Hoby v Workers' Compensation Regulator
[2018] QIRC 21
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- Unreported Judgment
- Hoby v Workers' Compensation Regulator[2018] QIRC 21
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Hoby v Workers' Compensation Regulator[2018] QIRC 21
Hoby v Workers' Compensation Regulator[2018] QIRC 21
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Hoby v Workers' Compensation Regulator [2018] QIRC 021 |
PARTIES: | Hoby, Susan Kaori (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO: | WC/2017/39 |
PROCEEDING: | Appeal against decision of the Workers' Compensation Regulator |
DELIVERED ON: | 2 March 2018 |
HEARING DATES: | 15 and 16 November 2017 (Hearing) 5 December 2017 (Hearing) 29 January 2018 (Appellant Submissions) 29 January 2018 (Regulator Submissions) |
HEARD AT: | Brisbane |
MEMBER: | Deputy President Swan |
ORDERS |
|
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Workers' Compensation Regulator - Appellant incurred a physical injury - Appellant worked in the kitchen of a nursing care facility - Appellant often worked alone and was responsible for the workings of the kitchen from 1.15 p.m. to 7.30 p.m. - Appellant undertook a range of repetitive and heavy duties and incurred pain in her right shoulder – Appellant's claim is that shoulder pain continued from 2014 onwards and was largely attributed to her work on and around the Bain Marie in the kitchen - No medical report of any injury provided until mid 2016 - Orthopaedic medical specialist's opinions differed as to causation - Determined that "injury" was caused by "an aggravation of a condition" which could best be described as a lack of conditioning and reserve in the shoulder - Appeal dismissed. |
CASES: | Workers' Compensation and Rehabilitation Act 2003 Cronin v Workers' Compensation Board of Queensland (1997) 156 QGIG 100 Carman v Q-COMP (2007) 186 QGIG 512 Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48 Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181 |
APPEARANCES: | Mr P.B Rashleigh of Counsel, instructed by Ms M. King of Shine Lawyers for the Appellant. Ms H. Blattman of Counsel, directly instructed by Mr G. Clark of the Workers' Compensation Regulator, the Respondent. |
Decision
- [1]Ms Susan Kaori Hoby (the Appellant), made a Workers' Compensation claim on 21 June 2016 for an injury described as "right shoulder bursitis", caused in the course of her employment as a kitchen hand at the Rosalie Nursing Centre (the Centre) operated by Alzheimer's Association Queensland. The injury is claimed to have occurred on 1 February 2014 but had continued to become worse over time. This date had been recorded on the Appellant's two Queensland Workers' Compensation Medical Certificates, by Dr Wilson (General Practitioner) which had been issued in June 2016. [Exhibits 2 and 3]
- [2]The Appellant, in her Statement of Facts and Contentions, states that prior to mid to late 2015, she had not suffered any injury or significant or regular symptoms in her right shoulder. However, around mid to late 2015, she began suffering symptoms comprising of pain, restricted movement and "catching" (impingement) of her right shoulder. She said that the pain she suffered related to her work at and around the Bain Marie in the kitchen.
- [3]The Appellant says that she advised the Director of Nursing Care at the Centre of her injury on 7 December 2015.
- [4]It is accepted that the Appellant is a "worker" for the purposes of s 11 of the Workers' Compensation and Rehabilitation Act 2003 (the Act).
- [5]An injury under s 32(1) of the Act is a personal injury arising out of or in the course of employment and, in the particular circumstances of this case, the employment is a significant contributing factor to the injury. The "significant contributing factor" must be a real or effective cause of the injury, see Cronin v Workers' Compensation Board of Queensland[1].
- [6]The Appellant bears the onus of proof on the balance of probabilities.
