement."  He doubled the dosage of the Lyrica medication and continued OxyContin. 
  1. [110]
    At consultations about chronic lower back pain on 9 April 2013 and 3 and                              17 May 2013, Dr Lau noted some side-effects from the Lyrica medication, reduced the OxyContin and added Panadol.
  1. [111]
    At the consultation on 3 May 2013, Dr Lau arranged for x-rays to be done and recorded in his consultation notes "chronic low back pain with disc bulges."
  1. [112]
    The Centre Link Medical Certificate issued by Dr Lau on 17 May 2013 recorded his diagnosis of "chronic low back pain."  No date of onset was listed and the condition was described as "permanent."  The Appellant was certified as unfit for work for the period from 16 May until 31 July 2013 inclusive.  No treatment was identified in (Exhibit 1 document 15). 
  1. [113]
    The Appellant consulted Dr Lau on 29 May 2013 and 4, 12 and 19 June 2013.  On the last occasion, Dr Lau noted chronic neck pain as well as chronic lower back pain. 
  1. [114]
    On 4 June 2013, Dr Lau created a letter of referral to a pain management specialist, in which he described the Appellant as having "chronic low back pain with disc bulges."
  1. [115]
    On 25 June 2013 Dr Lau noted that the Appellant had seen a pain specialist and that he had a referral to see a neurosurgeon.  As noted earlier, Dr Lau prescribed Endep, an anti-depressant.  The Appellant gave evidence that he had complained to Dr Lau that he was feeling depressed because his back was hurting, he was "laying around all the time," did not have time for anything much and "wasn't feeling real good at all".
  1. [116]
    The following Medical Certificates were also in evidence:
  1. (a)
    a certificate issued by Dr Lau dated 9 August 2013 which diagnosed the Appellant's condition as "chronic low back pain with disc prolapse," a condition which was described as "permanent," and stated that the Appellant was unfit for work from 1 August until 31 October 2013 (Exhibit 1 document 16);
  1. (b)
    a certificate issued by Dr Vinod Melethil dated 24 October 2013 which described the condition of chronic low back pain with disc prolapse as "long standing" with the date of onset being 24 October 2013, and stated that the Appellant was unfit for work from 24 October until 24 December 2013 (Exhibit 1 document 17);
  1. (c)
    a certificate issued by Dr Ronald Maligat dated 2 January 2014 which, in addition to the long-standing chronic low back pain with disc prolapse, recorded a diagnosis of depression as a secondary or related condition.  The certificate states that the onset of depression was 2 January 2014 but recorded that the condition was "On and off since 5 years ago" and previous treatment was the use of  Zoloft (Exhibit 1 document 18);
  1. (d)
    a certificate issued by Dr Reihaneh Alihassani dated 28 February 2014 in similar terms to the certificate dated 2 January 2014 (although the date of onset of the low back pain is listed as 24 September 2013) with the depression being described as "long-lasting" (Exhibit 1 document 19);
  1. (e)
    a certificate issued by Dr Alihassani dated 16 May 2014 which describes the unspecified primary low back condition as "Temporary exacerbation of a permanent condition" (Exhibit 1 document 20);
  1. (f)
    a certificate issued by Dr Aamir Siddiqui dated 25 June 2014 which described the back pain condition as "permanent" (Exhibit 1 document 21).
  1. [117]
    Dr Campbell:  Dr Campbell examined the Appellant on 10 October 2013 and diagnosed him as suffering from L4/5 disc protrusion that was a "work related" injury that occurred over a period of time from July 2011 through to August 2012.  He confirmed in his oral evidence that the disc protrusion was a consequence of the Appellant's work.  It is relevant, however, to note the following passage from                Dr Campbell's written report:

"Mr Stephen Morrison developed onset of intermittent lower back pain from 2009 whilst performing manual handling tasks at work.  The symptoms were minor and intermittent.  From July 2011 through to August 2012 Mr Morrison worked as a sugar mill labourer and whilst performing manual handling tasks during that period noted onset of severe lower back with associated bilateral sciatica.  He aggravated the lower back injury in a road traffic accident on                  16 July 2013.  The subsequent radiology demonstrated a L4/5 disc protrusion.  His symptoms persisted despite treatment with rest, Panadol Osteo, Oxycontin, methadone, Mobic, Endone and Lyricia and became chronic in nature."  (Exhibit 1 document 3, page 4)

  1. [118]
    Dr Campbell's report referred to the CT scan of the lumbar spine dated 20 February 2013 and, having had a chance to review the radiology, he agreed with the reported findings of a "small, but significant central and right L4/5 disc protrusion."  In his oral evidence, Dr Campbell volunteered that the disc protrusion was small and he contemplated calling it "just a soft tissue injury because the protrusion was so small."  It was, he said, "one of those grey areas where you can go one way or another, and I bumped him up to a disc protrusion category, but that's not something I would argue strongly about." 
  1. [119]
    In his written report, Dr Campbell recorded the Appellant's account that his work involved:

"shovelling mud onto a conveyor belt and lifting materials and equipment.  He also had to perform yard work.  Whilst repetitively lifting and bending to perform manual handling tasks through the course of the work shift he noted onset of increasing lower back pain and bilateral sciatica.  There was no specific precipitating event.  His symptoms came on as a result of repetitive lifting and bending.  He required no time off work over the 12 month period and ceased duties when his contract expired.

