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Rolph v Workers' Compensation Regulator[2018] QIRC 6

Rolph v Workers' Compensation Regulator[2018] QIRC 6

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Rolph v Workers' Compensation Regulator [2018] QIRC 006

PARTIES: 

Rolph, Peter

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2016/19

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

18 January 2018

HEARING DATES:

7 and 8 December 2017

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Thompson

ORDERS:

  1. The appeal is upheld.
  2. The decision of the Regulator of 23 December 2015 to confirm the decision of WorkCover to reject the appellant's notice of claim for damages is set aside with the claim being one for acceptance.
  3. The Regulator is to pay the appellant'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 – Decision of Workers' Compensation Regulator – Appellant bears onus of proof – Standard of proof – Balance of probabilities – Witness evidence – Appellant was a "worker" – Appellant sustained a personal injury – Personal injury arose out of or in the course of employment – Employment was a significant contributing factor to the injury – Decision of the Regulator is set aside – Appeal upheld – Regulator is to pay appellant's costs of and incidental to this appeal.

CASES:

Workers' Compensation and Rehabilitation Act 2003 s 11, s 32, s 258, s 548, s 549, s 550

Godwin v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 206

APPEARANCES:

Mr R. Oliver, Counsel instructed by Mr M. O'Connor of O'Connor Ruddy & Garrett for the Appellant.

Mr S. Gray, Counsel directly instructed by the Workers' Compensation Regulator, the Respondent.

Decision

  1. [1]
    A notice of appeal was lodged with the Industrial Registrar on 22 January 2016 by Peter Rolph (Rolph) pursuant to ss 548A(1) and 549 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Workers' Compensation Regulator (the Regulator) dated 23 December 2015. 
  2. [2]
    The decision of the Regulator was to confirm the decision of WorkCover to reject Rolph's notice of claim for damages pursuant to s 32 of the Act.
  3. [3]
    The notice of appeal sought the following orders:
  • the Regulator's decision (dated 23 December 2015) be set aside;
  • that Rolph had sustained a physical injury within the meaning of s 32 of the Act, being a lumbar spine injury; and
  • the Regulator pay Rolph's costs of and incidental to the appeal.
  1. [4]
    The notice of appeal identified at Schedule 1 the following grounds of appeal said to be factual and supported by medical evidence:
  • Rolph suffered a personal injury on 8 December 2011;
  • Rolph continues to suffer from the personal injury sustained on 8 December 2011;
  • the personal injury from which Rolph continues to suffer arose out of or in the course of his employment; and
  • employment was a significant contributing factor to the injury.
  1. [5]
    Further at Schedule 2 of the notice of appeal the facts relied upon were set out as follows:

"1. The Appellant [Rolph] in performing the duties of his employment as an apprentice arborist, was undertaking work for his employer.

  1. In undertaking the duties of his employment on Thursday 8 December 2011, the Appellant [Rolph] was obliged to lift a section of felled tree weighing approximately 30 kilograms ('the lift').
  1. The Appellant [Rolph] felt an immediate sharp pain in his lower back.
  1. Despite the pain, the Appellant [Rolph] continued to work for the remainder of the day before reporting the incident to his employer, Darryl Bourke, at the conclusion of his work day.
  1. In the conversation with Mr Bourke, the Appellant [Rolph] was advised that the employer would send him to a chiropractor with expenses covered by the employer.
  1. The Appellant [Rolph] attended upon Mr David Leembruggen on 8 December 2011.
  1. The Appellant [Rolph] returned to work after the incident performing light duties in the office for approximately one week.
  1. On 19 October 2012, the Appellant [Rolph] had x-rays of his lumbar spine.
  1. According to the Reports of Dr Gerard Kilian, the Appellant [Rolph] sustained an injury to his lumber spine."

Relevant Legislation

  1. [6]
    The Legislation pertinent to this appeal are the provisions of the Act that were in force at the time of the incident said to have contributed to Rolph's personal injury alleged to have been sustained on 8 December 2011:

"258 Access to damages if claimant has not lodged application for compensation

  1. (1)
    The claimant may seek damages for the injury only if the insurer -
  1. (a)
    decides that the claimant -
  1. (i)
    was a worker when the injury was sustained; and
  1. (ii)
    has sustained an injury; and
  1. (b)
    gives the claimant a notice of assessment for the injury."
  1. [7]
    On 15 October 2013 the Act was amended and as a consequence s 258 was removed from the Act.

Nature of Appeal

  1. [8]
    The appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the appellant.

Standard of Proof

  1. [9]
    The standard of proof upon which an appeal of this nature must be determined is that of "on the balance of probabilities".

Evidence

  1. [10]
    In the course of the proceedings, evidence was provided by eight witnesses in addition to Medio-Legal Reports from Orthopaedic Specialist Dr Hugh English and Occupational Physician Dr Robert McCartney both of whom were not required for cross-examination.
  2. [11]
    The Commission, in deciding to précis the evidence of the witnesses, and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety. 