Witnesses
- [7]Witnesses for the Appellant were:
- Susan Hoby, the Appellant;
- Krsitina Haynes, Co-worker at the Centre;
- Marion Gill, Director of Care at the Centre; and
- Dr Mark Shaw, Orthopedic Surgeon
- [8]Witness for the Regulator:
- Dr Gregory Nutting, Orthopedic Surgeon
Type of work undertaken by the Appellant
- [9]The Appellant commenced work at the Centre in or about August 2009 and she initially worked three days per week, but eventually increased that to four days per week. Her roster, the "dinner shift" was from 1.15 p.m. to 7.30 p.m. and the Appellant worked this shift alone.
- [10]The type work included:
"5. From 2011 the Appellant's regular daily employment tasks required her relevantly to:
a. Serve approximately 40 meals per day from the Bain Marie requiring her to lift her right arm to should height and reach into the Bain Marie to retrieve food items approximately 150 times per shift.
b. Reach above head height to retrieve glassware, crockery and other items from overhead cupboards.
c. Refill the water in the Bain Marie by way of filling, carrying, lifting and pouring 3 buckets of water into the Bain Marie ". [Appellant's Statement of Facts and Contentions]
- [11]As the Appellant worked as a kitchen hand, she also undertook normal kitchen duties.
The Appellant's description of the mechanism associated with performing these duties
- [12]Prior to 2011, dinner was served from an oven, but after that date a wet Bain Marie was used to keep the food warm. This was positioned on top of the kitchen benches.
- [13]The food was taken out of the oven and then placed in the Bain Marie. The lids were taken off the food and the Appellant was required to scoop the different foods out of the Bain Marie onto a plate and this could involve up to 5 scoops per plate. The Appellant could serve up to 40 residents at a time.
- [14]It was undisputed that the Appellant served from the Bain Marie at or just below shoulder height. Her arm was in the abducted position.
- [15]The Appellant said that she had to reach the back of the Bain Marie to retrieve food and, because of the steam from the Bain Marie , she was required to keep her arms at some distance from the Bain Marie otherwise she could be burned. Also, on occasions, trays were stacked upon other trays on the Bain Marie.
- [16]The Appellant described the mechanism of the work performed as follows:
"… so because it was really hot bubbling water on the inside we had to be careful leaning over, which meant we had to sort of reach quite high up with our hands and so the trays that were closest to you we had to scoop and put the scoop on the plate… The ones at the back, you had to reach quite carefully so you didn't get burnt by the steam". [T1-14]
- [17]As part of her duties the Appellant also served afternoon tea and drinks where retrieval of trays from overhead shelves was required. This involved reaching over the bench. She was required to stretch a fair way and she was also required to gather plastic cups for all the drinks which were stored in a difficult high place. This activity also required stretching on the part of the Appellant.
- [18]The cleaning of the Bain Marie was another job undertaken by the Appellant. The water, being removed from it was fed into a bucket which the Appellant then had to lift and empty into the sink. The water from the Bain Marie filled three and a-half buckets. The bucket was heavy and when not filled with water carried about eight kilograms of washing powder.
- [19]The mechanism for tipping the liquid into the sink required the Appellant placing her left hand on the top of the bucket and the right hand on the bottom.
- [20]The Appellant said that she experienced aches and pains in her right shoulder in or around 2014. The pain usually occurred when she was reaching for something from a higher shelf. The pain was more pronounced at the end of her shift and it was described as a throbbing pain and one sometimes accompanied by a pinched feeling. Heavy lifting also exacerbated this pain. An example of this involved lifting the bucket while extending her arm across the Bain Marie. The repetitive motions felt when she was extending her arm to scoop food caused her pain which lasted for a couple of days.
- [21]The Appellant had initially experienced pain in her neck and her shoulder but said that the neck pain had been resolved over time. However, it was her right shoulder pain which had continued. Over time the pain got worse and as she felt the pain in her shoulders, she did not initially think it was anything serious. The pain improved on the Appellant's days off work.
- [22]By this time, the Appellant had reduced her working hours from four days to two days per week. After working for two days, the pain was felt in her shoulder and this would continue for another two days.
- [23]By December 2015, the wet Bain Marie was replaced with a dry Bain Marie.