…

Following the onset of symptoms Mr Morrison had no time off work and did not seek medical treatment.  He tolerated the increased pain that occurred with performing manual handling tasks at work until his contract expired." (Exhibit 1 document 3, pages 2, 3)

  1. [120]
    In his oral evidence, Dr Campbell said that his impression was that the Appellant's work was "physical in nature" and "physically demanding for anyone to do."  It was a combination of repetitive activities that included shovelling mud from the ground onto a conveyor belt over a 12 month period, as well as lifting and handling equipment.  Dr Campbell agreed that his diagnosis depended on how the Appellant's work day was occupied.  He said:

"So my position is that he provides the history of what he's doing and then I assess whether he's got an injury or not, so I didn't have any problem with - with matching repetitively lifting mud onto a conveyor belt and lifting materials and equipment causing a back injury, because that's something I see every day." 

Dr Campbell confirmed that the diagnosis was appropriate, particularly if that work (e.g. shovelling mud) went on for much of the working day over a period of time (e.g. 12 months without any break

  1. [121]
    Dr Campbell gave evidence that, although the Appellant mentioned he was taking methadone for back pain, methadone is not commonly prescribed for pain relief.  Methadone is also, more commonly used to wean people from addictive drugs.  Dr Campbell had noted that the Appellant was taking OxyContin, which is addictive but more commonly used for pain relief than methadone.
  1. [122]
    Dr Campbell prepared a supplementary written report dated 25 April 2014, having read a report of Associate Professor Williams dated 26 March 2014 (noted below) and the Crestmead Medical Centre records, which revealed multiple entries regarding a cervical spine injury up to 2005.  Dr Campbell noted that Associate Professor Williams reported a diagnosis of degenerative lumbar spondylosis without neural compromise.  Associate Professor Williams had noted that the Appellant did not complain of lower back pain before February 2013 despite seeking medical help for a cervical spine condition.  Associate Professor Williams also stated that the CT scan lumbar spine on 20 February 2013 revealed L4/5 facetal osteoarthritis with a possible rotatory instability of the L4/5 segment, of a degenerative nature.  Dr Campbell wrote that, based on the radiological investigations he was able to review, his opinion remained unchanged that the Appellant "has a right lateral L4/5 disc protrusion" and that 60 per cent of his impairment was due to work duties from July 2011 to August 2012, with 20 per cent attributable to a motor vehicle accident on 16 July 2013 and 20 per cent attributable to external factors including previous complaints of lower back pain from 2009 to July 2011 (Exhibit 1 document 4).
  1. [123]
    Associate Professor Williams: Associate Professor Williams examined the Appellant on 19 March 2014 and prepared a written report on 26 March 2014 (Exhibit 1 document 7).  He diagnosed the Appellant as having "degenerative lumbar spondylosis without neural compression."  He records the Appellant's report that over a period of employment from July 2011 to August 2012 he was "repeatedly shovelling mud and cane millet from ground level onto a conveyor belt" and that the activity was "required every two hours."  The Appellant reported "gradually increasing lumbar spinal pain" which began in September 2011.  Associate Professor Williams noted, among other things that:
  1. (a)
    during his employment at the Mill the Appellant took no time off work for lumbar spinal symptoms;
  1. (b)
    there was "some evidence of overstatement of symptoms" by the Appellant, who has a "diminutive stature;"
  1. (c)
    the Appellant had not worked since he was dismissed in August 2012.
  1. [124]
    In assessing the Appellant's impairment, Associate Professor Williams expressed the view that the impairment "relates to a pre-existing degenerative process, the natural history of which has become apparent to the claimant in approximately February 2013.  I would not consider any symptoms to have relationship to employment, specifically that period of employment occurring between July 2011 and August 2012."  He continued, "Impairment from the lumbar spine has no relationship to employment" and concluded that he "would not consider the claimant to have suffered any work related injury to the lumbar spine." 
  1. [125]
    Associate Professor Williams recorded that he found no evidence in the medical record that the Appellant sought treatment for his lumbar spinal symptoms earlier than February 2013, despite having considerable opportunity and having presented to his usual medical officer on multiple occasions with symptoms related to the cervical spine.  He did not consider that the Appellant "experienced any exacerbation of his pre-existent processes in the workplace.  If so, any exacerbation would have been short lived and would have ceased upon cessation of the work based activity at the time."
  1. [126]
    In his oral evidence, Associate Professor Williams confirmed and expanded on those conclusions.  He said that the absence of complaint by the Appellant about his back was significant, particularly as pain in relation to specific activity is obvious at the time or within 48 hours of that activity.  There would not have been cumulative pain as there is no well-recognised accumulation of trauma to the spine based on activity performed over a period.  The most he would say in relation to the period during which the Appellant was employed was that (giving the Appellant the benefit of the doubt) the Appellant might have had some muscular ligamentous injury.  Such injury had not been reported to medical staff.  It was unlikely to have been a long-standing structural lesion in the spine. 
  1. [127]
    Furthermore, Associate Professor Williams considered it unlikely that a person would do heavy work such as this for a six-day working week and then have one day off to recover from the pain experienced as a result of the work from the preceding week.  In his opinion, that would constitute an uncommonly regular presentation of symptoms in the lumbar spine (something that he had not seen), and such a person was unlikely to recover with such regularity and be able to recover and resume duties after a period of 24 to 48 hours. 
  1. [128]
    Had there been evidence that the Appellant experienced lumbar pain during the course of his employment (and had this been reported to medical staff) and the pain had persisted beyond that period of employment to the time of Associate Professor Williams' report, then the most he would have concluded was that there had been a permanent aggravation of a pre-existing degenerative process that had been responsible for the symptoms.  However, he could find no evidence that the Appellant presented for treatment of lumbar spinal pain specifically until well after his employment ceased.
  1. [129]
    Appellant's evidence about other medication and drug use:  The Appellant gave evidence that, other than in relation to a couple of previous operations in hospital, he commenced taking OxyContin in relation to his back condition.  He took methadone for pain relief "years ago" and early in 2015.  The methadone was prescribed by a different doctor at a practice different from that from which he obtained his OxyContin prescriptions.  He agreed that he had a problem with drugs, including heroin, "on and off."  In previous years he had been an intravenous user of amphetamine, and an intravenous user of OxyContin from about 2005.  He had also been a cannabis user for many years. 