Witness Lists

  1. [12]
    The witnesses for the Appellant were:
  • Gary Chalk (Chalk);
  • Rolph;
  • Dr Gerard Kilian (Dr Kilian);
  • David Leembruggen (Leembruggen);
  • Dr Alex Powell (Dr Powell);
  • Megan Rolph (Megan Rolph) and
  • Dr Michael Yang (Dr Yang).
  1. [13]
    The witness for the Regulator was Darryl Bourke (Bourke).

Appellant

Chalk

  1. [14]
    Chalk a remedial massage therapist had been conducting his practice at premises in Arana Hills on or around 8 December 2011 and at that time had provided massage therapy for employees of a business known to him as Aussie Tree Solutions (ATS).  Appointments would be made by "someone" from the office after which an employee would turn up at a given time.  The clients had to the best of his knowledge never paid for his services directly with payment being through the creation of an invoice given to the patient to take back to ATS or he would go into the office and pick up cash as and when he needed it.
  2. [15]
    Whilst he had no direct recall of treating Rolph, records from the business indicated he visited the practice on 8 December 2011 with lower back pain and Chalk had made the following notations:

"Appointment Date: 08 December 2011

Activity Focus:   lower back pain

     Client had a limp walking from the car

Relevant Information: In prone position I trigger point and myofascial release of Glutes, Hamstring and extensor muscles.

In supine position I trigger point and myofascial release the flexor muscles Quides and also released the hip flexs and the psoas muscles.

Gave stretchers and suggested to ask employer for more treatments if pain persist.

Client was moving more freer going back to car

In between tasks:   Do stretchers given"

  1. [16]
    In describing the range of treatment he provided for employees of ATS, Chalk's evidence was that he would treat somebody from ATS every three to four months for injuries such as back pain and shoulder pain.  Generally such treatment would occur after 4.00 pm following the completion of their work.
  2. [17]
    Under cross-examination he was unable to confirm what time Rolph had turned up on the day and whether someone from ATS had made the appointment on his behalf.  The owner of ATS (Bourke) would refer employees to him for both work and non‑work related injuries with Bourke paying for all treatments whether work-related or otherwise.

Rolph

  1. [18]
    Rolph, prior to commencing employment with ATS in 2009, had been both an amateur and professional boxer having a total of 82 fights, 17 of which were as a professional.  In the course of his boxing career he suffered a range of injuries which included:
  • general facial swelling and bruising; and
  • cuts that required multiple stitches.

Rolph would seek medical treatment for the injuries but had refrained from using "painkillers".

  1. [19]
    On commencement with ATS he was engaged as a subcontractor, later becoming a full-time permanent employee and then in 2011 he became an apprentice arborist.  The work involved working in a crew of three, climbing trees, operating a chainsaw and carrying the brush to a chipper.  Rolph's work often entailed climbing the tree and using the chainsaw.  In or around 2010 he provided boxing training to Bourke for a period of a year before Bourke ceased training.
  2. [20]
    On 8 December 2011 he was working for ATS as a grounds person which required him to pick up logs that had been cut from the tree.  In the course of that activity he bent over, feeling a sharp pain in his back, sustaining a wedge fracture in his back.  Despite the pain he kept working, taking the log to the chipper and completed the day's work.  On his return to the depot he informed Bourke of the injury sustained when lifting a log to which Bourke replied by saying words to the effect "I'll send you to a chiropractor and then get some massages, I'll cover the costs."  He was given the location of both the chiropractor and the massage therapist in addition to fifty dollars cash for the cost of the massage.  Appointments were made by staff from ATS after which he proceeded to the chiropractor's (Leembruggen) surgery.  A pre-treatment history was completed by him which contained reference to "low back" as other pertinent information but that had not been entered on the form by him.
  3. [21]
    Leembruggen treated his lower back region and at the conclusion of the visit handed him an invoice made out in his name.  Rolph then attended upon the massage therapist where he received a massage to his lower back.  He gave the fifty dollars provided by Bourke to Chalk but made no payment to Leembruggen.  To the best of his recollection he had the next day and following week off and upon his return to work was assigned a stump grinder role which was not a heavy job and he remained in that role until the end of January 2012.  At the time he sought no other medical treatment for the injury and had next visited his general practitioner in January 2012 for another medical issue.
  4. [22]
    On 16 October 2012 whilst at work he injured his neck and kept working until he again injured his neck two days later.  He sought treatment from a chiropractor and later made a WorkCover claim.  Legal proceedings were eventually instigated in respect of the neck injury and as part of that claim he was examined by both Dr McCartney and Dr English for the neck injury without reference to the previous lower back injury.  Prior to the injury to his lower back on 8 December 2011 he had never previously had any problems with his back.
  5. [23]
    Under cross-examination Rolph acknowledged a WorkCover claim had been made in mid-2011 for a tooth injury.  Upon commencement of employment he was unable to recall whether as part of his induction included that trees would be cut to manageable sizes.  There was a winch available to lift heavier logs into the chipper however at times it was difficult to get the chipper into residential properties.  With regards to his neck injury Rolph agreed that he had sustained an injury to his neck in his third last professional fight.  Rolph denied he had discussions with Bourke about chiropractic treatment for the non-work related neck injury.
  6. [24]
    Rolph refuted the suggestion that he attended work on 9 December 2011 completing his usual duties and that he completed his normal hours the following week.  ATS weekly time records for the weeks ending 7 and 14 December 2011 were tendered in the proceedings, signed by Rolph which confirmed he had been at work during that period which was in conflict with his evidence-in-chief after which he stated he may have been in the office doing his apprenticeship theory work.
  7. [25]
    From 8 December 2011 he had pain in his lower back but had not mentioned it to the general practitioner (Dr Yang) in January 2012 as he was being treated for an infected lip.  He again saw Dr Yang in September 2012 for a kidney condition and had not mentioned the injury suffered to his lower back because he "thought my employer had organised treatment for that injury".  In 2012 Rolph agreed that he had been refereeing touch football, doing workouts at the gym as well as having undertaken a road trip to Birdsville of two days each way.  He conceded he had been given a written warning regarding his performance on 9 October 2012 and his employment was terminated on 29 October 2012.  Rolph was examined by Dr English on 5 February 2013 and he had made no mention of his back pain on the advice of his solicitor at the time.  Rolph was taken to a WorkCover Communications Report commencing on 26 August 2011 which had recorded a number of conversations involving a WorkCover officer and himself however Rolph had great difficulty in recalling such discussions.
  8. [26]
    On day two of the hearing the Regulator sought and was granted leave to recall Rolph for the purposes of further cross-examination despite objections around such recall being made by the appellant.
  9. [27]
    Under further cross-examination Rolph was handed a WorkCover Queensland Communications Report and taken to entries on and around 26 August 2011 involving discussions between Rolph and a WorkCover claims officer.  Rolph had some difficulty in recalling the conversation from six years previous.