- [24]Ms Haynes commenced work at the Centre in 2011 and had the title of "head cook". Her shift was from 6.00 a.m. until 2.00 p.m.
- [25]Ms Haynes had found difficulty working in what she described as a small kitchen because many of the items needed were up on high shelves.
- [26]Ms Haynes served breakfast and lunch from the Bain Marie. She explained that before the new Bain Marie was introduced in December 2015, she had to stand on her "tippy toes" because the old Bain Marie was positioned on the bench at chest height and she chose to stand on her toes "so that I wasn't exhausting my shoulders too much".
- [27]While reporting her problems to the Director of the Centre, she was unaware of whether those concerns were passed on to the Centre's head office.
- [28]She recalled the Appellant complaining to her about her sore shoulder prior to the Bain Marie changing in December 2015.
- [29]Ms Gill was called to give evidence by the Appellant. Ms Gill had formerly been the Director of Care at the Centre. She commenced at the Centre in or around 2012. She understood that the Appellant visited a Physiotherapist sometimes every two weeks in or around 2015. Her evidence was that the pain complained of by the Appellant, had occurred before the Bain Marie was changed.
- [30]It was confirmed that the Appellant worked primarily by herself in the evenings. Ms Gill said that one had to "reach a long way up" to get the food out of the Bain Marie. She stated that this involved "quite a lot of repetitive shoulder movement".
- [31]Ms Gill also confirmed the mechanism involved in hooking a hose from the Bain Marie, draining out the hot water and then carrying the bucket to tip the water out.
- [32]When Ms Gill advised Management of the Centre about these concerns, Management advised that those problems would be "engineered out with the new kitchen".
- [33]Ms Gill referred to a risk assessment of the kitchen area being undertaken after which a new Bain Marie was acquired and this was built into the bench. This occurred in December 2015.
- [34]Ms Gill believed that the Appellant had begun treating her shoulder herself, however she understood that this had not improved her situation. She was aware that the Appellant was seeing a Doctor and a Physiotherapist and around that time and Ms Gill instituted some measures to assist the Appellant perform her duties. Examples of this included having other employees lift cups and saucers down to bench height for the Appellant. The focus, she said, was on limiting the duties which might aggravate the Appellant's shoulders. [T1-83]
- [35]There was no Cross-Examination of Ms Gill by the Regulator.
The Regulator's Submissions
- [36]The Regulator submits that evidence given by the Appellant concerning her neck pain should be disregarded as she had confirmed under Cross-Examination that her neck pain was a separate issue to her shoulder pain which was the subject of her claim. That assertion is accepted as correctly reflecting the nature of the Appellant's evidence.
- [37]While the Regulator accepts that the Appellant is suffering from bursitis and impingement in her right shoulder, it does not accept that she was suffering from this condition prior to May 2016. It says that this was evident from the fact that she was unable to provide any medical evidence to that effect. The Appellant had not complained of the seriousness of her shoulder pain until May 2016. At that time, the Appellant attended her Physiotherapist and underwent an ultrasound which suggested bursitis.
- [38]Inconsistencies noted by the Regulator in the Appellant's reporting of her shoulder pain was as follows:
- The Appellant's Evidence In-Chief was that her shoulder pain commenced in 2014 [T1-26]. In Cross-Examination, however, her evidence was that it was not until October 2015 that she experienced pain in her shoulder. [T1-43]
- These factors are consistent with the Appellant not mentioning her shoulder pain to Dr Tattersall (General Practitioner) in December 2015 or any other General Practitioner prior to May 2016.
- Further, the Appellant had not mentioned her shoulder condition during an On-site Workplace Manual Handling Competency Review which was performed by a Physiotherapist on 16 January 2014 and 24 February 2015 at the Centre.
- The Appellant had not mentioned her shoulder problems to Ms Gill until December 2015. If there was shoulder pain experienced by the Appellant in December 2015, the Appellants' evidence was that it was serious at that stage. However, there was no evidence to show the extent of any damage at that time.
