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Taylor v Workers' Compensation Regulator[2017] QIRC 6

Taylor v Workers' Compensation Regulator[2017] QIRC 6

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Taylor v Workers' Compensation Regulator [2017] QIRC 006

PARTIES:

Taylor, Jason Paul

(appellant)

v

Workers' Compensation Regulator

(respondent)

CASE NO:

WC/2015/88

PROCEEDING:

Appeal

DELIVERED ON:

1 March 2017

HEARING:

18 July 2016

MEMBER:

Deputy President O'Connor

ORDERS :

  1. Appeal dismissed;
  2. The decision of the respondent dated 9 March  2015 is affirmed; and
  3. The appellant is to pay the respondent's costs of and incidental to this appeal to be agreed, or failing agreement, to be the subject of a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION – PHYSICAL INJURY – whether there was an "injury" – whether injury arose out of, or in the course of, worker's employment – whether employment was a significant contributing factor to the injury – where appellant bears the onus of proof – appeal dismissed

CASES:

Workers' Compensation and Rehabilitation Act 2003, s 32

Ramsay v Watson (1961) 108 CLR 642

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

Chattin v WorkCover Queensland (1999) 161 QGIG 531

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

Holtman v Sampson [1985] 2 Qd R 472

Davidson v Blackwood [2014] ICQ 008

Qantas Airways Ltd v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 082

Luxton v Q-Comp (2008) 190 QGIG 4

Q-Comp v Green (2008) 189 QGIG 747

Poulsen v Q-COMP (C/2011/29)

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

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

APPEARANCES:

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

MacArthur v WorkCover Queensland (2001) 167 QGIG 100

Lackey v WorkCover Queensland [2000] 165 QGIG 22

Carmen v Q-COMP (2007) 186 QGIG 512

Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181

Ms S Anderson of Counsel, instructed by Shine Lawyers for the appellant

Mr A McLean-Williams of Counsel, instructed directly by the respondent

  1. [1]
    This is an appeal by Jason Paul Taylor ("the appellant") against a decision of the Review Unit of the Workers' Compensation Regulator ("the respondent") of 9 March 2015 to confirm WorkCover Queensland’s decision to reject the appellant's application for compensation in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ("the Act").
  1. [2]
    The appellant contends that he sustained an umbilical hernia at work on or about 29 January 2014.
  1. [3]
    It is the appellant's case that it is open to the Commission to find either an aggravation of a pre-existing injury (an accepted hernia in 2013), or that the alleged work incident on 29 January 2014 was a "standalone injury". 

Relevant statutory provisions

  1. [4]
    The appeal is to be determined by reference to s 32 of the Act which relatively provides as follows:

"32Meaning of injury

  1. (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;

…

  1. (3)
    Injury includes the following—

…

  1. (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—

(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; …"

The issues

  1. [5]
    The issues to be determined are whether:
  1. (a)
    The appellant suffered an injury;
  1. (b)
    whether the injury arose out of, or in the course of, the appellant's          iemployment; and
  1. (c)
    whether the employment was a significant factor to the injury
  1. [6]
    It is accepted that the appellant is a worker for the purposes of the Act.