Dr Kilian

  1. [28]
    Dr Kilian an Orthopaedic Surgeon conducted an examination on Rolph on 26 October 2015 and subsequently prepared a report [Exhibit 8] dated 12 November 2015.  In the preparation of the report he had access to significant medical information relating to Rolph that included amongst other things the reports of Dr English and Dr McCartney.  Additionally he was provided with historical data relating to Rolph's personal history including the following information regarding the events of 8 December 2011:

"On 08 December 2011 Mr Rolph bend over to lift a section (block) of felled tree weighing +/‑ 30 kilograms from ground level to one metre.  He felt pain over his lower back centrally.  This was a sudden sharp pain.  He nursed this pain for the rest of the day and told his employer.  He then attended a chiropractor and took approximately one week off.  He then did mainly office work and continued to attend the chiropractor.  Thereafter he continued working for approximately one year but had pain present all of the time.  It is also noted that he hurt his neck in 2012 whilst dragging a branch.  He felt pain which increased gradually and he once again attended the chiropractor.  He also had massage therapy and three sessions of physiotherapy.  He was referred for an X-ray."

  1. [29]
    Dr Kilian went on to record that it was "quite clear" from the history that Rolph had bent over to lift a heavy section of felled tree and at this time sustained an acute pain in his lower back as a consequence.  Rolph had denied previous back trouble.
  2. [30]
    Under cross-examination Dr Kilian gave evidence that the opinion expressed by him in his report was heavily reliant upon the history provided by Rolph.  Dr Kilian held the opinion that he had developed mechanical pain which causes an injury to become painful with activity and improved with rest and whilst he had constant pain between 8 December 2011 and November 2012 that pain was "intermittent though, in intensity".  Dr Kilian recalled that Rolph had informed him that following the incident on 8 December 2011 he was off work for one week, then undertook office work and returned to slightly more intensive manual labour.  The X-rays and MRI scans revealed a lot of degeneration in the spine and it was his view that Rolph essentially had an injury which had aggravated his degeneration.  Dr Kilian accepted the proposition that even if Rolph did not have an injury on 8 December 2011 the development of the onset of symptoms of lower back pain could also be explained by his pre-existing degeneration.
  3. [31]
    In re-examination Dr Kilian was clear that Rolph had an injury which precipitated his symptoms and if the condition had happened spontaneously on the balance of probabilities he would have had a much lighter degree of incapacity and impairment or disability.  If the situation on 8 December 2011 was that Rolph had lifted a weight of some "30 odd kilos" it would be reasonable to expect he would suffer some symptoms.

Leembruggen

  1. [32]
    Leembruggen a chiropractor by profession gave evidence of Rolph having been treated by him on 8 December 2011 for a back problem.  In the course of an initial interview with the patient he became aware he was an ATS employee and that he had low back pain.  He again provided treatment for Rolph on 24 April 2012 for a neck problem.  Leembruggen had known Bourke as a patient and had some recollection of Bourke having brought a staff member for treatment or that he may have sent the employee by himself for treatment at his practice.  In respect of the treatment provided to Rolph he had issued two invoices for the 8 December 2011 consultation with payment eventually made by Bourke on Rolph's behalf about three months later.
  2. [33]
    Under cross-examination Leembruggen recalled that Rolph on 8 December 2011 had informed him that he was suffering from lower back pain however had made no mention of it being caused by an incident at work or from heavy lifting.