 Medical evidence - psychiatric/psychological injury

  1. [130]
    Appellant's evidence about his depression:  There is also documentary evidence, confirmed by the Appellant, that he suffered from depression in the years leading up to 2008 and, that he consulted a doctor about depression in February 2008 and August 2010 (for which Zoloft medication was prescribed), and that he suffers periodic bouts of depression.  (Exhibit 1 document 22)  The Appellant did not remember what triggered his depression, but recalled receiving medical advice that there can be a link between intravenous use of some drugs (e.g. amphetamine) and depression, but could not recall receiving such advice in relation to some other drugs (e.g. cannabis).
  1. [131]
    Dr Foxcroft:  Dr Foxcroft examined the Appellant on 24 February 2015 for the purposes of providing an independent medicolegal report dated 6 March 2015 (Exhibit 1 document 5).  When preparing the report, Dr Foxcroft also had access to and perused numerous medical records and medical reports (including by Dr Campbell and Associate Professor Williams).  Dr Foxcroft  recorded a detailed history of quite heavy physical work (including shovelling of sugar cane debris, moving steel and assisting with concreting) undertaken by the Appellant in 2011, Dr Campbell's subsequent diagnosis of a disc protrusion, and the ongoing pain and physical restrictions experienced by the Appellant.  Dr Foxcroft recorded that the Appellant said that he had become "increasingly depressed and despondent about the situation" and had become "increasingly depressed and withdrawn, … pessimistic and negative about life," and that his mood has been "very depressed."  Dr Foxcroft referred to the Appellant's previous psychiatric history (about which he was "quite vague") and difficulty with intravenous drug use until about 2005, to various difficulties in his childhood and teenage years, to his injury with a prolapsed disc to C6/7 in 2005, and to his ongoing occasional use of marijuana to help with pain and calm him down.
  1. [132]
    Dr Foxcroft diagnosed the Appellant as having developed a "clinically significant Adjustment Disorder with Depressed Mood as a consequence of an injury to his lower back which has resulted in him being disabled physically and prevented him from performing his normal work as a labourer."  He continued:

"Following the injury to his back his coping mechanisms have decompensated.  He has developed a significant depressive illness, required use of antidepressant medications and coped poorly with the subsequent loss of mobility and capacity to support himself through labouring work.

He reports ongoing pain and loss of mobility arising from the injury in the workplace and developed depressive symptoms some months after the injury which have persisted to the present time.  There does not appear to be any significant fluctuation in the symptoms of depression as a consequence of the motor vehicle accident which he was involved in in 2013.  Mr Morrison minimises the effect of this on his current condition.  There are multiple background factors contributing to his condition but were it not for the injury to his low back it is unlikely that he would present with his current symptoms of depression or Adjustment Disorder.  As such the injury in the workplace in 2011 is the major cause for his current psychiatric condition." (Exhibit 1 document 5, pages 10-11, emphasis added)

Later in his report, Dr Foxcroft wrote that there was no evidence of any pre-existing condition.

  1. [133]
    The relationship between the Appellant's physical injuries and his psychological injuries is described in the following prognosis prepared by Dr Foxcroft.

"Mr Morrison's prognosis is poor.  The outcome of his psychological injuries is likely to correlate with the outcome of his physical injuries.  He is currently physically disabled for work, is restricted in his movements, is restricted in his range of activities and has difficulty dealing with life as a consequence of his inability to engage in physical activities and work.  He has a chronic back condition which is causing this disability, the likely cause of which is the work related injury.  He experiences the back injury as a severe psychosocial stressor causing him to be despondent, depressed and have difficulty coping with life resulting in ongoing symptoms of Adjustment Disorder with Depressed Mood.  His overall prognosis is poor, his symptoms are likely to persist." (Exhibit 1 document 5 page 13, emphasis added)

  1. [134]
    In the conclusion to his report, Dr Foxcroft wrote that the Appellant had developed his Adjustment Disorder with Depressed Mood "largely as a consequence of injuries sustained in the workplace on 1 July 2011" (Exhibit 1 document 5 page 14).
  1. [135]
    When asked whether the Appellant's ability to work had been, is or would be affected by his psychiatric injuries, Dr Foxcroft wrote:

"No.  The psychological injuries themselves are not causing any impact on his capacity to work, rather it is in his physical injuries namely the back pain and back injury which is causing his incapacity for work as a casual labourer." (Exhibit 1 document 5, page 13)