Background and events

  1. [7]
    The appellant commenced employment on 6 June 2012 as a car detailer at Magnetic Motors trading as Carmichael Ford in Townsville.  Prior to his employment with Carmichael Ford, the appellant was employed as a truck detailer at Followmont Transport. He had completed his senior certificate with the assistance of the Special Education Branch of the Department of Education. The appellant, in his own words, can get “muddled up a bit.”[1]
  1. [8]
    The appellant suffered a first hernia in late 2012 and underwent surgery to repair it in 2013. That first hernia was assessed as being work-related by the Medical Assessment Tribunal.
  1. [9]
    The appellant’s duties as a car detailer at Carmichael Ford involved washing the front row of cars (those facing the street) each morning.  The appellant was typically allocated between 30 and 35 cars per day to wash and was, at the relevant time, working a 7am to 4pm shift.
  1. [10]
    Mr Taylor told the Commission that sometime on the afternoon of 29 January 2014 he was working his way down the Range Rovers near the Mercedes-Benz; he had reached halfway so he needed to move the hose because it was not long enough.  The evidence of the appellant was that the hose ranged between 50 and 89 metres in length and weighed between 37 and 42 kilograms when filled with water.
  1. [11]
    The appellant disconnected the hose, rolled it up, and carried it on his shoulder to where the Range Rovers were parked to finish washing the front row.   He said he unraveled the hose, plugged it in "…and put it nice and neatly in the yard". At that point the hose was filled with water,[2] he went to pick up the hose and about half-way up he felt a sharp, excruciating pain: "I dropped the hose and just - just hit the floor."[3] It was submitted that this event caused the injury.
  1. [12]
    After his injury he went to the office of the Dealer Principal, Mr Glen Sharp, but he was not in his office.  He said he spoke to the Mr Sharp’s secretary, Georgie, and tried to show her his injury.[4] Georgie was not called to provide evidence. The appellant then tried to find a salesman without success before approaching the Business Manager, Ms Judy Searight, to seek her assistance.  The Commission was told by the appellant that he told Ms Searight that he had "…an injury to the left side of the abdominal wall." According the appellants evidence, Ms Searight rang for a taxi to transport the appellant to his Hyde Park home. The appellant would usually have walked home from his place of employment.[5]
  1. [13]
    When the appellant arrived home, his stomach was bulging in a way different to his previous hernia.  He said that he "… felt pale, vomiting, clammy. I was just - in a world of really honestly hurt."[6] An ambulance was called and it took him "straight to the Emergency Department at the Douglas Hospital."[7] I note that the Townsville Hospital is in the suburb of Douglas.
  1. [14]
    There was no report made by the appellant to the Emergency Department of the Townsville Hospital nor did the records of the QAS suggest a work-related injury.
  1. [15]
    The clinical records of the Emergency Department for 29 January 2014 record "multiple similar episodes of pain over the previous yr" but they make no mention of lifting a hose, a bulge or lump on that day.  The appellant’s medical records disclose a history of ambulance trips to the Townsville Hospital in the six-month period before the alleged injury. Included in that history are, amongst other things, reports of periodic epigastric and abdominal pain.  The following is a brief chronology of the appellant's pre-29 January 2014 attendance at the Emergency Department of the Townsville Hospital:[8]
  • Complaining of eye pain and subsequently diagnosed with a corneal abrasion, 5 March 2013.  Discharged with antibiotics.
  • Ambulance called to residence after complaining of sudden onset of abdominal pain with vomiting and nausea and thought he felt a lump after picking up a hose but upon examination no masses identified only abdominal tenderness on 17 June 2013.  Discharged with pain relief.
  • Ambulance called to workplace after complaining of headache, nausea and vomiting due to neighbour's use of epoxy resin, 1 August 2013. Discharged with analgesia and reassurance.
  • Ambulance called to residence, complaining of sharp epigastric pain and reporting 'abdomen is more bloated than usual' on 19 September 2013.  Reported 'fairly good' since repair of hernia in February 2013. X-ray performed with no obstruction, perforation or abnormality identified. Diagnosed with gastritis and endoscopy recommended.
  • Ambulance called to residence, complaining of sharp epigastric pain with nausea and vomiting on 22/23 September 2013.  Diagnosed with gastro-oesophageal reflux.
  • 15 November 2013, the appellant was admitted for endoscopy following the identification of a small hiatus hernia.  Biopsies were taken for Barrett's oesophagus but the histology was not indicative of Barrett's. PPI's were recommended.
  • An ambulance was called to the appellant's residence on 20 January 2014. The records from the ED suggest that the appellant complained of lower back pain.  He reported that the lower back pain was felt while at work on Friday 17 January 2014 but denies straining or trauma. 
  1. [16]
    17 June 2013 is particularly interesting given the report of Dr Megan Whitley, Senior House Doctor at the Townsville Hospital:

"Thank you for your ongoing care of Jason. I had the pleasure of reviewing this delightful 41 yr old gentlemen who presented with abdo pain. He had 1 vomit this morning and had ongoing nausea since. At 2pm he picked up a hose and had a sudden onset of severe upper abdo pain. He felt there was a lump in his epigastric region which was new. Jason had a hernia repair in Feb this year ...."