Dr Powell

  1. [34]
    Dr Powell a chiropractor first saw Rolph on 19 October 2012 at which time he had complained of neck, upper back and shoulder pain which had been inhibiting his work to some degree.  Upon examination he noticed that Rolph's right glutes were very tight which was fairly consistent with mechanical low back issues.  Rolph was sent off for an X-ray of the spinal region which showed signs of significant degeneration in two significant areas of his lower back.  Treatment was provided to the pelvis and lower back regions with also treatment to the neck.  On a second visit (23 October 2012) the findings were explained to him with a view formed that it was not inherent from his sporting past as a boxer and that he had lower back issues prior to his neck and upper back injuries.
  2. [35]
    Under cross-examination he confirmed the X-rays taken of Rolph demonstrated he had quite severe degeneration in his spine including the lumber spine.  Dr Powell had formed the view that Rolph was "a chap that had a high pain threshold".

Megan Rolph

  1. [36]
    Megan Rolph met her husband in 2001 and followed his boxing career until he retired in 2006.  It was her evidence that he was always the fellow with the "black eyes and cuts everywhere" although he never complained about his injuries, usually got no medical treatment beyond the stitches and did not take medication.  It was her assessment that he was pretty tough and had a "quite high" pain threshold.  She recalled him coming home from work in December 2011 and asking to file some paperwork from a chiropractor, telling her that Bourke would pay for it.  The account had not been paid by her and she had assumed Bourke had paid for the treatment.  At a later time her husband informed her that in addition to the chiropractic treatment he had also got a massage.
  2. [37]
    Under cross-examination Megan Rolph gave evidence that in December 2011 Rolph had told her that he had hurt himself at work and that his employer had sent him to the chiropractor.

Dr Yang

  1. [38]
    Dr Yang who had been Rolph's general practitioner for "many" years gave evidence initially of seeing him at his practice on dates in January and March 2012 for medical conditions but at those consultations he had not complained about low back pain except for 28 March 2012 when he presented with bilateral loin pain.  A number of tests were ordered in an effort to establish the source of the pain.  In the period that followed Dr Yang also saw Rolph on several occasions for neck pain.  On 14 November 2013 he presented with aliments that included back pain but he did not inform the doctor how he had got the back pain.
  2. [39]
    Dr Yang stated that Rolph usually played down his symptoms and as a professional boxer had a number of injuries that led to Dr Yang forming the opinion that "his tolerance to pain is also higher than other people".
  3. [40]
    Dr Yang gave evidence regarding the various tests ordered for Rolph in the early part of 2012 and confirmed that the first time Rolph had told him about the work-related event that led to his back pain was in February 2014.  Dr Yang agreed that X-ray reports identified Rolph having considerable degeneration of his lumber spine.

Regulator

Bourke

  1. [41]
    Bourke at present semi-retired was previously the owner of ATS for 20 years prior to selling the business on 1 February 2016.  He initially engaged Rolph as a subcontractor and he later commenced as an apprentice arborist.  On commencement of employment he put Rolph through an induction process in respect of the procedures to be followed in every aspect of tree felling and dismantling.  The business was conscious of the manual handling aspects of the job as safety was a priority and there was a range of equipment available to assist with the removal of branches and debris to the wood chipper.
  2. [42]
    For a time he socialised with Rolph which included undertaking boxing training at a gymnasium and during that time Rolph mentioned he had suffered a severe neck injury as a result of a bout with Daniel Geale who had been a world champion.  Whilst he was unable to recall specifics of the conversation occurring he believed it was in the early part of the training regime.  Bourke suggested to Rolph that it may be advantageous to seek medical attention and it might be in his favour to see a chiropractor (Leembruggen).  All staff were advised during the induction that if they had aches or pain he was happy for them to see a masseur or chiropractor at his expense which he saw as offering a "bonus" although it certainly was not to be a regular occurrence.
  3. [43]
    Bourke denied having a discussion with Rolph on 8 December 2011 about having suffered an injury earlier in the day and further denied that he gave Rolph fifty dollars towards a treatment.  The arrangement he had with Chalk and Leembruggen was that invoices would be issued for employees attending their practices and he would then make the payment.  Bourke gave evidence that he did not actually recommend "anybody to anyone" but did not mind as long as someone had some sort of medical qualification or was a certified practitioner.  In response to a question from the Commission he conceded he informed staff they could go to Chalk but was unable to give evidence regarding his qualifications.
  4. [44]
    In the period encompassing the 2012 year Rolph had made no complaint about having lower back pain.  On 29 October 2012 Rolph's employment was terminated by ATS because of unsafe work practices.
  5. [45]
    Under cross-examination Bourke recalled providing information to WorkCover in 2012 about a neck injury claim made by Rolph and whilst his recall was limited he remembered having some objection to the claim.  Sometime in and around the last quarter of 2016 he was contacted by WorkCover about a claim by Rolph for a low back injury which came completely "out of the blue" because he had sold the business.  The claim dated back some six years and in the last four months he had been required to provide more detail about his recollection.  Prior to the termination the business had given Rolph three warnings for various things and he did not accept that he had been a "good and reliable" worker.
  6. [46]
    The type of work undertaken by ATS was described by Bourke as a "high risk activity" if procedures were not followed and could be physically demanding.  Bourke could not remember the exact date he told Rolph about Leembruggen but it had been before December 2011.  He accepted that Rolph had seen Leembruggen in December 2011 and he had paid the account for him.  Bourke did not arrange bookings for the chiropractor or masseur but said it was possible that his staff may have made an appointment if requested by the employee.  In fact employees would at times have the office staff make an appointment for them to see a chiropractor.  The same would apply if the staff member wanted an appointment to get a massage.
  7. [47]
    Following the visit to Leembruggen by Rolph on 8 December 2011 he had a discussion with the chiropractor some three weeks later about the non-payment for that consultation and he made arrangements for the payment to be made, however Bourke continued to dispute that he had given fifty dollars to Rolph for the massage on 8 December 2011.  The visit to Chalk on 8 December 2011 by Rolph was unknown previously to Bourke with his evidence being "…I know absolutely nothing about it.  The first I heard about it is today.  Well, a week ago".  On the evidence of Rolph regarding him undertaking work in the office immediately following 8 December 2011 Bourke did not believe Rolph ever worked in the office in the course of his employment but it was possible he had worked on the stump grinder.  Bourke whilst accepting stump grinder work was lighter than being on the tree crew it still did not classify as a "light duties role".  Finally in paying for employee treatments he had never questioned "where their aches or ailments came from."
  8. [48]
    In re-examination the evidence was that the only time Rolph had been on light duties followed an injury to his calf muscle he received playing touch football.