  1. [136]
    In the course of his oral evidence (both in examination in chief and cross-examination), Dr Foxcroft:
  1. (a)
    recalled the Appellant saying that there was "a lot of shovelling" and that one of his "significant duties was clearing the base of the pit or the hopper," with mud going up to shoulder height;
  1. (b)
    said that the Appellant's depressive symptoms commenced some months after the season finished when it became apparent to the Appellant that his back would not get better, and he "became increasingly frustrated and depressed;"
  1. (c)
    said that the Appellant's concentration deteriorated after he injured his back, and that is a symptom of adjustment disorder (particularly given his relatively young age);
  1. (d)
    said that the Appellant had indicated that, after a difficult early background, his period of employment over 10 or 11 years was his "best years" and that, having "got his act together" since he had been working, he had been "good;"
  1. (e)
    said that the Appellant did not describe depressive symptoms during that period;
  1. (f)
    said that he was unaware that, in addition to OxyContin, the Appellant was taking methadone as prescribed by a different medical practice, but was not surprised that the Appellant was doing that (given his history of being on a methadone program, his capacity to cope with things, and that his reaction to pain "is likely to be quite bad");
  1. (g)
    said that the Appellant tended to minimise his early history in 2005 when he was seeing people at the Drug Dependence Unit;
  1. (h)
    described the apparent return to using or seeking extra medication in response to pain as a "relapse of his addiction behaviour" but "not necessarily a continuing problem," though it could indicate a dependence problem;
  1. (i)
    described methadone as an "excellent pain medication because it is longer acting" and less likely to be addictive than OxyContin;
  1. (j)
    said that the Appellant told him he was still using cannabis once or twice a week; and 
  1. (k)
    suggested that the Appellant's level of use of cannabis would not necessarily cause depression, and referred to the current debate about the use of cannabis in the treatment of pain. 
  1. [137]
    Dr Foxcroft concluded his oral evidence by noting that he had extensively looked through the records in relation to the Appellant's drug use, the rehabilitation notes from the drugs dependency program in 2005, and other notes, and could not find evidence that the Appellant had a significant depressive disorder in the period where he was working as a labourer and functioning well.  Dr Foxcroft said that his opinion did not change based on whether the Appellant had sought additional pain relief for his back pain, nor was it altered by the knowledge that the Appellant was using some amount of cannabis over the course of time.  He had taken that into account when diagnosing the adjustment disorder arising from the back injury based around a change in function and report of a change in mood. 

 Appellant's submissions

  1. [138]
    The Appellant's written submissions address both his claim that he suffered a work-related physical injury to his lower back and that he suffered a work-related psychiatric or psychological injury.  He submits that the evidence of medical experts discloses little controversy that he suffers from a lower back injury and subsequent psychological injury.  Although the precise description of the injury and the extent of its severity differ, the Appellant submits that such differences are of little import.  Each opinion arrives at the conclusion that the Appellant suffers an injury.  The question is whether or not his employment was a significant contributing factor to that injury.  He also submits that the evidence of the lay witnesses demonstrates that the Appellant's work at the Mill between July 2011 and August 2012 significantly contributed to his injuries, both physical and psychological.  It is appropriate to deal with each aspect of his claim separately.
  1. [139]
    Physical injury: The Appellant submits that the Commission can conclude, on the balance of probabilities, that:
  1. (a)
    he suffered a lower back injury and that his employment at the Mill was a significant contributing factor to the injury; or
  1. (b)
    he had a pre-existing degenerative process and his work at the Mill made it worse, and hence he suffered an aggravation of a lower back injury which arose out of or in the course of his employment at the Mill and the work was a significant contributing factor to the aggravation. 

The Appellant relies on the evidence of lay witnesses and the medical expert opinion evidence to support his claim.