  1. [17]
    It is of interest to note that the incident of 17 June 2013 bears a striking similarity to the event which the appellant claims occurred on 29 January 2014.
  1. [18]
    Post-29 January 2014, the appellant maintained a steady attendance at the Townsville Hospital as the following chronology indicates:
  • 2 February 2014, the appellant presented at ED with acute abdominal pain.  The examination revealed a ventral hernia with omentum in sac causing pain. Recommended urgent ultrasound and necessary surgical repair.
  • 29 February 2014, the appellant's GP refers him to Surgical Outpatients for appointment.
  • 13 March 2014, an ambulance was called to the appellant's residence - complained about abdominal pain and vomiting with epigastric bulge.  Reported to QAS he had been told he has ventral hernia. Reported to ED he has similar pain many times before, gets it every 3-4 days. Not sure what triggered it this time, worse than normal. Planned CT or ultrasound to clarify extent of hernia. Discharge summary records "likely small umbilical hernia'.
  • Report to GP from Surgical Registrar dated 1 April 2014 noting ongoing pain with associated nausea and vomiting.  On admission, a small para-umbilical hernia on the left side noted.  Referred for a CT scan to define issues.
  • CT scan performed on 23 April 2014.  Small hernia containing omental fat found.  Also a small left inguinal hernia containing fat is noted.  Report to GP dated 29 April 2014 notes: "Recurrent midline supra umbilical hernia containing inflamed omental fat".  "Previous umbilical hernia repair noted … Hernia felt to protrude on cough.".  Booked for repair.
  • 13 June 2014, an ambulance was called to the appellant's residence. The appellant complained of abdominal pain associated with hernia.  Reported to QAS he woke with burning pain with bulge.  Reported that he is not taking his reflux medication. Treated with analgesia and antiemetics. Abdominal x-ray undertaken with no evidence of obstruction or masses.
  • Ambulance called to residence, complaining of sharp abdominal pain, nausea and flu-like symptoms, 1 July 2014.  Abdominal X-ray performed - no obstruction or masses. Diagnosed with incisional hernia. Discharged with analgesics and aperients (laxatives).
  • On 17 July 2014 the appellant underwent a repair of the hernia. The hospital records note: "4-5 cm defect supraumbilical at superior margin of previous intraperitoneal PVP – small 1 cm defects superolateral margins of previous mesh – omentum in sac…"  No heavy lifting for 6 weeks post-op.  Was advised to report to ED if feeling unwell.

Did the appellant sustain a personal injury?

  1. [19]
    It is not contested the appellant suffered a personal injury, a hernia, which required surgical intervention on 17 July 2014.  It is not clear whether the injury was an aggravation of a pre-existing condition (i.e. an aggravation of the hernia that developed in 2012/2013 and which was subsequently repaired in February 2013) or a new injury (i.e. a new hernia). 

Did Mr Taylor sustain an injury that arose out of, or in the course of, his employment?

  1. [20]
    As I have stated, the appellant contends he suffered an injury on 29 January 2014 when he picked up a hose he used every day while fulfilling his duties as a car detailer.  On that day he felt sharp pain upon picking up the hose and then felt a bulge in his abdomen.
  1. [21]
    While it is the appellant's case that the injury arose from the lifting of the hose on the 29 January 2014, the appellant gave evidence that he felt pain when picking up the hose that was unraveled, not from carrying the hose on his shoulder. 
  1. [22]
    The principal of the dealership, Mr Glen Sharp, gave evidence that he was not told by the appellant nor anyone else that the appellant had suffered an injury while at work on 29 January 2014.[9] Mr Gary Lewis, General Manager of the dealership, also gave evidence that he was not aware any incident or injury occurring on 29 January 2014.[10] Ms Judy Searight has no recollection of any events related to Mr Taylor’s alleged injury on 29 January 2014.[11]
  1. [23]
    The appellant told the Commission that he made a contemporaneous diary note for 29 January 2014 in which he makes reference to washing new cars and experiencing "Cramps where I had my op."[12]
  1. [24]
    The diary note contains a small sketch of an ambulance suggesting that an ambulance was called to the dealership.  In cross-examination, the appellant gave evidence that an ambulance was called by a salesman and transported him to hospital.
  1. [25]
    Under cross-examination, the appellant stated a further two times he was sure an ambulance picked him up from work.  However, the Queensland Ambulance Service (QAS) records show the appellant was taken on 29 January 2014 by ambulance from his home to Townsville Hospital, rather than from the dealership. Upon re-examination, the appellant stated he was not sure on what day an ambulance was called for him at work.
  1. [26]
    During the hearing conflicting evidence was led about the sequence of events occurring after the incident and how the appellant arrived home. An apparently contemporaneous entry from the appellant’s diary suggested that a salesman at the dealership had called the ambulance for Mr Taylor and that ambulance had taken him from his place of work to the Townsville Hospital. That did not happen. Records from the Queensland Ambulance Service confirm that the appellant made a trip from his residence in Hyde Park to the Townsville Hospital.[13] It is not clear how the appellant returned to his home as Ms Searight has no recollection of organising a taxi for him.[14]  
  1. [27]
    Despite suffering from recurring abdominal pain, the appellant gave evidence that he had not felt such severe pain nor a bulge on a prior occasion. 
  1. [28]
    It is also contended by the appellant that, despite suffering from pain in the past, it had never been so severe that he did not return to work and that, therefore, provides further evidence the injury occurred on 29 January 2014 because after that date the appellant did not return to work.
  1. [29]
    The appellant also contends he was not doing anything else other than picking up the hose that might have induced the pain and the bulge.
  1. [30]
    The documentary evidence before the Commission does not support the appellant's contention that he suffered a work related injury on 29 January 2014. The QAS records do not align with Mr Taylor’s recollection of the events of 29 January 2014. Moreover, the hospital records do not assist him either.

