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Nuske v Workers' Compensation Regulator[2019] QIRC 23

Nuske v Workers' Compensation Regulator[2019] QIRC 23

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Nuske v Workers' Compensation Regulator [2019] QIRC 023

PARTIES: 

Beau Danial Nuske

(Appellant )

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2017/15

PROCEEDING:

Appeal

DELIVERED ON:

22 January 2019 

HEARING DATES:

7 June, 20 July 2018

MEMBER:

HEARD AT:

O'Connor VP

Townsville

ORDER:

  1. The appeal is dismissed;
  2. The decision of the respondent dated 31 January 2017 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 a decision of the Workers’ Compensation Regulator – where appellant suffers from a pre-existing condition – where appellant contends that he suffered an aggravation of his condition – whether employment was the major significant contributing factor to the aggravation. 

LEGISLATION:

CASES:

Workers' Compensation and Rehabilitation  Act 2003 (Qld) s 32

Workers' Compensation Act 1926 (NSW)

Carman v Q-COMP (2007) 186 QGIG 512

Chattin v WorkCover Queensland (1999) 161 QGIG 531

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

Davidson v Blackwood [2014] ICQ 008

Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626

JBS Australia Pty Ltd v Q-COMP (C/2012/35)

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

Q-COMP v Green (2008) 189 QGIG 747

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

Theresa Helen Ward v Q-COMP (C/2011/39)

APPEARANCES:

Mr J Greggery QC instructed by Organic Legal for the appellant

Mr S McLeod directly instructed by the respondent

Reasons for Decision

  1. [1]
    Beau Danial Nuske was employed as a removalist by a Townsville based company trading as "Caloundra Removals". On the 4 February 2016 the appellant suffered an injury to his lower back whilst completing a job in Cairns. An application for compensation with WorkCover was made on 11 April 2016. The claim was investigated and ultimately accepted by the insurer.
  1. [2]
    It is contended that the appellant suffered a further injury whilst removing furniture in Mt Isa on 19 March 2016. The appellant contends that he suffered an aggravation or an exacerbation of his degenerative right hip.[1] It is not in contention that the appellant has a pre-existing degenerative change to his right hip.
  1. [3]
    The respondent in its decision of 31 January 2017 rejected the application for compensation on the basis that his employment was not a significant contributing factor to the injury in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003. It is against that decision that the appellant now appeals.

The Mt Isa incident

  1. [4]
    The appellant together with a co-worker, Dale Campbell attended a residence in Mt Isa to remove furniture. Towards the end of the job the appellant and Mr Campbell were carrying a large bookcase weighing approximately 45-60 kilograms down a set of stairs. The appellant said that as he was moving backwards down the stairs he felt his leg buckle and he fell ending up wedged in the door frame at the bottom of the stairs with the bookcase on top of him.[2]
  1. [5]
    The appellant said that he felt excruciating pain in his right buttock and hip.[3] Notwithstanding the pain, the appellant finished the job because there was "very little to do – just tidy up stuff and get it signed off."[4] The appellant says that he rang his employer to inform them about the incident and then both he and Mr Campbell drove to Cloncurry.[5]
  1. [6]
    The appellant described the pain level directly after the incident as about 8 or 9. He was taking Lyrica and Tramadol which had been prescribed by his general practitioner in regard to the previous injury to his lower back.[6]
  1. [7]
    The appellant did not seek immediate medical treatment rather he stayed overnight in Cloncurry and the next morning he, Mr Campbell and another colleague completed another job that required goods to be delivered to Townsville. The appellant’s evidence was to the effect that he had no role in loading the truck rather he completed the automated inventorying on the iPad.[7]
  1. [8]
    The drive from Cloncurry to Townsville took approximately 8 hours and the appellant described his pain level during that trip as "ridiculous. You know- I don't know how I made it back…"[8]

Medical Treatment

  1. [9]
    On 21 March 2016 the appellant attended on his General Practitioner, Dr Gurdeep Singh Bagari at the Northtown Medical Centre Townsville. Dr Bagari made the following note in his clinical records:

Here for the follow up. The pain in the right hip and back is getting worse… advised scanning to rule out sinister [r]eason as muscle spasm would have resolved by now. Pain relief and follow up with results.[9]

  1. [10]
    The appellant did not tell Dr Bagari about being injured in Mt Isa. The appellant explained his reason for not doing so:

Appellant:  all I was trying to do was to protect my employer.