Submissions

Regulator

  1. [49]
    There was no dispute that Rolph was a worker at the relevant time with the matters to be determined being:
  • whether Rolph had sustained an injury;
  • whether the injury arose out of or in the course of his employment; and
  • whether the employment had been a significant contributing factor.

The injury claimed in this action was that of a lumber spine injury being an L1-2 disc and L1 body injury.  The relevance of the injury relates to where Rolph said he felt the pain, as opposed to the treatment that was provided by Leembruggen on 8 December 2011.

  1. [50]
    There was reference to the matter of Godwin v Simon Blackwood (Workers' Compensation Regulator)[1](Godwin) in respect of evidence in these proceedings about the employees from time to time having muscle sprains or whatever may occur as a consequence of the work duties they were required to perform and of it being accepted by the employer they would receive treatment from a massage therapist or chiropractor paid for by the employer, however the injury subject of consideration is a specific injury said to have been sustained on 8 December 2011.
  2. [51]
    There was a very significant contrast between Rolph's evidence where he said he sustained his injury and the evidence from Leembruggen about the area he treated.  Differences also existed between Rolph's evidence and that of Dr Yang regarding the pain in the area of the loins and Dr Yang with the benefit of later X-rays which showed significant degeneration in Rolph's spine agreed that his description on 27 March 2012 was entirely consistent with the pain generated from that area.  Dr Yang was clear that the onset of symptoms was consistent with the degenerative condition.  Dr Kilian agreed with the degenerative aspect although he formed the opinion that there had been a work-related injury based on accepting the history Rolph had given him.  It should be noted that the first time Dr Yang was informed of the back injury was at a consultation on 17 February 2014 whereas he complained about the loin pain in March 2012.
  3. [52]
    The evidence from Rolph on his attendance upon Drs McCartney and English for assessments regarding a neck injury changed in the course of cross-examination in that he claimed to have acted on the advice of his solicitor not to mention the back injury because it would only be to his detriment which was in stark contrast to his evidence-in-chief where no mention was made about any legal advice.  The Commission ought to be very concerned about accepting Rolph's evidence on this and whether he reported to Bourke on 8 December 2011 that he had sustained an injury.  Bourke freely admitted making arrangements for his employees to have treatment paid for by him but he was categorical that Rolph had not reported any injury to him on 8 December 2011.
  4. [53]
    In conclusion the Godwin decision was said to be relevant to the evidence of Dr Kilian whom agreed that symptoms exhibited by Rolph could equally be explained by the degeneration present in his spine.

Appellant

  1. [54]
    The appeal was against a decision of the Regulator which found that Rolph had not suffered an injury to his lower back on 8 December 2011 in the course of his employment as an apprentice arborist.
  2. [55]
    Agreed facts included:
  • ATS carried on a business of tree removal, lopping and pruning;
  • Bourke was an owner/director and the person in charge of the day-to-day running of the business;
  • Rolph commenced employment in 2009;
  • Rolph worked as part of a three-man crew with his duties carrying or taking tree trunks, branches etc to a chipper with those duties varying day‑to-day in respect of tasks undertaken;
  • on 8 December 2011 Rolph was undertaking his usual duties which included taking felled tree logs to the chipper.

Issue for determination

  1. [56]
    The issue for determination is whether Rolph suffered an injury to his lower back when picking up a log on 8 December 2011.  Collateral to this finding it was submitted is whether Rolph had told Bourke on 8 December 2011 that he had a previous injury to his neck and was experiencing difficulties with that condition.