 Expert Medical Evidence

  1. [31]
    At the request of the appellant's solicitors, the appellant saw Dr William Braun a Laparoscopic, Gastrointestinal and General Surgeon on 4 December 2014.
  1. [32]
    In his report of 9 January 2015, Dr Braun states that:

"Mr Taylor's injuries are better categorized as having been caused by a specific event such as lifting a heavy hose weighing approximately 40 kilograms in early 2013 and January 2014. Furthermore the 29 January 2014 event caused an aggravation or recurrence of the previous injury, as the recurrence occurred in approximately the same location as the previous hernia and certainly his abdomen was weakened as a result of prior surgery."[15] 

  1. [33]
    However, in his supplementary report dated 10 June 2015, Dr Braun proffers the following opinion:

"Usually it is quite unlikely that the integrity of the abdominal wall can be jeopardised in one hit. It is however possible that pre-existing weakness was present and even then repetitive injuries were likely culminating in hernia incarceration in February 2013."[16]

  1. [34]
    In his report of 9 January 2015, Dr Braun records that the appellant was morbidly obese with a BMI of 45 (weighing 132 kilograms) and an overall lack of fitness which would be a predisposing factor contributing to the development of hernias.  In his oral evidence before the Commission, Dr Braun went further by expressing the opinion that morbid obesity was "…a sole factor or one of the most significant factors of increasing…" the chance of a recurrence of the hernia.
  1. [35]
    The appellant attended on Professor Michael O'Rourke on 18 February 2015 for the purposes of an independent clinical assessment.  Professor O'Rourke provided a medical report dated 18 February 2015.
  1. [36]
    Professor O'Rourke also identifies morbid obesity to be a significant risk factor in the reoccurrence of a hernia. Professor O'Rourke accepted that morbid obesity contributes enormously to the cause of a hernia, and, in his view, obesity would contribute more than 50 per cent to such an occurrence.
  1. [37]
    Both Dr Braun and Professor O'Rourke expressed the opinion that there is a high chance of recurrence with an umbilical hernia. In cross-examination, Dr Braun told the Commission:

Mr McLean-Williams: Can I just pause you.  I just want to clarify something.  Are you saying that in all cases where a person has had a hernia repair there is a chance that the hernia will reoccur?

Dr Braun: Correct.

Mr McLean-Williams: Irrespective of what the person does and irrespective of whether the person is obese or not?

Dr Braun: I didn’t say irrespective of what a person does.  If the patient – if a person has a – yes.  The first part of the question is correct.  Any hernia can recur after the most perfect repair regardless of whether a person is obese.  If [indistinct] repair of an umbilical hernia carries a chance of five per cent to 10 per cent recurrence.  If a person is obese, possibly the hernia recurrence rate raises and in his particular case, maybe to 40 per cent – 30 or 40 per cent.  That is correct as well.  However, I can tell you – what was the second part of the question, sorry?  Just rephrase that.

Mr McLean-Williams: That irrespective of what a person is doing, the hernia may reoccur?  

Dr Braun: Correct.  If he was sitting at a desk, the chances of recurrence probably are much less than what I quoted.  But as a heavy lifting job, the chances increase because he has certainly a weakened area surrounding that hernia repair, provided the hernia repair is [indistinct].[17]

  1. [38]
    The umbilical hernia was not, in the opinion of Professor O'Rourke, caused by the lifting of the hose because in his view lifting heavy weights does not cause a hernia.
  1. [39]
    Professor O'Rourke does not accept Dr Braun's view that heavy lifting causes hernias.  However, he indicated that if the abdominal pressure inside is greater than the pressure outside, it can push something through, usually a piece of fat or bowel. A positive change in pressure can result in something popping through the hole, so coughing, sneezing or heavy lifting can force fat or bowel through the hole.  This is an effect of the hernia and not a cause of the hernia.  The bulge and the pain are effects of having a defect in the abdominal wall. 
  1. [40]
    There is a clear conflict of opinion between the two expert medical witnesses.
  1. [41]
    Dr Braun explained the difference of opinion in the following way:

Mr McLean-Williams: All right.  You appreciate, don’t you, Doctor, that the end of it, this case will largely fall to be determined on the opinion of yourself and Professor O'Rourke.  So it’s clear that we need to understand where your opinions differ?  