Mr McLeod:  Well, what do you mean by that?  

Appellant: Well, I’ve known him since I was a young man, you know what I mean.  And I didn’t want him getting in trouble.  I’m not familiar with all of the – what – what’s going on here, you know what I mean.  I just didn’t know. I didn’t want him to get in trouble.  I can’t say it any clearer.  I didn’t want him to get in any trouble.

Mr McLeod:  Well, how did you think they would get into trouble?   .

Appellant:  Like I said, I’m not familiar with this process.  So I don’t know how it works.

Mr McLeod: why were you worried that they would get into some form of trouble, if you don’t know what?

Appellant: Because I don’t believe I was supposed to be sent out to Mount Isa in the first place, you know what I mean, because I was already injured.[10] 

  1. [11]
    Dr Bagari issued a medical certificate which certified the appellant as being unfit for work from the 21st to the 27th of March 2016.[11]
  1. [12]
    On 21 March 2016 Dr Monika Joshi conducted an X-Ray of the lumbosacral spine and right hip and pelvis finding that, with respect to the hip:

Slightly bumpy contour of the femoral head/neck junction on the right side, which may predispose to femoroacetabular impingement.[12]

  1. [13]
    On 24 March 2016 the appellant again attended on Dr Bagari for a further review. He was referred to Mr Mark O'Brien for chiropractic treatment. In addition, the appellant attended a physiotherapy student clinic at the James Cook University.
  1. [14]
    It was not until 30 August 2016 that the appellant informed his doctors about the Mt Isa incident.  Dr Viney Joshi recorded in his clinical notes:

Had a fall while at work on the 19 March 2016. Was advised by the others not to tell anybody about it. Leg buckled while coming down the stairs carrying a rather large bookcase. Leg gave way and he fell down the stairs and hit his right hip on the edge of the stairs and then rolled down and the bookcase fell on top of him, scar to the left leg when the bookcase hit him on the left shin.[13]

  1. [15]
    Following that consultation, Dr Joshi issued the appellant with a Workers’ Compensation medical certificate for “right sided hip and back pain” and was certified as unfit for work to 30 September 2016.
  1. [16]
    An application for workers’ compensation was lodged by the appellant on or about 30 August 2016. What apparently prompted the appellant to lodge the application was because he "was obviously injured"[14]; "he needed surgery"[15]; and he was "getting jerked around" by WorkCover.[16]
  1. [17]
    Throughout 2016-2017 the appellant saw numerous medical professionals; obtained referrals for specialist medical investigation or treatment; complained of right hip pain; performed light duties; or had periods of being certified unfit for work.
  1. [18]
    Sometime in October 2016 the appellant stopped working with the company.[17]

Issues for determination

  1. [19]
    The issue for determination in this appeal is whether the appellant sustained an "injury" within the meaning of that term in s 32 of the Act.
  1. [20]
    At the relevant time, s 32 provided:

 32Meaning of injury

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

 

 (3)  Injury includes the following–

 

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

   (i)  a personal injury;

   (ii)  a disease;

  1. (iii)
    a medical condition if the condition becomes a personal injury or disease because of the aggravation;
  1. [21]
    The appellant contends that:
  1. (a)
    An injury was suffered on 19 March 2016 as a consequence of a fall down stairs whilst removing furniture from a house in Mt Isa;
  1. (b)
    The injury aggravated a pre-existing lower back injury suffered on 4 February 2016; and
  1. (c)
    The incident caused a new injury to his right hip. 
  1. [22]
    Having regard to the conduct of the hearing, the appellant does not now pursue the aggravation of the pre-existing lower back injury.
  1. [23]
    The appellant contends that the incident on 19 March 2016 caused a new injury to his right hip. It is submitted that the issue for determination is whether the appellant suffered an aggravation or an exacerbation of his degenerative right hip in the traumatic fall down stairs while carrying a heavy book case.[18]
  1. [24]
    The respondent’s case is that the appellant’s condition does not equate to an aggravation for the purposes of the Act. It relevantly contends that there is insufficient evidence to conclude, on the balance of probabilities, that any injury that the appellant sustained to his right hip was causally connected to the incident on 19 March 2016.