- Dr Shaw's assessment of the Appellant's injury was dependent upon the history given to him by the Appellant. The Appellant first saw Dr Shaw (Orthopaedic Surgeon) on 23 May 2017.
- Dr Shaw referred to an ultrasound of the Appellant on 20 November 2015 which revealed "tendinopathic changes of the supraspinatus tendon" but not bursitis or impingement.
- Relative to Ms Hayes' evidence that the Appellant had said that her work was difficult because it was high [T1-76], the Regulator says that Ms Hayes had not made it clear when she had those discussions with the Appellant.
- The Appellant was aware that another work colleague had instigated a successful WorkCover claim around that time, but she decided that she did not want to make an incident report or a WorkCover claim because she did not like to cause any trouble with her employment. The Regulator contends that this excuse is not plausible because as a consequence of the colleague who did make a WorkCover claim, the employer had replaced the old Bain Marie in December 2015.
- [39]Based upon the above, the Regulator said the Commission could not be satisfied that the Appellant's bursitis and impingement had commenced prior to the Bain Marie being changed in December 2015.
Initial Medical Contact
- [40]The Regulator said that the Appellant had not been able to identify any particular occasion of the onset or worsening of pain or symptoms while at work. It states that there is no direct temporal connection asserted or evidenced between her work duties and her injury.
- [41]
"Here a temporal connection between the pain and the work can only be found on the evidence of Ms Carman. There is a competing explanation/cause; viz. the natural progression of the degenerative back condition. If Ms Carman's evidence of heavy work be rejected, even if it be assumed that her back became painful at or after work, there is no basis for a finding that the work was a "significant contributing factor" to the pain rather than an occasion for its expression".
- [42]On 31 May 2016 the Appellant visited Dr Wilson (General Practitioner) with regard to her shoulder problems. She was issued with a WorkCover Medical Certificate on both 3 June 2016 and 17 June 2016.
- [43]Whilst at work, the Appellant completed an Incident Report form on 4 June 2016. She explained in that Report that she had first advised Ms Gill of her shoulder problem in December 2015. This was confirmed by Ms Gill.
- [44]The Regulator states that the lack of any evidence produced by the Appellant from treating Doctors does not support the view that the Appellant's right shoulder bursitis or impingement arose out of her employment, to the extent that it was a significant contributing factor to her injury.
- [45]The Regulator referred to the Appellant's "inconsistent evidence" concerning the onset of her shoulder pain saying that it occurred from 2014, but in Cross-Examination saying that she had not noticed it until October 2015 and that the prior pain had related to neck pain. (Paragraphs 6 and 7 of the Appellant's Statement of Facts and Contentions confirm that point.)
- [46]This point was also confirmed by the Appellant's evidence that prior to the Bain Marie being replaced in December 2015, she suffered from neck pain for which she had been seeing a Physiotherapist. This was consistent with the fact that the Appellant had not reported her shoulder problems with her employer until December 2015.
Medical Evidence
- [47]Two Orthopedic Medical Specialists were called to give evidence. Dr Shaw was called by the Appellant and Dr Nutting by the Regulator.
- [48]Dr Shaw's Report of 23 May 2017 [Exhibit 15] records the history given to him by the Appellant. This included the Appellant advising that over a period of time, in 2014, she had developed right shoulder subacromial bursitis and impingement as a result of the repetitive type of required in the performance of her job; the Appellant's hope that her pain would settle, but that this didn't occur; that she had experienced neck pain which settled over time; an account of her visits to a Physiotherapist; her reduced working hours and how the new Bain Marie in the kitchen had made her work easier when serving meals.
- [49]The Appellant had advised Dr Shaw that at the time of the onset of her shoulder pain she was also suffering neck pain. She said that the neck pain had ceased, but that her shoulder pain had continued to worsen. Dr Shaw noted that there were no pre-existing injuries relevant to the right shoulder.
- [50]Dr Shaw identified her current symptoms as a continuation of right shoulder pain which was intermittent but present on most days. The movement which brings on pain for her is undertaking activities with her right arm away from the side and out in the front and particularly over shoulder height. The Appellant, consequently, refrains from lifting her right arm overhead and reaching behind her.