Dr Braun: Yeah.  My opinion differs in my – in – and it’s very clear in my mind that WorkCover has accepted the first event.  So if it was not an event then the WorkCover would not have accepted the case.  So you did accept the first case.  And after that it’s actually irrelevant.  The hernia repair itself is a provision for recurrence.  If a person, namely, Jason Taylor, was sitting at a desk, the recurrence, perhaps, would be of a diminished value.  But [indistinct] returned back to those, you know, heavy activities, or whatever he was doing, lifting hoses or whatever he was meant to do, the chances of occurrence increase.  And my opinion is strong in that regard that repetitive heavy lifting would exacerbate and provoke chance of recurrence.  That’s what I’m saying.[18]

  1. [42]
    Dr Braun goes on to state:

To summarise my view, I just say very briefly there was an event prior to the first hernia repair. He'd had a hernia repair. And after that WorkCover will be always liable for that hernia's site, regardless what people say or [indistinct] it's just absolutely ridiculous to even consider that the first event is covered and the other one is not covered.  I'm telling you in black and white.[19]

  1. [43]
    The Commission, as the tribunal of fact, can be assisted by expert medical opinion evidence, but must weigh and determine the probabilities as to the cause of an injury having regard to the totality of the evidence.[20]  The Commission's duty is to find ultimate facts and, so far as it is reasonably possible to do so, to look not merely at the expertise of the expert witness, but to examine the substance of the opinion expressed and (where experts differ) to apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted.[21]
  1. [44]
    The appellant relies heavily on the evidence of Dr Braun.  However, his evidence needs to be assessed in light of the view expressed by him regarding the acceptance by WorkCover of the initial claim for a hernia.  In that regard, he has misdirected himself as to the approach that an expert medical witness ought to take in providing an opinion.
  1. [45]
    The opinion of a particular medical expert witness is sought because of the expert's professional experience and expertise in a particular field relevant to the case.  As Martin J noted in Davidson v Blackwood:

"It is inevitable in cases such as this that expert witnesses will play an important, if not determinative, roles for both parties to a dispute.  The outer limits of these roles must, however, be marked out by the law of evidence, and, in particular, the ultimate issues rule, according to which an expert must not seek to substitute himself or herself for the tribunal of fact, or for the Court."[22]

  1. [46]
    When asked about the whether the appellant's employment was a significant factor Professor O'Rourke said:

Mr McLean-Williams: Doctor, can I ask you this:  is it your evidence that – that umbilical hernia can be multi-factorial in terms of its causes? 

Professor O'Rourke: Every hernia could be multi-factorial.

Mr McLean-Williams: All right.  And the constellation of possible causes in the specific case of Mr Taylor – now, we have to get away from generalities and talk specifically about Mr Taylor.  Of the various factors that have been posited as a possible factor, is employment one of them, and how significant might it be, because the test in the – in the statute that we have to resolve in these proceedings is whether has been a significant factor.  Was his employment a significant factor?  

Professor O'Rourke: I do not think so.[23]

  1. [47]
    The Appellant contends that the appellant's employment was a "significant contributing factor" to the injury because, in light of the evidence of Dr Braun, the manual work undertaken by the appellant at the dealership caused his injury or alternatively, aggravated a pre-existing injury.
  1. [48]
    Whilst s 32(3)(b) of the Act requires that an aggravation be treated as an injury, it does not remove the necessity of demonstrating that the injury (by way of aggravation) arose out of or in the course of the worker's employment and that the employment was a significant contributing factor to that injury.[24]
  1. [49]
    It was submitted that the appellant "…did not do anything else, other than as he described on the 29th of January, that would have caused the pain that he had.  That is, he described picking up the hose and feeling pain."[25] 
  1. [50]
    It must be remembered that employment needs to be a "real effective cause" of the injury and not merely the setting or background in which the injury occurs.[26]  As Keane JA in Newberry wrote the requirement 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."[27]
  1. [51]
    In the present context, "significant" means "important" and "of consequence".[28]
  1. [52]
    The evidence before the Commission shows that the appellant had a history of abdominal or epigastric pain.  By way of example on 19 September 2013 an ambulance was called to transport the appellant to Townsville Hospital for what was described a gastro-intestinal problem.  The medical records note pain in the upper abdominal area.  Again on 20 January 2014 another ambulance was called.  The case history describes the appellant suffering from lower back pain.  However, under “Case given”, his condition is described as abdominal pain.
  1. [53]
    The appellant contends that the activation of pain was due to the picking up of the hose on 29 January 2014.
  1. [54]
    Professor O'Rourke told the Commission that it was not possible to determine the exact cause of the appellant's abdominal pain. In cross-examination he said:

Ms Anderson: And you have not postulated an opinion about what caused the pain the Mr Taylor suffered when he picked up that hose?  