Background

  1. [57]
    The submission referred to Rolph's boxing career that covered the period from when he was 16 years of age until his retirement in his early thirties and in particular the fact that he had a high level of pain tolerance as evidenced by Drs Yang and Powell as well as Megan Rolph.
  2. [58]
    Rolph upon taking up employment with ATS also instigated a training program for Bourke during which time he informed Bourke of a neck injury suffered as a consequence of boxing.  The relationship between the pair both workwise and socially was on a sound footing until October 2012.

Work incident

  1. [59]
    The work incident occurred on 8 December 2011 when he attempted to pick up a log that was thought to weigh around 35 kilograms at which time he felt a sharp pain in his lower back.  Despite the pain he continued to work, informing Bourke on his return to the depot of the incident.  Bourke sent him to the chiropractor and masseur meeting the costs for both consultations.  Prior to 8 December 2011 Rolph had no contact with either of the two practitioners.
  2. [60]
    Rolph was confused about whether he worked the next day or otherwise but records showed he worked the day most likely in the office.  Thereafter he was placed on the stump grinder until March or April the following year.  There was no evidence contradicting this background save for Bourke's.

Other relevant evidence

  1. [61]
    Rolph's evidence that he continued to self-manage the injury to the lower back should be accepted and the fact that he failed to mention the injury to Dr Yang in consultations immediately following 8 December 2011 was not unusual because he had a number of other medical conditions to focus on.  The presentation of bilateral loin pain on 24 March 2012 to Dr Yang was thought by Rolph to be connected to kidney issues rather than the low back pain as a result of his work incident.  Dr Yang's evidence was that prior to December 2011 Rolph had never presented with low back pain.
  2. [62]
    A neck injury was suffered by Rolph on 16 October 2012 and a further injury to the neck on 18 October 2012 which is of no relevance to these proceedings except that as a consequence a statutory workers' compensation claim that was lodged and accepted by WorkCover, Rolph decided to commence a common law claim against his employer as a result of that incident which required him to undergo medico-legal assessments with various WorkCover doctors that included Drs English and McCartney.
  3. [63]
    Megan Rolph who had been with her husband since 2002 had no recall of any complaints regarding low back pain prior to 8 December 2011 but recalls being informed of the visit to the chiropractor on 8 December 2011 and the subsequent taking of pain relief medication.  She was well placed to give evidence regarding her husband's high tolerance to pain having observed numerous injuries to his head and face in the course of his boxing career.
  4. [64]
    The submission included an analysis of evidence in the proceedings on matters such as:
  • it was not disputed that Bourke informed Rolph about the chiropractor and that he paid for the visit on 8 December 2011;
  • Rolph had no symptoms of lower back pain prior to 8 December 2011;
  • Rolph attended both Leembruggen and Chalk on 8 December 2011 as a consequence of Bourke (ATS intervention);
  • Leembruggen treated Rolph for low back pain on 8 December 2011;
  • Rolph had a high level of pain tolerance;
  • medico-legal reports of Drs English and McCartney were for a work injury to Rolph's neck;
  • Dr Kilian opined that it was unlikely for spontaneous symptoms to have arisen without some action or conduct to aggravate the degenerative position; and
  • the pre-existing degeneration does not relieve the Regulator from the claim if the symptoms are an aggravation of a pre-existing degenerative condition and if a work-related incident caused the symptoms.

Demeanour

  1. [65]
    Rolph had made every effort to respond as best he could to questions put to him during his evidence but at times became confused about issues including dates and documents presented to him.  The Commission would have regard no doubt to the medical reports and in particular that of Dr Kilian where he stated that:

"…he [Rolph] has extensive degenerative disease and furthermore as a consequence of his boxing activities also has signs of dramatic brain injury."

Rolph gave his evidence in a forthright manner as best he could.

  1. [66]
    Additional matters raised in oral submissions included:
  • Rolph complained about an injury to his back which caused low back pain not an injury to L5 or S1, L1 or L2;
  • Bourke had rejected the proposition that Rolph was a reliable worker yet had appointed him as a leading hand of a gang that included Bourke's son, as well as signing him on as an apprentice arborist;
  • Rolph had gone to the office on 8 December 2011 where arrangements were made on his behalf to see the chiropractor and masseur; and
  • Drs English and McCartney were only interested in Rolph's neck injury in connection with their medico-legal reports.

Summary

  1. [67]
    It was submitted that the only conclusion is that Rolph did suffer the injury as described on 8 December 2011, had the treatment as evidenced, with the injury falling within s 32 of the Act.

Conclusion

  1. [68]
    The status of Rolph as a worker pursuant to s 11 of the Act was not required to be determined by the Commission on the basis that the status was not the subject of dispute between the parties.
  1. [69]
    The matters for determination were:
  • did Rolph sustain a personal injury;
  • did the personal injury (if suffered) arise out of or in the course of Rolph's employment; and
  • was Rolph's employment a significant contributing factor to the injury.