  1. [140]
    The Appellant submits that the evidence overwhelmingly establishes that he worked at the Mill undertaking very hard and demanding manual labour, including clearing the pit, concreting and manoeuvring heavy items of machinery.  While there is some dispute concerning the number of days in which the Appellant shovelled in the pit and the hours taken to do so, it is clear that he did that sort of work.  His work in the pit and concreting are the most likely tasks to have caused his physical injury, and his evidence concerning his work at the Mill should be accepted.  In particular, where his evidence concerning the nature, extent and frequency of shovelling work in the pit contradicts that of Mr Drury, the Appellant's more detailed evidence should be preferred. 
  1. [141]
    The Appellant also replies to five specific criticisms of his case as follows:
  1. (a)
    the Appellant did not complete an incident report concerning the injury to his lower back because he believed that it was muscular or "labourer's back" and it was not until February 2013 that the Appellant underwent tests to confirm there was a serious issue causing his persistent pain (and, in any event, the evidence of Mr Drury is uncertain as to whether complaints were made and whether an incident report should have been generated); 
  1. (b)
    despite an assertion that the Appellant did not make complaints to any person at the Mill concerning his lower back pain, the Appellant says that complaints were made and he was specific as to the way in which he complained - and Mr Mead confirmed that the Appellant complained about doing the work, while Mr Drury's evidence about the issue was unsatisfactory;
  1. (c)
    the evidence of Ms Morrison and Ms Upton was forthright and clear and not evasive, it corroborates the Appellant's evidence and establishes that the Appellant was suffering lower back pain while working at the Mill, and that pain commenced after the crush started and did not subside after the Appellant ceased working at the Mill;
  1. (d)
    the Appellant did not complain about his lower back pain until February 2013 because he believed it was muscular pain and because he experienced more severe neck pain before that date; it was only when the back pain escalated to be similar to the neck pain that the Appellant raised it with Dr Lau and, following tests, the extent of the Appellant's lower back injury (as accepted by the medical experts) was revealed;
  1. (e)
    the Appellant was not over-exaggerating his pain, and the reason he did not report it while working at the Mill has been explained.
  1. [142]
    In relation to the alternative submission that the Appellant suffered an aggravation of a lower back injury, the Appellant submits that the evidence reveals that his work at the Mill made his pre-existing degenerative process worse, and that the aggravation did not improve once the work stopped.  His pain increased after the start of crushing season and did not subside.  It ultimately got worse, and in February 2013 he underwent tests to reveal the extent of his injury. 
  1. [143]
    Psychiatric or psychological injury:  The Appellant submits that there is uncontested evidence that he suffered a psychiatric or psychological injury as a consequence of his physical injury.  He relies on the opinion of Dr Foxcroft that he developed a clinically significant Adjustment Disorder with Depressed Mood as a consequence of an injury to his lower back which resulted in the Appellant being disabled physically and prevented him from performing his normal work as a labourer.  The Appellant notes that the Respondent called no evidence to contradict Dr Foxcroft's opinion.  Rather, the Respondent challenges the Appellant's case on the basis that the psychological injury was caused by the physical injury and, as no causal connection existed between the Appellant's employment and the physical injury, no causal connection exists between his employment and the psychological injury.  The Appellant submits that, as his physical injury was causally connected with his employment at the Mill, it follows that employment is the major significant contributing factor to his psychiatric or psychological injury. 
  1. [144]
    The Appellant submits that, on that basis, his appeal should be allowed, the Respondent's decision dated 24 November 2014 should be set aside, his claim for compensation should be accepted, and the Respondent should pay his costs of and incidental to this appeal. 

 Respondent's submissions

  1. [145]
    The Respondent submits that:
  1. (a)
    any lower back pain suffered by the Appellant does not have any causal connection with the work he was performing as an employee; and
  1. (b)
    consequently, if the Appellant has suffered a psychiatric injury because of any pain he was suffering in his lower back, such a psychiatric injury is not a compensable injury because there can be no causal connection between any work performed by the Appellant had any psychiatric injury he has suffered.

It follows that the Appellant's appeal should be dismissed, and that the Appellant should pay the Respondent's costs of and incidental to the appeal.

  1. [146]
    In support of those conclusions, the Respondent submits that the Commission could not feel an actual persuasion that, on the balance of probabilities, there is a causal connection between the Appellant's lower back injuries and the work he was performing at the Mill because:
  1. (a)
    Associate Professor Williams gave very clear and unequivocal evidence that the lumbar spine pain experienced by the Appellant is not related to his work activities at the Mill but is related to the underlying degeneration in his lumbar spine;
  1. (b)
    there is no credible evidence that the Appellant ever made any complaint to any person at the Mill (including the maintenance supervisor, Mr Drury) about him experiencing lower back pain from performing his work (including pit work, shovelling work and tradesmen's work) at the Mill;
  1. (c)
    the evidence given by the Appellant's sisters is not reliable because                    Ms Morrison's memory was not good and Ms Upton's evidence that the Appellant only complained about pain to his lower back is inconsistent with the Appellant's evidence in chief about all the other pain to other parts of his body that he was experiencing from performing work at the Mill;
  1. (d)
    although the Appellant claimed that he had suffered his lower back injury over a period of time from July 2011 until August 2012, he did not make any complaint about it to any general practitioner at the Middle Road Medical Clinic (Dr Feng and Dr Lau) until February 2013, despite having every opportunity to do so;
  1. (e)
    the Appellant was over-exaggerating the pain that he said he was suffering when working at the Mill - as evident from the fact that the pain did not prevent him continuing to work there on six days per week (during the crush), and that he did not report that pain to someone at work, complete a work incident or risk report about any such injury, and did not make any such report to any medical practitioner at the time he said he was experiencing such pain.
  1. [147]
    The Respondent submits that the logical explanation for the Appellant's lumbar pain is that it is a result of the degenerative nature of his lumbar spine.
  1. [148]
    If, as the Respondent submits, the Commission accepts that the Appellant's lower back pain is not causally connected to the work he was performing at the Mill, there can be no secondary psychiatric injury which arose out of or in the course of the Appellant's employment and where his employment is a significant contributing factor to such an injury.