Professor O'Rourke: I think I postulated it could be, nearest bet, the many different causes, and he’d had many abdominal pains, some of which were never worked out, and it could be due to the fact that he had some torn scar tissue where the previous repair had – See, I don’t know.  I just don’t know for certain, of course.[29]

  1. [55]
    Later he goes on to state:

Ms Anderson: Okay.  Can we just talk about the pain again.  Jason Taylor’s evidence is he experienced pain in his abdomen, which was diagnosed as a hernia on two separate occasions.  One was in February 2013 and the second was in January 2014.  Is that pain on both occasions, in your view, a symptom of a hernia?  

Professor O'Rourke: Not necessarily, because that fellow also complains of chronic abdominal pain, which he attended the Townsville Hospital on many occasions, so well – could well have been or could not have – or been in relation to the chronic abdominal pain which he presented on many, the nature of which we don’t know.[30]

  1. [56]
    On balance, I prefer the evidence of Professor O'Rourke.

Conclusion

  1. [57]
    As with any appeal to the Commission against a decision of the Regulator, the nature of the appeal is by way of a hearing de novo.  To establish his claim, the appellant must satisfy the Commission, on the balance of probabilities, that his claim is one for acceptance.
  1. [58]
    In MacArthur v WorkCover Queensland Hall P wrote:

"The common law test of balance of probabilities is not satisfied by evidence which fails to do more than establish possibility.  See St George Club Ltd v Hines (1961-62) 35 ALJ 106 at 107 where the Court referred to Bonnington Castings Ltd v Wardlow [1956] AC 613 as authority for the following proposition:-

'In an action of law a plaintiff does not prove his case merely by showing that it was possible that his injury was caused by the defendant's default.'.

There is a clear, though in its application a difficult, distinction between reasonable deduction from evidence and mere conjecture, see Jones v Great Western Railway Co. (1930) 47 TLR 39 at 45 per Lord MacMillan.  See also Lord Wright's remarks in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169-170:-

'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.  In some cases the other facts can be inferred with as much practical certainty, as if they be actually observed.  In other cases the inference does not go beyond reasonable probability.  But if there are no other positive true facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.'.

It is perhaps particularly useful to refer to the observations of Jordan CJ in Carr v Baker (1936) SR (NSW) 301 at 306:-

'The existence of the fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show it is possible that it may exist, then its existence does not go beyond mere conjecture.  Conjecture may range from the barely possible to the quite possible.'.

What makes that quotation of particular significance is the finding of the Industrial Magistrate in this case that, although the appellant had not made out her case on the balance of probabilities, she had established that it was quite possible that the exposure to carcinogenic substances at the Ann Street building was the cause of the cancer and, subsequently, of the death.

The process of determining a matter on the balance of probabilities is neither a sterile exercise in mathematics nor a mechanical application of probabilities.  'The predominant position in Australian case law is that a balance of probabilities test requires a court to reach a level of actual persuasion.'  Seltsam Pty Ltd v McGuiness (2000) 48 NSWLR 262 at para 136 per Spigelman CJ and the authorities, monographs and articles there cited."[31]