Did Rolph sustain a personal injury

  1. [70]
    In respect of the incident on 8 December 2011 in which it is alleged by Rolph he suffered an injury to his lower back, there was no visit at the time to a registered general practitioner or any other medical person of similar standing with the level of treatment confined to that of a chiropractor and a massage therapist.
  2. [71]
    In terms of the chiropractic treatment received by Rolph on 8 December 2011 from Leembruggen the notes of the practice identify his occupation as a tree lopper, referred to the practice by Bourke and in respect of "other pertinent information" the notes record the words "low back".  In the course of cross-examination Leembruggen recalled that on 8 December 2011 he had been informed by Rolph that he was suffering "lower back pain".
  3. [72]
    On the same day (8 December 2011) Rolph attended upon the massage therapist (Chalk) and the patient notes identifying the activity focus as being "lower back pain".
  4. [73]
    Following the incident of 8 December 2011 Rolph attended upon his longstanding general practitioner (Dr Yang) on a number of occasions for medical issues not relating to low back pain.  On 28 March 2012 he presented to Dr Yang with pain described as "bilateral loin pain" and was ordered to undergo a range of medical related testing to determine the source of the pain.  In February 2014 the patient notes for a visit on the third day of that month references amongst other things Rolph having low back pain and in evidence Dr Yang informed this was the first time that Rolph had told him about a workplace incident had led to the pain.
  5. [74]
    Dr Powell who provided chiropractic treatment to Rolph in October 2012 gave evidence of finding upon examination that his right "glutes" were very tight which was fairly consistent with mechanical low back issues and treatment was given in areas that included his lower back.  Dr Powell had formed the view Rolph was "a chap that had a high pain threshold".
  6. [75]
    Dr Kilian conducted an examination of Rolph on 26 October 2015 for the purpose of the preparation of a medico-legal report.  In the report [Exhibit 8] Dr Kilian responded to the question of whether Rolph had sustained an injury as a result of an event on 8 December 2011 to which he opined:

"I note that the previous reports particularly emphasise the cervical spine injury but it is clear that Mr Rolph sustained an injury to his thoracolumbar spine which has also contributed to his psychiatric injury.  This took place on 08 December 2011.  At the present time he continues to have ongoing back pain with symptoms which suggest there is a radiculopathy present.  He also has an asymmetrical lumbar spine range of motion present."

  1. [76]
    In evidence before the Commission Dr Kilian indicated that the content of his report was heavily reliant upon the history provided by Rolph and additionally he had access to X-rays and MRI scans that revealed a lot of degeneration in the spine which had caused an injury through aggravation of the degeneration.  Dr Kilian was clear that Rolph had an injury which precipitated his symptoms and which was reasonable to expect.
  2. [77]
    Dr Kilian's reliance upon the history provided by Rolph in reaching his conclusions that an injury had been sustained o 8 December 2011 was the subject of some question by the Regulator however it must be said that it is common practice for an injured worker to provide such history to assist in the process of formulating medico-legal reports.  In this case the history provided to Dr Kilian in my view was consistent with the evidence of Rolph in the proceedings and I can find no obvious reason why it was inappropriate for that history to be accepted as reliable by Dr Kilian.
  3. [78]
    On consideration of all the evidence pertinent to Rolph sustaining a personal injury on 8 December 2011 and in particular with no medical evidence being offered contrary to that of Dr Kilian, I am satisfied that for the purposes of s 32 of the Act that Rolph sustained a personal injury in the form of a low back injury on 8 December 2011.

Did the personal injury arise out of or in the course of Rolph's employment

  1. [79]
    The personal injury sustained by Rolph had not been the subject of a statutory workers' compensation claim at the time of injury and the circumstances in which the matter must be determined and that some six years have elapsed and understandably the level of recall by those who gave evidence in the proceedings had limitations by virtue of time.
  2. [80]
    In essence Rolph claims to have sustained an injury on 8 December 2011 when performing the duties of his calling in the lifting of a section of felled tree weighing approximately 30 kilograms.  On return to the depot he spoke to Bourke who was said to have arranged for him to access a chiropractor and massage therapist that afternoon.  Bourke denied having the conversation and that he had not actually recommended "anybody to anyone".
  3. [81]
    The factual evidence is that on 8 December 2011 Rolph attended upon both Leembruggen and Chalk for which he sought treatment for low back (Leembruggen) and lower back pain (Chalk).  In respect of Leembruggen it is noted on the patient history that Rolph had been referred to by "Darryl Bourke".  The payment of the chiropractic consultation was made by ATS and confirmed by Bourke in the course of his evidence however there was conjecture regarding the payment for the massage in that Bourke denied giving Rolph fifty dollars prior to his departure from work.  Chalk in evidence stated that Bourke would refer employees to him for work and non‑work-related injuries always paying for the treatments.
  4. [82]
    The medical evidence which included the general practitioner's patient notes (Dr Yang) which covered a period of time from 26 May 2006 until 1 April 2014, collectively made no reference in respect of any history of low back pain having been suffered by Rolph which is particularly relevant in respect of the time period prior to 8 December 2011 in that it is reasonably open to conclude that on 8 December 2011 was the first time any treatment was offered for such a condition.  Further in terms of the medical evidence, Dr Kilian in his medico-legal report opined the following in response to whether the injury sustained by Rolph arose out of or in the course of his employment:

"It is quite clear from the history that Mr Rolph bent over to lift a heavy section of felled tree and at this time sustained an acute pain in his lower back as a consequence.  He denies previous back trouble and certainly it is clear that this eve imitated his present symptoms."