Consideration

  1. [149]
    As noted earlier, the appeal has to be decided by reference to s 32 of the Act and the Appellant carries the onus of proving on the balance of probabilities that he has an "injury" within the meaning of the Act.  Specifically, for his appeal to succeed, the Appellant has to satisfy the Commission that he has suffered an injury, that the injury arose out of, or in the course of, his employment at the Mill, and that his employment was a significant contributing factor to that injury.  The Commission must feel an actual persuasion before the alleged facts can be found to exist.  The mere possibility of the Appellant suffering an injury on mere conjecture is not enough.  There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish.  The Commission cannot substitute speculation for satisfaction on the balance of probabilities.  Before expert medical evidence can be of value, the facts upon which it is founded must established.
  1. [150]
    In addition to the direct oral evidence from the Appellant, there is evidence from other lay witnesses and expert evidence from medical practitioners.  The conclusions set out below draw on the evidence as a whole, with appropriate weight being given to particular types of evidence relevant to the specific issue or issues to be decided.
  1. [151]
    In light of the expert medical evidence, I find that the disc protrusion at L4/5 and associated changes at that part of his spine are aspects of a degenerative condition, the onset of which was not related to, or caused by, the Appellant's employment.  The CT scan on 20 February 2013 identified a right lateral disc protrusion at L4/5 with bilateral nerve root compromise and mild spinal stenosis at that level.  There were marked facet joint degenerative changes at that level.  Dr Campbell's evidence is that, at that date, the protrusion was small but significant. Indeed, he stated that it was small enough that he contemplated calling it just a soft tissue injury. 
  1. [152]
    There was no clinical evidence about the period over which that condition developed.  According to the Appellant, he experienced mild back soreness when he commenced work at the Mill in July 2011.  Dr Campbell reports (presumably on the basis of what the Appellant told him) that the Appellant developed onset of intermittent lower back pain from 2009 whilst performing manual handling tasks at work.  Dr Campbell attributed part of the Appellant's impairment to external factors including previous complaints of lower back pain from 2009 to July 2011.  I will not speculate whether that evidence is sufficient to establish that the onset of the lower back condition preceded the Appellant's employment at the Mill. 
  1. [153]
    However, having regard to the expert medical evidence, and the Appellant's evidence about his symptoms, I am not satisfied that the Appellant's employment at the Mill was a significant contributing factor to the disc protrusion at L4/5 and the other degenerative conditions in that location of the Appellant's spine.  Rather, I prefer the evidence of Associate Professor Williams that the Appellant has degenerative lumbar spondylosis without neural compression, and that his impairment relates to a pre-existing degenerative process, the natural history of which became apparent to the Appellant in approximately February 2013.  That diagnosis is not inconsistent with Dr Campbell's suggestion that the degeneration commenced before the Appellant commenced work at the Mill.  However, for present purposes, it is sufficient that I find that the degenerative condition was not one for which the Appellant's employment at the mill was a significant contributing factor.
  1. [154]
    It follows from that finding, that the only "injury" to be considered is a possible aggravation of the disc protrusion at L4/5.  That aggravation, if proved, would fall within the definition of "injury" for the purpose of s 32(1) of the Act by virtue of s 32(3)(b) so long as the Appellant can also prove that the aggravation arose out of, or in the course of, his employment and the employment is a significant contributing factor to the aggravation.
  1. [155]
    I will consider those two matters in reverse order.  In summary, the Appellant's evidence is to the effect that:
  1. (a)
    he performed a range of manual labour tasks at the Mill;
  1. (b)
    the removal of cane debris with mud from the pit (or pits) was the most physically taxing;
  1. (c)
    he experienced soreness in various parts of his body (including his back) and was tired as a result of that work; and
  1. (d)
    his level of physical discomfort and soreness increased as the 2011 crush season progressed, but reduced somewhat during the following maintenance periods.
  1. [156]
    There is little corroborating evidence in relation to his claimed injury.  The only evidence that might support the Appellant's claim is, in summary:
  1. (a)
    Ms Morrison's evidence that he experienced progressively worse back pain towards the end of the crush season when he was digging debris and dirt; and
  1. (b)
    Ms Upton's evidence that he complained of always being tired when the crush was on and, when he was doing the work in the pit, he was much more fatigued and always complaining, and that he said that his lower back was hurting and that the pain was getting worse.
  1. [157]
    In light of the evidence given by the Appellant and other workplace witnesses about the removal of debris from the pits, I have concluded that the Appellant exaggerated the frequency and duration of his pit work and the extent of his physical exertion in undertaking that work.  However, the difference is one of degree and does not preclude a finding that he performed such work, that the work was repetitive and at times hard, that it was conducted in a dirty, smelly and uncomfortable environment, and that he experienced soreness to various parts of his body including his back.
  1. [158]
    However, it is clear from the evidence of the Appellant, Mr Drury and Mr Mead, that everyone who worked in the pit disliked the work and complained about it.  More generally, it is unexceptional to note that the pit work together with the other manual labour tasks undertaken by the Appellant in the course of his work at the Mill were at times physically demanding.  It is not surprising, indeed to be expected, that he would have been tired at the end of each day when he was fully engaged in manual labour.  He acknowledged as much in his evidence, including his references to "labourer's back," which I take to be a description of a muscular condition affecting people involved in such work.  That evidence does not, however, compel a conclusion that the Appellant aggravated the disc protrusion at his L4/5 in the course of his employment.
  1. [159]
    On the other hand, there is evidence from:
  1. (a)
    Mr Drury that the Appellant did not complain to him about sustaining any injury or soreness when he was cleaning the pits or as a result of his other work at the Mill;
  1. (b)
    Mr Bressow that the Appellant suffered injuries to his eyes as a result of failing to wear safety glasses, but did not complain to him about other injuries and, in particular, did not complain about a back injury or even how hard work was;
  1. (c)
    Mr Hinchelwood that the Appellant told him once during the maintenance period after the crush while they were concreting that he was "buggered" or worn out, however the Appellant did not complain about a sore back;
  1. (d)
    Mr Mead that the Appellant used to complain about doing the work in the pit, but not about his back or the weight of the debris, and the only injury of which he was aware was when the Appellant whacked his knee on a piece of steel;
  1. (e)
    Mr Drury and Mr Mead the work in the pit was not heavy and that anyone who worked in the pit was assisted by one or more other workers.
  1. [160]
    Both Dr Campbell and Associate Professor Williams observed that the Appellant required no time off work during the 12 month period in which he said he experienced back pain.  Both doctors relied on the Appellant's account of the nature, duration and physical intensity of his work, particularly the shovelling of cane debris and mud in the pits.  As noted above, I am satisfied that the Appellant overstated those factors in his evidence to the Commission.  He overstated them to those doctors.                      Associate Professor Williams also observed that there was some evidence of overstatement by the Appellant of his symptoms.  Even giving him the benefit of the doubt, Associate Professor Williams' evidence in relation to cumulative pain, and the unlikelihood that someone would recover after a period of 24 to 48 hours every week or so, would at most support a conclusion that there had been an aggravation of a pre-existing degenerative process that was responsible for the Appellant's symptoms.
  1. [161]
    The absence of any formal report by the Appellant about particular pain or soreness in his back during the entire period of his employment at the Mill, and the fact that the first recorded medical reference to that is in Dr Feng’s consultation notes on                16 February 2013, some seven months after the Appellant’s employment at the Mill ceased, means that there is no medical or other record during his period of employment to corroborate even a specific assertion that might link his work to any aggravation of his degenerative spinal condition. 
  1. [162]
    The doctors who issued the various medical certificates referred to earlier (which were among the agreed set of documents tendered in evidence) were not called to give evidence and could not be examined in relation to those documents.  Consequently, I give the certificates relatively little weight for this purpose.  I note, however, that they do not bolster the Appellant's case.
  1. [163]
    By contrast with the absence of any formal report by the Appellant about the condition of his back during or immediately after his period of employment at the Mill:
  1. (a)
    there are records of injuries to other parts of the Appellant’s body during that period of employment;
  1. (b)
    the Appellant reported to his general practitioners (Dr Feng and Dr Lau) after he left employment at the Mill about significant pain in his neck over a period between October 2012 and February 2013, and there are written reports about their investigations and treatment, but there was no suggestion that neck injury was work-related (though it may have been related to moving house in October 2012);
  1. (c)
    Dr Feng noted in his consultation notes for 22 October 2012 that the Appellant "has been well until now".
  1. [164]
    It follows that I am not satisfied that the Appellant's employment at the Mill was a significant contributing factor to his lower back condition. 
  1. [165]
    In light of that conclusion, it is not necessary to determine whether the Appellant suffered an aggravation of the degenerative condition at L4/5 in the course of his employment at the Mill.
  1. [166]
    I am satisfied that, despite some history of psychiatric issues and periodic depression and drug dependency in years preceding his employment at the Mill, the Appellant's current condition (diagnosed as a clinically significant Adjustment Disorder with Depressed Mood) is a consequence of the physical symptoms that the Appellant experiences as a result of his lower back condition.  That finding is based primarily on the uncontradicted evidence of Dr Foxcroft.  However, because of the previous conclusion in relation to his degenerative lower back condition, I do not find that the Appellant's employment at the Mill was the major significant contributing factor to his psychiatric or psychological disorder.