Medical Evidence

Dr John Maguire

  1. [25]
    The appellant called Dr John Maguire, orthopaedic surgeon, who examined him on 12 May 2017 and prepared a report dated 18 May 2017.[19] The report describes how the appellant was descending stairs carrying a tall bookcase when he lost control of his footing and collapsed injuring his back.
  1. [26]
    Dr Maguire diagnosed the appellant as suffering from an "aggravation of degenerative change right hip".[20] Under the heading "Medicolegal Opinion" the report states:

Symptoms Consistent with Complaint:

It is my opinion your client's symptoms are consistent with the complaints he describes and the mechanism of injury described. Mr Nuske sustained two injuries, the predominance of which being as a result of the second accident with ongoing symptoms.

Attributability

Mr Nuske's lumbosacral spine injury is 100% attributable to the accidents as he was asymptomatic prior to the accidents. His right hip is predominantly pre-existing as he has some degenerative change in the right hip which pre dates the injuries. I believe this is 80% pre-existing and 20% related to the accidents.[21] (emphasis added)

  1. [27]
    Under cross examination Dr Maguire was asked:

Mr McLeod:  I suggest to you that that isn’t consistent with the natural history of acute pain.  What in fact has occurred here is, effectively, just further degenerative changes?

Dr Maguire:  I don’t think that’s the case at all.  He’s had an acute exacerbation which his made him I acknowledge that he has an underlying problem in both his back and his hip and therefore he’s had an acute exacerbation, and therefore, he’s reset the baseline of the symptoms that are occurring.  So he’s now getting significant problems from his original – from his original problems, so they’ve been made significantly worse, and therefore, he gets changes. It’s very common for people to present that way.  I just don’t understand the acute thing, if you’ve got an acute injury, which makes it worse, then that can be prolonged for a very long period of time, and acute exacerbations occurring as a result of ongoing flare-ups on the pathology.

 And?So you’ll get acute symptoms and signs at a regular basis.  They don’t just happen once and then go away.  That’s happened in some cases, but it doesn’t in most.

Mr McLeod: And you’ve had regard to both reports of Dr Sommerville and the reports of Dr Patten, haven’t you?

Dr Maguire:  Yes, I have.

Mr McLeod:  And would it be fair to say that where you differ from Dr Patten and Dr Sommerville is in effect that those two doctors put down his – his condition down to ongoing degenerative changes?

Dr Maguire:  he had some underlying degenerative changes in both the hip and his lower back, but I believe that sustained an exacerbation of the pathology, so therefore, he’s getting symptoms as a result of exacerbation, and it’s – I’ve acknowledged that there is some underlying problems, and it’s clearly defined in my – in my notes in there.  I think Dr Patten said that very clearly in his last one that’s a – there are one or two things that we say that are very similar.

Dr Andrew Patten

  1. [28]
    Dr Patten is an orthopaedic surgeon who examined the appellant on 14 July 2016 and 1 August 2016 and produced three reports dated 2August 2016,[22] 27 June 2017,[23] and 11July 2018.[24]  Dr Patten's evidence was that at no stage did the appellant tell him about the Mt Isa incident.[25] It is not exactly clear when Dr Patten was notified of the Mt Isa incident, however, in his second report of 27 June 2017 which is addressed to the respondent he states "…you wished for me, if possible, to make comment on a second nominated injury the patient has subsequently declared has occurred on 19 March 2016."[26]
  1. [29]
    In the report of 27 June 2017 Dr Patten referred to the report of Dr Maguire and, in particular, his reference to a second injury on 19 March. He wrote:

I have re-read my initial IME and also the independent medical examination of Dr Scott Sommerville. We are both of the feeling, in our reports, that his constitutional osteoarthritis was pre-existing and we have stated in several paragraphs, we didn’t see a “clear” injury to his right hip. Pain the patient was complaining of was thought mainly to be coming from an aggravation of his lower thoracolumbar spondylosis as all three independent medical reports have suggested. Undoubtedly he has some right hip symptomology related to some degenerative change.[27]

  1. [30]
    In his third report of 11 July 2018[28] Dr Patten wrote:

I reviewed Mr Nuske at a time point that was after both of these alleged work injuries. I agree with Dr John Maguire, that his right hip symptomatology is predominantly caused by pre-existing established constitutional degenerative hip osteoarthritis. This degeneration is likely the result of long-standing ‘cam impingement’. There are similar degenerative features present in both hips.

Both Dr John McGuire and myself agree that he has aggravated some pre-existing degenerative change within his right hip. He states so on page 6 of his document.             