  1. [83]
    As mentioned earlier I have no issue in terms of any inconsistencies with the evidence of Rolph regarding the historical events relative to these proceedings therefore the opinion of Dr Kilian is of benefit in support of the argument of the personal injury sustained by Rolph on 8 December 2011 arising out of or in the course of his employment with ATS.
  2. [84]
    On consideration of both the evidence and material regarding the incident of 8 December 2011, the subsequent treatments and there being no indication of Rolph having prior to that day ever having issues with low back pain I am satisfied the said incident occurred in the course of his employment.

Was Rolph's employment a significant contributing factor to the injury

  1. [85]
    In the determination of this issue the fact that no record of any lower back injury or similar condition existing prior to 8 December 2011 is supportive of the employment having been a significant contributing factor to the injury sustained by Rolph on 8 December 2011.  Further in terms of the reported mechanism of injury Dr Kilian as referred to earlier indicated that it was quite clear that Rolph had bent over to lift a heavy section of felled tree and at that time sustained an acute pain in his lower back as a consequence.  Dr Kilian in evidence said that if Rolph had lifted a weight of some "30 odd kilos" it would have been reasonable to expect he would have suffered some symptoms.
  2. [86]
    I have formed the view based upon the evidence that the injury suffered by Rolph on 8 December 2011 occurred in circumstances where his employment was a significant contributing factor to the injury.

Rolph's demeanour

  1. [87]
    In the overall determination of the appeal I have decided in respect of crucial areas of dispute between the parties to prefer the evidence of Rolph to that of Bourke whom I found to be unimpressive at certain times with regards to the evidence he gave in the proceedings.
  2. [88]
    I acknowledge there were some instances where Rolph displayed signs of confusion around particular details of his employment and at times there were difficulties with his recall generally however that in my view must be balanced against his circumstances.  He was not a sophisticated person by any means and as previously mentioned Dr Kilian identified signs of traumatic brain injury as a consequence of his boxing activities.  Of the documentation considered by Dr Kilian in preparing his medico-legal report was a supplementary report by a Dr Jennifer Lockwood (dated 15 February 2015) regarding his legal capacity.  Dr Kilian in referencing the report stated:

"This states on the basis of his presentation in March 2014 that he lacks legal capacity to give proper and competent instructions and would support the value of him having an appointed guardian."

  1. [89]
    In the proceedings at the time of Rolph's recall to be cross-examined the following exchange occurred between the Commission and the witness:

"Commissioner: Well, he's putting questions to you.  Now, we're talking about something that happened in 2011, so when I'm dealing with this matter and considering it, this is 2017.  So that's a - in your memory and my memory and most other peoples' in this room going back to an issue six years ago, all of that has to be taken into account.  So I just suggest we might have a break for a couple of minutes - - -?

Rolph: Yes.

Commissioner: - - - just to let you calm down.  Now, I thought yesterday you gave evidence in a way that you should consider – it was well done.  You presented it in a manner where I thought that you answered every question that was put to you as best you could?

Rolph:  Mmm." [Transcript p. 2-11]

Injury

  1. [90]
    For the purposes of my determination I was required to decide only whether Rolph had sustained or otherwise as a worker a personal injury in the course of his employment and if his employment was a significant contributing factor to that injury.
  2. [91]
    In finding he sustained a lower back injury I have not dealt with the issue of injury or aggravation per se in any detail noting however that there was uncontradicted evidence regarding significant degeneration in the area of his injury.
  3. [92]
    The full determination about the injury is for another time and place.

Findings

  1. [93]
    Having considered the evidence, material and submissions before the proceeding, based upon the requisite standard of proof, I find that on 8 December 2011 that Rolph was:
  • a worker pursuant to the Act;
  • he sustained a personal injury to his lower back;
  • the personal injury arose out of or in the course of his employment; and
  • the employment was a significant contributing factor to his personal injury.
  1. [94]
    The decision of the Regulator (dated 23 December 2015) to confirm the decision of WorkCover to reject Rolph's notice of claim for damages is set aside with the claim being one for acceptance.
  2. [95]
    The appeal is upheld.

Costs

  1. [96]
    The Regulator is to pay the appellant'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.
  2. [97]
    I so order.

Footnotes

[1] Godwin v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 206

Close

Editorial Notes

  • Published Case Name:

    Rolph v Workers' Compensation Regulator

  • Shortened Case Name:

    Rolph v Workers' Compensation Regulator

  • MNC:

    [2018] QIRC 6

  • Court:

    QIRC

  • Judge(s):

    Member Thompson IC

  • Date:

    18 Jan 2018

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
Godwin v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 206
2 citations
Jump To
Cite 1 - [2014] QIRC 206
Cite 2 - [2014] QIRC 206

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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