- [51]The Appellant advised that she lived in a house with her husband and two younger boys. She avoided overhead and low cleaning.
- [52]An ultrasound of the Appellant's right shoulder which occurred on 2 September 2016 reported "there is bursitis with impingement".
- [53]Concerning the nature and extent of the Appellant's injury, by his report, Dr Shaw stated:
"Over a period of time, in 2014, Ms Hoby developed right shoulder subacromial bursitis and impingement as a result of repetitive right arm duties away from the side. These duties included reaching to overhead shelving for cups and saucers, repeated serving from a Bain Marie at shoulder height and reaching forwards with repetitive lifting, while serving and retrieving trays from the server window which was positioned at around shoulder height". [Exhibit 15, page 5]
- [54]In Cross-Examination, Dr Shaw added further:
"The work activity that worried me the most was actually serving from the Bain Marie because that involved the shoulders away from the side in the abductors, rather than the forward position. That was probably the activity that concerned me the most with regards to contributing to her shoulder pain". [T2-6]
- [55]Dr Shaw stated that the diagnosis of bursitis and impingement is a clinical diagnosis which is "made on history, examination, and then we're looking for confirmation with investigations, or excluding other pathologies which can sometimes mimic that condition". [T2-11]
- [56]Dr Shaw's prognosis was "ongoing right shoulder impingement exacerbated by right arm activities away from the side" [Exhibit 15, page 6]. He stated that the Appellant "would benefit from finding employment in other fields where repetitive abduction and lifting or retrieving items above shoulder height is minimised". [Exhibit 15, page 7]
- [57]Dr Shaw's evidence under Cross-Examination was that the Bain Marie, if removed in December 2015, would not have been a cause of the Appellant's bursitis and impingement after that removal. In re-examination, Dr Shaw said that if the Bain Marie had been removed and the Appellant's other work activities had continued, then it was likely that those activities together with the old Bain Marie were causative of the Appellant's injury.
- [58]The Regulator said that the only activities described to Dr Shaw by the Appellant after December 2015, when the new Bain Marie was installed, were repeatedly getting trays of cups and bowls from overhead shelving. The Appellant's evidence however was that she only got the trays down for afternoon tea and dinner and put them back when finished. When advised that the evidence was that the shelving for these items was not overhead, Dr Shaw concurred that it made it less likely to have been causative of her pain. It was clear that if the Appellant did have to respond to residents requiring drinks outside of meal times, she was not required to lift a tray as such, but rather a single cup.
- [59]Dr Shaw agreed that the AMA Guides to Evaluation of Disease and Injury Causation, stated that "the mere carrying out of activity above shoulder height is not sufficient to cause shoulder pathology". Dr Shaw had also been under the impression that "serving cups, plates and trays at shoulder height through a servery window was a different concept from serving at bench height and not shoulder height". Dr Shaw agreed that it was less likely to have been causative of the Appellant's injury if in fact the serving window was at or just below waist height. [T2-10]
- [60]The Regulator said that the claim that the Appellant had to repeatedly complete chores which required her reaching for items (e.g. reaching for cups) was not factually correct. The Appellant reached for and replaced those items only at afternoon and dinner time.
- [61]Dr Shaw stated that it was a combination of the Appellant's history, together with his clinical examination of her, which led him to accept that it was the Appellant's work related activities which had caused her bursitis. Overall, his opinion was that:
"Over a period of time in 2014, Ms Susan Hoby developed right shoulder bursitis and impingement.
The injury developed largely as a result of work duties as a kitchen hand in a nursing home. These duties involve repetitive right arm abduction and overhead activities with the right arm." [Exhibit 15, pages 8/9]
- [62]Consequently, Dr Shaw believed that the Appellant's work duties in her occupation as a kitchen hand at the Centre contributed significantly to the development of right shoulder subacromial bursitis and impingement.
- [63]Dr Nutting provided four Reports concerning the Appellant.