  1. [59]
    It is the appellant's case that on or about 29 January 2014 he suffered an umbilical hernia at work.  The evidence, in my view, does not support such a contention.  First, there is no clear contemporaneous medical evidence to support a finding that the appellant suffered an umbilical hernia on 29 January 2014.  Indeed, the records of the Townsville Hospital note that the appellant was not definitively diagnosed with an umbilical hernia until March 2014. I do recognise that 29 January 2014 was the last date that the appellant worked, but there is insufficient evidence to establish that the appellant suffered an umbilical hernia on that date.
  1. [60]
    As noted in the chronology, the appellant was hospitalised on 13 March 2014.  It was during this period of hospitalisation that further investigations were ordered following consultation with Dr McCullum.  Following the CT scan performed on 23 April 2014, a small hernia containing omental fat was found.  It was described as a 'likely small umbilical hernia'.
  1. [61]
    The evidence before the Commission does not, in my mind, lead to the conclusion that there is a sufficient nexus between the appellant's work and his injury. I reach that conclusion notwithstanding the accepted connection between Mr Taylor’s first hernia and his work, and the possible connection between the first hernia and this second hernia. The second hernia, as a recurrence of the first, is discussed further in paragraph [64] below. As to whether the injury arose out of the appellant's employment, the authorities support the proposition that "arising out of" employment involves a causal or consequential relationship between the employment and the injury, but does not necessarily require a direct or proximate relationship.[32] The causal nexus between the appellant’s work and his second hernia is unclear given the evidence of Professor O'Rourke. 
  1. [62]
    Some of the other factors which mitigate against the acceptance of the appellant's evidence in relation to the alleged injury on 29 January 2014 include the fact that the contemporaneous note made by the appellant in his diary makes no reference to an injury at work, the QAS records for the same date do not refer to a work related injury, and the clinical records of the emergency department at Townsville Hospital do not indicate any sign of a bulge or lump, nor do they refer to a work-related accident.
  1. [63]
    The appellant's own evidence must be viewed with a degree of caution.  He was, as Counsel for the appellant properly noted, confused about what happened on 29 January 2014. The appellant was a poor historian and his evidence was inconsistent and contradictory.
  1. [64]
    Even if it is accepted that there was a work-related incident on 29 January 2014, the evidence, at most, suggests that the work performed by the appellant might have been a contributing factor but it cannot be determined to be a significant contributing factor.  This is particularly so having regard to the evidence of the medical specialists, both of whom suggest that obesity is a significant contributing factor to the reoccurrence of a hernia.
  1. [65]
    In Croning v Workers' Compensation Board of Queensland and Newberry v Suncorp Metway Insurance Ltd (referred to earlier in relation to the appellant's submissions) and Carmen v Q-COMP[33] where Hall P stated:

"Pleming v Workers' Compensation Board of Queensland[34]… does not decide that a worker afflicted by a degenerative back suffers an injury if the back becomes painful at work.  Neither does Pleming, op. cit., establish that a worker with a degenerative back suffers an 'injury' if the work is a cause of the onset or intensification of pain.  Pleming, op. cit., establishes that a worker with a degenerative back will suffer an injury where the back becomes painful or more painful and the employment is a significant cause of the onset or intensification of pain."

  1. [66]
    In Chattin v WorkCover Queensland,[35] Williams J endorsed the proposition that:

"The function of a court of law in a situation such as this is to determine whether, for whatever reason, it is more probable than not that there is a causal relationship between the accident and the plaintiff's post-accident condition."

  1. [67]
    Applying the proposition from Chattin creates difficulties for the appellant’s case. In order to find a causal relationship between an accident and the post-accident condition there must, of course, have been an accident. I am unable to find that there was, in fact, an “accident” on 29 January 2014 as the documentary evidence does not support such a finding. Indeed, the preponderance of the oral evidence is not supportive of the appellant’s case. More particularly, as noted elsewhere, the appellants own evidence must be view with caution. On a consideration of the totality of the evidence, I am not satisfied that the appellant has discharged the onus of proving, on the balance of probabilities, that the respondent's decision should be set aside and that the appellant's claim is one for acceptance.

Orders

  1. [68]
    I make the following orders:

 1. Appeal dismissed;

 2. The decision of the respondent dated 9 March 2015 is affirmed; and

 3. The appellant is to pay the respondent's costs of and incidental to this appeal to be agreed, or failing agreement, to be the subject of a further application to the Commission.

Footnotes

[1] T1-5, L21-22.

[2] T1-23, L29.

[3] T1-8, L46.

[4] T1-20, L46-47.

[5] T1-10, L6.

[6] T1-10, L15-16.

[7] T1-10, L46-47.

[8] Ex. 7.

[9] T1-37, Ll 4.

[10] T1-39, L13.

[11] T1-58, L25.

[12] T1-14, L1-22; Ex. 1.

[13] Ex. 8.

[14] T1-58, L25.

[15] Ex. 4.

[16] Ex. 5.

[17] T1-29, L19-36.

[18] T1-30, L10-21.

[19] T1-31, L20-24.

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

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

[22] Davidson v Blackwood [2014] ICQ 008, [17].

[23] T1-49, L7-12.

[24] Qantas Airways Ltd v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 082, []; Luxton v Q-Comp (2008) 190 QGIG 4; Q-Comp v Green (2008) 189 QGIG 747; Poulsen v Q-COMP (C/2011/29).

[25] T1-69, L6.

[26] Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100, 101.

[27] Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519.