 Conclusion and orders

  1. [167]
    In light of the findings and conclusions set out above, it follows that the appeal must be dismissed and the decision by the Respondent to reject the Appellant's application for compensation is confirmed.
  1. [168]
    As noted earlier, each party submits that if it succeeds in relation to this appeal the other party should pay its costs of and incidental to the appeal.  Subject to one qualification, I am satisfied that such an order is appropriate in this case. 
  1. [169]
    On Friday, 27 March 2015, the Commission listed the matter for mention at short notice to consider the implications of the unexpected unavailability of most of the witnesses that the Respondent was scheduled to call to give evidence the following week.  The issue was whether the hearing should proceed as scheduled and be part-heard, or whether the whole hearing should be adjourned to a later date.  In the circumstances, the hearing proceeded as scheduled on 30 and 31 March 2015 to hear evidence from the Appellant and witnesses called by him.  The remainder of the hearing was then adjourned to a later date. 
  1. [170]
    At the mention on 27 March 2015, counsel for the Respondent stated that there would be no issue with the Respondent paying any costs thrown away on account of the difficulty from the unavailability of the Respondent’s witnesses.  At the conclusion of the mention I indicated that the Respondent would bear:
  1. (a)
    the costs of the mention; and
  1. (b)
    any costs thrown away by the Appellant as a consequence of the adjournment of part of the proceedings the following week.
  1. [171]
    Although no mention of that matter was made in the written submissions of either party at the end of the hearing, I am satisfied that the position indicated by me on               27 March 2015 should be reflected in the costs order.
  1. [172]
    Accordingly, although I am content to make a general order in relation to costs in favour of the Respondent, the order will be in the form that the amount of costs is to be agreed between the parties or, if agreement cannot be reached, the matter can be subject of a further application to the Commission.  I will proceed on the basis that, in seeking to determine the appropriate amount to be paid by the Appellant to the Respondent, allowance will be made for the costs incurred by the Appellant in relation to the unscheduled mention on 27 March 2015 and any costs thrown away by the Appellant because of the adjournment of the hearing on 31 March 2015. 
  1. [173]
    For the reasons set out above:
  1. (a)
    the appeal is dismissed;
  1. (b)
    the decision of the Respondent dated 24 November 2014 and sent by letter dated 28 November 2014 to the Appellant is confirmed;
  1. (c)
    the Appellant is to pay the Respondent's costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.
  1. [174]
    Order accordingly.