 

Having not taken the history directly from Mr Nuske, it is plausible that the differing account is               open to interpretation, taking that into account, it could be considered that during an injurious event               the patient may have aggravated his right hip constitutional problem but to what extent depends on               the event which occurred on 19th March, 2016. For example was the patient pinned against the door               frame with the bookcase on his lower body or did the patient fall to the ground with the bookcase               on top of him.

 

It is possible that after an alleged trauma (which involved two separate incidents) concerning the               patients right hip, Mr Nuske could have aggravated his pre-existing degenerative changes. Mr               Nuske subsequently complained of right hip and buttock pain. Dr McGuire has stated this in his               summary at the end of page 6 of his document. This event however does not alter my original               opinion and findings following investigation of his right hip.[29]

  1. [31]
    Dr Patten formed the view that he did not see a clear injury to the appellant’s right hip. In re-examination, Dr Patten said that the use of the expression “clear injury” was used in the sense of a traumatic event as a direct causal relationship as opposed to degenerative change which can cause pain. It was only during the trial that Dr Patten became fully appraised of the nature of the incident on 19 March 2016.

Dr Patten: Did the patient fall on the ground?  It’s become apparent in the last 10 minutes that it’s claimed that he did fall onto the ground, so even with that hypothetical – with those situations, I said it’s plausible.  It is plausible, regardless of the injury mechanism.  I mean, an injurious event can cause an aggravation of right hip pain, but I think a fall you could attribute more of a direct relationship because that might involve twisting or flexion, jarring.  Where it’s been pinned against a doorframe vertically with no flexion, abduction, twisting, the direct relationship becomes extremely tenuous, and therefore it’s hard to say whether there is a direct relationship.  And with constitutional pain, you know, it could be indirect.  He could have had degenerative pain at the time of his injury which he doesn’t state – doesn’t declare.[30]

Dr Scott Sommerville

  1. [32]
    The respondent called Dr Sommerville, orthopaedic surgeon, who examined the appellant on 25 August 2016 and prepared a report dated 6 September 2016,[31] and a supplementary report dated 10 July 2017.[32] With respect to the first report Dr Sommerville’s instructions were to comment on injuries sustained at a workplace event, namely, the Cairns incident of 4 February 2016. Nonetheless, under the heading “other opinions” Dr Sommerville refers to when the appellant attended his general practitioner on 21 March 2016 with pain in the right hip and back.[33]
  1. [33]
    Dr Sommerville’s instructions when preparing the supplementary report was to comment on the appellant’s claim relating to the second injury occurring on 19 March 2016.[34] In preparing the supplementary report Dr Sommerville had regard to, amongst other things, the reports of Dr Maguire and Dr Patten. Under the heading "summary of opinion" Dr Sommerville wrote:

Mr Nuske had a claim for an injury on 05 February 2016 that was subsequently closed. On a delayed basis a second incident was reported.

I have carefully reviewed contemporaneous medical records. These include the incomplete general practitioner records. It is clear from these that there can be no support for an ongoing painful condition, particularly given the analgesics prescriptions noted, the lack of investigation and the lack of referral. 

In my opinion Mr Nuske has constitutional conditions that being degenerative change in the lumbar spine which is of a minor nature only. Mr Nuske has bilateral osteoarthritic hips with the right allegedly being symptomatic. Any exacerbation of these conditions sustained at a work event of 05 February or indeed at the work event variably reported on 19 March 2016 would have long since resolved.

It is documented within Mr Nuske’s medical records that his pain had resolved. It is readily apparent from his medical records that an ongoing severe painful condition cannot be supported. I suggest the reader take note of analgaesic prescriptions, as well as referrals, investigations, and mentions of pyshical complaints (including the considerable variability in back complaints versus hip complaints). The assertion that the injury of 19 March 2016 has resulted in a significant injury that is different to the events of 05 February 2016 cannot be readily supported.