Report of 27 July 2016 [Exhibit 16A]
- [64]Dr Nutting reported on three investigations which had been instigated by a General Practitioner, Dr Tattersall and two other by Physiotherapist, Mr Nguyen. Dr Nutting's view was that "these investigations have ruled out major pathology under the current circumstances".
- [65]In commenting upon the Appellant's work, Dr Nutting said:
"It would seem that the effects of whatever activity has been undertaken is simply that of overuse and it would seem logical that the work with the Bain Marie is provocative for the condition, as well as lifting above head height, but I would suggest that neither of these activities has specifically caused an injury… I think therefore her claim is one of aggravation of a condition which could be best be addressed as lack of conditioning and reserve in the shoulder."
Report of 16 January 2017 [Exhibit 16B]
- [66]In this Report, Dr Nutting said that the Appellant had not recalled any attendance upon Physiotherapists in her earlier visit but that the Regulator had advised that they had viewed Physiotherapy notes indicating that the Appellant had suffered from shoulder pain from at least March 2013. However, there were no reports provided from a Physiotherapist who had seen the Appellant in 2013.
- [67]With that information, Dr Nutting stated:
"This conveys the impression that the right shoulder discomfort is one of gradual attrition over time rather than a specific injury and that this, therefore, goes to my attempted explanation of her symptomology in attributing production of symptoms to simply extremes of activity. In other words, she has an underlying propensity to develop discomfort which is realized when certain conditions are met and that this does not constitute an injury unless fatigue and overuse are generally documented as 'injuries' and I would, again, refer you to the 'AMA Guides to Evaluation of Disease and Injury Causation, Second Edition' which states categorically that the mere carrying out of activity above shoulder height is not sufficient to cause shoulder pathology in peer reviewed literature."
Report 23 August 2017 [Exhibit 16C]
- [68]In this Report, in response to further questions posed by the Regulator, Dr Nutting stated:
"…whilst I would accept that this lady has pain when she does particular activities, this simply brings her underlying lack of fitness or reserve to light rather than causes an injury because it is now over three years since the supposedly initiating event and there is still no measureable deficit in my opinion …
I think that it is appropriate that Mrs Hoby work more specifically on her capsular stretching and scapular stabilisation so that these activities are more within her capabilities because even if she is carrying out work as a teacher's aide, it is inherent that her posture and muscle condition and tone will tend to cause her the same aches and pains as complained of in people who are not carrying out more physical activity.
…
In summary, none of the provided material has altered my impression that this is simply a case of capsular and muscular tightness and lack of strength and healthy posture and biomechanics of the shoulder girdle. Symptoms are produced whenever she is subject to the appropriate stimulus…".
Report 6 November 2017 [Exhibit 16D]
- [69]Upon being provided with further information (e.g. Risk Assessment Report; Workers' outline of evidence; physiotherapy records and payroll records), Dr Nutting acknowledged that the height of the Bain Marie and the degree of repetition of activity were important causes of the Appellant's discomfort but that he could take the matter no further.
- [70]Dr Joseph (Interventional Radiologist) had undertaken an ultrasound on the Appellant on 20 November 2015 and his report showed "mild tendinopathic changes in the supraspinatus tendon which is quite common for anyone who has reached skeletal maturity". Dr Nutting said that the important message accompanying this investigation is the fact that the Radiologist specifically states "that no impingement is demonstrated on dynamic examination and that there is no evidence of bursitis with no other significant finding and yet we are given the history that the painful process has persisted to the degree that Mrs Hoby has been working less".
- [71]Dr Nutting reiterated that the Appellant's pain was an intermittent problem which was not sustained and consequently there had been no evidence of lasting permanent pathology.
- [72]In expanding upon that view, Dr Nutting concluded:
"I would suggest that this is a problem which has developed over time and is more related to the claimant's general conditioning, muscle tone, fatigue and capsular tightness and other factors which had been implicated. This emphasises that the genesis of her concerns is multifactorial and as I stated in the initial report, is unlikely to be specifically caused by reaching overhead or elevating the elbow and shoulder in addressing the Bain Marie and serving techniques which more likely simply drew her attention to the mechanical problem simply because each of those activities required a more complex range of motion than was undertaken at other times."