Footnotes

[1] Kavanagh v The Commonwealth (1960) 103 CLR 547, 556 (Dixon J), 558 (Fullagar J)

[2] 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).

[3] Commonwealth of Australia v Lyon (1979) 24 ALR 300, 303-304 (Deane J); Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, 478 (Mason CJ, Deane, Dawson and McHugh JJ); Theiss Pty Ltd v Q-COMP (C/2010/11) - Decision http://www.qirc.qld.gov.au at [3] (Hall P).

[4] Q-COMP v Green (2008) 189 QGIG 747, 751 (Hall P); Luxton v Q-Comp (2009) 190 QGIG 4, 6 (Hall P).  See also Qantas Airways Limited v Q-COMP and Blanch (2009) 191 QGIG 115, 119 (Hall P).

[5] Graham Douglas Stewart v Q-COMP (C/2010/52) - Decision http://www.qirc.qld.gov.au, [15] (Hall P).

[6] Newberry v Suncorp Metway Insurance Limited [2006] 1 Qd R 519.

[7] See e.g. Q-COMP v Hetherington [2004] QIC 47, (2004) 176 QGIG 493 (Hall P). 

[8] See Rossmuller v Q-COMP (C/2009/36) - decision http://www.qirc.qld.gov.au, [2]; State of Queensland (Queensland Health) v QComp and Beverley Coyne (2003) 172 QGIG 1447.

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

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

[11] Coombes v Q-Comp (2007) 185 QGIG 680, 681 (Hall P); see also Newman v Blackwood [2015] ICQ 014, [4], [7] (Martin J).

Close

Editorial Notes

  • Published Case Name:

    Morrison v Workers' Compensation Regulator

  • Shortened Case Name:

    Morrison v Workers' Compensation Regulator

  • MNC:

    [2016] QIRC 65

  • Court:

    QIRC

  • Judge(s):

    Neate IC

  • Date:

    13 Jun 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
Avis v WorkCover Queensland (2000) 165 QGIG 788
2 citations
Jump To
Cite 1 - (2000) 165 QGIG 788
Cite 2 - (2000) 165 QGIG 788
Coombes v Q-Comp (2007) 185 QGIG 680
2 citations
Jump To
Cite 1 - (2007) 185 QGIG 680
Cite 2 - (2007) 185 QGIG 680
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
2 citations
Jump To
Cite 1 - (1992) 173 CLR 473
Cite 2 - (1992) 173 CLR 473
Kavanagh v The Commonwealth (1960) 103 CLR 547
2 citations
Jump To
Cite 1 - (1960) 103 CLR 547
Cite 2 - (1960) 103 CLR 547
Luxton v Q-Comp (2009) 190 QGIG 4
2 citations
Jump To
Cite 1 - (2009) 190 QGIG 4
Cite 2 - (2009) 190 QGIG 4
MacArthur v WorkCover Queensland (2001) 167 QGIG 100
2 citations
Jump To
Cite 1 - (2001) 167 QGIG 100
Cite 2 - (2001) 167 QGIG 100
Newberry v Suncorp Metway Insurance Ltd[2006] 1 Qd R 519; [2006] QCA 48
2 citations
Jump To
Cite 1 - [2006] 1 Qd R 519
Cite 2 - [2006] 1 Qd R 519
Newman v Workers' Compensation Regulator [2015] ICQ 14
2 citations
Jump To
Cite 1 - [2015] ICQ 14
Cite 2 - [2015] ICQ 14
Nilsson v Q-Comp (2008) 189 QGIG 523
2 citations
Jump To
Cite 1 - (2008) 189 QGIG 523
Cite 2 - (2008) 189 QGIG 523
Q-COMP v Green (2008) 189 QGIG 747
2 citations
Jump To
Cite 1 - (2008) 189 QGIG 747
Cite 2 - (2008) 189 QGIG 747
Q-Comp v Hetherington (2004) 176 QGIG 493
2 citations
Jump To
Cite 1 - (2004) 176 QGIG 493
Cite 2 - (2004) 176 QGIG 493
Q-Comp v Hetherington [2004] QIC 47
2 citations
Jump To
Cite 1 - [2004] QIC 47
Cite 2 - [2004] QIC 47
QANTAS Airways Limited v Q-Comp and Michelle Blanch (2009) 191 QGIG 115
2 citations
Jump To
Cite 1 - (2009) 191 QGIG 115
Cite 2 - (2009) 191 QGIG 115
State of Queensland v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447
2 citations
Jump To
Cite 1 - (2003) 172 QGIG 1447
Cite 2 - (2003) 172 QGIG 1447
The Commonwealth v Lyon (1979) 24 ALR 300
2 citations
Jump To
Cite 1 - (1979) 24 ALR 300
Cite 2 - (1979) 24 ALR 300
WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6
2 citations
Jump To
Cite 1 - (2003) 172 QGIG 6
Cite 2 - (2003) 172 QGIG 6

Cases Citing

Case NameFull CitationFrequency
Mateo v Workers' Compensation Regulator [2022] QIRC 1503 citations
Shaw v Workers' Compensation Regulator (No. 3) [2022] QIRC 333 citations
Skinner v Workers' Compensation Regulator [2022] QIRC 193 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.