[28] Qantas Airways Ltd AND Q-COMP and Michelle Blanch (2009) 191 QGIG 115, 119. 

[29] T1-46, L21-26.

[30] T1-45, L31-38.

[31] MacArthur v WorkCover Queensland (2001) 167 QGIG 100, 101.

[32] Lackey v WorkCover Queensland [2000] 165 QGIG 22.

[33] Carmen v Q-COMP (2007) 186 QGIG 512, 513.

[34] Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181.

[35] Chattin v WorkCover Queensland (1999) 161 QGIG 531, 532.

Close

Editorial Notes

  • Published Case Name:

    Taylor v Workers' Compensation Regulator

  • Shortened Case Name:

    Taylor v Workers' Compensation Regulator

  • MNC:

    [2017] QIRC 6

  • Court:

    QIRC

  • Judge(s):

    Member Deputy President O'Connor

  • Date:

    01 Mar 2017

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
2 citations
Jump To
Cite 1 - (1940) 64 CLR 538
Cite 2 - (1940) 64 CLR 538
Bonnington Castings Ltd v Wardlow (1956) AC 613
1 citation
Jump To
Cite 1 - (1956) AC 613
Carman v Q-Comp (2007) 186 QGIG 512
2 citations
Jump To
Cite 1 - (2007) 186 QGIG 512
Cite 2 - (2007) 186 QGIG 512
Carr v Baker (1936) SR NSW 301
1 citation
Jump To
Cite 1 - (1936) SR NSW 301
Caswell v Powell Duffryn Associated Collieries Ltd (1940) AC 152
1 citation
Jump To
Cite 1 - (1940) AC 152
Chattin v WorkCover Queensland (1999) 161 QGIG 531
3 citations
Jump To
Cite 1 - (1999) 161 QGIG 531
Cite 2 - (1999) 161 QGIG 531
Cite 3 - (1999) 161 QGIG 531
Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100
2 citations
Jump To
Cite 1 - (1997) 156 QGIG 100
Cite 2 - (1997) 156 QGIG 100
Davidson v Blackwood [2014] ICQ 8
2 citations
Jump To
Cite 1 - [2014] ICQ 8
Cite 2 - [2014] ICQ 8
Holtman v Sampson [1985] 2 Qd R 472
2 citations
Jump To
Cite 1 - [1985] 2 Qd R 472
Cite 2 - [1985] 2 Qd R 472
Jones v Great Western Railway Co. (1930) 47 TLR 39
1 citation
Jump To
Cite 1 - (1930) 47 TLR 39
Lackey v WorkCover Queensland (2000) 165 QGIG 22
2 citations
Jump To
Cite 1 - (2000) 165 QGIG 22
Cite 2 - (2000) 165 QGIG 22
Luxton v Q-Comp (2008) 190 QGIG 4
2 citations
Jump To
Cite 1 - (2008) 190 QGIG 4
Cite 2 - (2008) 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
Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181
2 citations
Jump To
Cite 1 - (1996) 152 QGIG 1181
Cite 2 - (1996) 152 QGIG 1181
Q-COMP v Green (2008) 189 QGIG 747
2 citations
Jump To
Cite 1 - (2008) 189 QGIG 747
Cite 2 - (2008) 189 QGIG 747
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
Qantas Airways Ltd v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 82
2 citations
Jump To
Cite 1 - [2014] QIRC 82
Cite 2 - [2014] QIRC 82
Ramsay v Watson (1961) 108 CLR 642
2 citations
Jump To
Cite 1 - (1961) 108 CLR 642
Cite 2 - (1961) 108 CLR 642
Seltsam Pty Ltd v McGuiness (2000) 48 NSWLR 262
1 citation
Jump To
Cite 1 - (2000) 48 NSWLR 262
St George Club Ltd v Hines (1962) 35 ALJ 106
1 citation
Jump To
Cite 1 - (1962) 35 ALJ 106

Cases Citing

Case NameFull CitationFrequency
Austin v Workers' Compensation Regulator [2025] QIRC 1102 citations
Ball v Workers' Compensation Regulator [2020] QIRC 582 citations
Guandalini v Workers' Compensation Regulator [2025] QIRC 1712 citations
J J Richards & Sons Pty Ltd v Workers' Compensation Regulator [2019] QIRC 981 citation
Katsambis v Workers' Compensation Regulator [2020] QIRC 1072 citations
Scott as Litigation Guardian for Lomax v Workers' Compensation Regulator [2021] QIRC 2732 citations
Smith v Workers' Compensation Regulator [2024] QIRC 2233 citations
1

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