- [73]Dr Nutting reaffirmed his view that he was unable to see any evidence that there had been an injury per se to the Appellant but rather that the Appellant, under certain circumstances, was suffering from a condition that caused her discomfort. [T3-5]
- [74]When questioned about the injury the Appellant said she had sustained, Dr Nutting stated:
"So injury, I think, should be reserved for something that you can show an appreciable change, and, ideally, at a particular time in response to a particular activity, or action, of misadventure, for that matter, that you can identify that there's something that has changed the physiology and the pathophysiology of that particular organ at that time." [T3-5]
- [75]Describing bursitis as a "transient phenomenon" Dr Nutting said that it would occur almost as an immediate response to overuse and the symptoms would be felt the following day rather than six months' time for example. Dr Nutting said that the type of work being performed by the Appellant was intermittent and not of the type that involved a sustained movement i.e. prolonged use of the arm.
Conclusion
Arising out of the Course of Employment
- [76]In Nunan v Cockatoo Docks & Engineering Co Ltd [[1941] 41 SR (NSW) 119, Jordan CJ with whom Roper J and Nicholson J agreed, cited with approval at 122, Lord Wright in Dover Navigation Co v Craig:
"What arises "in the course" of the employment is to be distinguished from what "arises out of the employment". The former words relate to time conditioned by reference to the man's service, the latter to causality.
- [77]The Regulator submits that the Appellant has been unable to point to a specific period when the onset or worsening of her pain occurred. No temporal connection has been asserted or evidenced. It adds that there is no evidence from treating doctors up to 2016 to support the claim that the Appellant's right shoulder bursitis or impingement arose out of her employment. This assessment is factually correct.
Significant Contributing Factor
- [78]Even if it was determined that the Appellant had suffered an injury arising out of her employment to which her employment was a contributing factor, it must be shown that the contribution was "significant".
- [79]
"[42] Further, there is no warrant in the language of s 32 of the WCRA for reading the words 'if the employment is a significant contributing factor to the injury' as lessening the stringency of the requirement that the injury 'arise out of the employment', as was suggested in the course of argument on the appeal. It is clear, as a matter of language, that the words 'if the employment is a significant contributing factor to the injury' are intended to be a requirement of connection between employment and injury additional to each of the requirements that the injury occur in the course of employment or arising out of the employment. It cannot, in my respectful opinion, sensibly be read as lessening the stringency of the latter or increasing the stringency of the former."
- [80]I have accepted Dr Nutting's opinion that the prime cause of the Appellant's injury is "her lack of conditioning and reserve and problem with her fine tuning" and "mechanical aberration in the shoulder, rather than her employment.
- [81]Carman v Q-COMP[4] and Pleming v Workers' Compensation Board of Queensland[5] are cases where it has been established that while the claimants were successful in establishing that an underlying or pre-existing condition had been aggravated, they both failed to establish that their employment was a significant contributing factor to the aggravation.
- [82]In Pleming (ibid), de Jersey P considered the fact of a worker's degenerative back condition which had been aggravated by his work. De Jersey P stated that "bending at work likely produced related pain which would otherwise not have been experienced". While a conclusion could be reached that showed that employment contributed to the aggravation, the other factor to be considered was the degenerative condition itself. In that case, the original decision maker had found that the employment was no more than an irritant" and should not be elevated to the level of a contributing factor.
- [83]In this matter there is a competing cause and that is the Appellant's underlying aberration in the shoulder. The Regulator's submission that the Commission should accept Dr Nutting's opinion, that the work activities in relation to causation of an injury were of a type as described in Carman and Pleming (ibid), is accepted.
- [84]The Appeal is dismissed.
- [85]The Appellant is to pay the Regulator's costs of, and incidental to the Appeal.
- [86]Order accordingly.