In my opinion, Dr Maguire has failed to take into account the mechanism injuries. In my opinion Dr Maguire has failed to correlate the radiological findings with the clinical records and the portrayed level of symptomatology. I have noted that the symptoms appear to increase with the passage of time, particularly on a delayed basis. This is inconsistent with the natural history of an acute injury. I have noted the alleged site of origin and the symptoms varies. The presence of spasm on a delayed basis is not consistent with the natural history of an acute injury. It is consistent with ongoing degenerative processes. In my opinion Dr Maguire has failed to carefully review the opinions put forward by Dr Patten and myself, as well as incorporating review of the medical documentation into his overall opinion. It is inconceivable that ongoing complaints relate to the injuries describes of 05 February 2016 and 19 March 2016. Any such acute exacerbation is readily evident, according to his medical records, to have resolved. I am unable to comment on any psychological or psychiatric issues at play.  (emphasis added)

  1. [34]
    In the supplementary report Dr Sommerville was specifically asked:

3. Did Mr Nuske sustain an injury to his right hip as the result of the incident of 19 March 2016, or do I remain of the opinion in your report dated 06 September 2016?

I have found no compelling reason to alter my opinions of 06 September 2016, given the extensive further information provided to me.

  1. [35]
    Much of Dr Sommerville's evidence focused upon his view of the distinction between an "aggravation" and "exacerbation": 

Dr Sommerville:  an exacerbation, I’m talking about, is a temporary increase in the symptomatology related to something that’s not really been significant enough to alter the natural history or the course of the – the underlying disease, a sort of, temporary aggravation, if you want to use the words in somewhat               of an interchangeable fashion, whereas aggravation is related to an incident that actually does fundamentally alter the natural history of the disease process, either accelerate the – the symptoms or drastically alter the impairment [35]

    

 Mr Greggery QC:  All right.  Well, asking you now, the pain and the history that we’ve gone through, having regard to his attendance particularly two days later on the 21st and his description of that event, suggests a meaningful or material increase in symptoms following the event of the 19th of March, doesn’t               it?

 Dr Sommerville:  I think it means that his symptoms were increased, yes.  Does that mean there’s an aggravation rather than an exacerbation?  No, because we’ve got the benefit of the further record.

Mr Greggery QC: So you would accept this at the least, as I understand your evidence?

Dr Sommerville: I would accept that he had symptoms [indistinct] the 19th of March.  The consultation of the 21st of March, in my opinion, doesn’t actually refer to a second incident, but I accept that you’re suggesting there was one.  He clearly says the symptoms are worse, so yes, I accept that. 

   And I then follow through his remaining medical records and opinions, and the symptoms resolve, so that’s in keeping with a temporary exacerbation of an underlying complaint.

 Mr Greggery QC: And when you do say the symptoms resolve?

 Dr Sommerville:  Well, due to attendances and the time that I saw him, the records continue through.  In the later part of that year, there’s been no – no prescriptions at all, and in fact, very clearly, in December of that year it says “pain resolved”.

 Mr Greggery QC:  And so – so would you regard a six-month increase in pain levels requiring that type of analgesic treatment and other investigations and the like, if it resolves, as an exacerbation?

 Dr Sommerville: Yes, I would.[36]

  1. [36]
    Dr Sommerville’s opinion was that having regard to the increase in the appellant’s symptoms with the passage of time, particularly on a delayed basis, were inconsistent with the natural history of an acute injury. In his report of 10 July 2017 Dr Sommerville expressed the opinion:

The presence of spasm on a delayed basis, increased narcotic analgesics on a delayed basis and a reduction in range of motion on a delayed basis is not consistent with the natural history of an acute injury. It is consistent with ongoing degenerative processes.[37]

 Findings and Conclusion

  1. [37]
    Drs Maguire, Patten and Sommerville all agreed that the medical imaging revealed that the appellant had a pre-existing degenerative change in both hips.
  1. [38]
    I accept that the appellant had a degenerative disease namely a pre-existing degenerative change to the right hip. Notwithstanding this finding, the appellant must demonstrate for the purposes of s 32(3)(b) of the Act that his alleged aggravation of the pre-existing degenerative condition arose out of, or in the course of, his employment and that his employment was a significant contributing factor to that injury. Section 32(3)(b) defines the circumstances in which an aggravation may be regarded as an “injury” for the purposes of s 32.
  1. [39]
    The Commission needs to be satisfied that the appellant’s employment was a significant contributing factor to the occurrence of the injury. It is insufficient to establish that the employment was the setting in which the aggravation occurred or the appellant’s post-accident condition.[38]
  1. [40]
    For the purposes of s 32(1), where the Act speaks of employment being a significant contributing factor to the injury, significant is used in the sense of "important" or "of consequence".
  1. [41]
    The focus in this matter has, in large measure been on the distinction between whether there has been an exacerbation or aggravation of the appellant’s pre-existing degenerative condition as a consequence of the 19 March 2016 incident. However, in doing so, the more fundamental question of whether the appellant’s employment was a significant contributing factor has been ignored.
  1. [42]
    The meaning of the phrase "if the employment is a significant contributing factor to the injury" as it appeared in the Workers' Compensation Act 1926 (NSW) was considered by the High Court in Federal Broom Co Pty Ltd v Semlitch where Mr Justice Kitto said:

Where it is possible to identify as a contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc. It is in that sense that I should understand the language of the definition.[39]

  1. [43]
    Mr Justice Windeyer turned to a "more difficult question":

[W]as this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of 'the employment' as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.[40]

  1. [44]
    The term "employment" in s 32 of the Act refers to what the appellant actually did in his employment and not to the fact of being employed.
  1. [45]
    In Croning v Workers' Compensation Board of Queensland, de Jersey P (as his Honour then was) held that the employment needs to be a "real effective cause" of the injury and not merely the setting or background in which the injury occurs".[41] 
  1. [46]
    In Newberry v Suncorp Metway Insurance Ltd, Keane JA, with whom de Jersey CJ and Muir J agreed, said:

The requirement of s 32 of the WCRA that the employment significantly contribute to the injury is apt to require that the exigencies of the employment must contribute in some significant way to the occurrence of the injury which the claimant asserts was caused by the breach of duty of the person (not the employer) against whom the claim is made.[42]

His Honour later observed:

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

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 employment. It cannot, in my respectful opinion, sensibly be read as lessening the stringency of the latter or increasing the stringency of the former.[43]

  1. [47]
    In Carman v Q-COMP, Hall P said:

It must be remembered that Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181 is an often cited but ageing authority. The worker who was successful on the point of law about the content of 'aggravation' was unsuccessful on the facts. Pleming v Workers' Compensation Board of Queensland, ibid, 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.[44]

  1. [48]
    In Q-COMP v Green, Hall P observed that in interpreting s 32 of the Act "the critical phrase is 'a significant contributing factor'. The phrase cannot be equated with 'a significant cause'. If the phrase had that meaning, every injury falling within the phrase would also arise out of the employment."[45]
  1. [49]
    In Qantas Airways Ltd v Q-COMP, Hall P said:

It is important to bear in mind also that the adjective 'significant' qualifies the expression 'contributing factor'. The notion of 'contribution' in itself requires some linkage between the employment and the injury: compare Favelle Mort Limited v Murray (1975-1976) 133 CLR 580. In those circumstances, it seems to me that it would be wrong to place the meaning of 'significant contributing factor' so far towards the lower end of the spectrum that it carried the meaning of 'more than ephemeral or nominal'. Without treating s 14B of the Acts Interpretation Act 1954 as a directive to construe a Minister's Second Reading Speech rather than of the statute, I take the liberty of observing that 'strong' is not an appropriate word to use to indicate the positioning of the phrase 'significant contributing factor' within the spectrum of meaning. With hindsight, the words adopted in Q-Comp v Green (2008) 189 QGIG 747, viz., 'important' and 'of consequence', seem to me to be equally apposite. I should say also that I also doubt that if 'significant' carries the meaning of 'large', 'great', 'weighty' or 'substantial', the amendment would have achieved the objective referred to by the Minister of ameliorating the difficulties which the expression 'the major significant contributing factor' had caused in cases about the aggravation of pre-existing conditions.

On balance, I am not prepared to accept the submission that 'significant' bears the meaning of 'large', 'great' 'weighty' or 'substantial'. I regret that I am unable to be more precise than fixing the meaning of 'significant' as towards the lower end but not at the base of the spectrum, and (to the extent that adjectives may be used without supplanting the statutory language) using words such as 'strong', 'important' or 'of consequence'. However the task is to apply a statutory test. The task is not to conceptualise an idea.[46]

  1. [50]
    In Chattin v WorkCover Queensland,[47]  Williams P adopted the reasoning of Connolly J in Obstoj v Van de Loos[48] where his Honour said:

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. [51]
    Unfortunately, the lack of clarity surrounding the mechanism of the injury has clouded the medical opinion of the specialists called by both the appellant and respondent. For example, Dr Patten was never informed by the appellant of the injury on 19 March. The concern regarding this lack of clarity was clearly expressed by Dr Sommerville who noted the varying descriptions of the mechanism of injury stating that there was a “difficulty in ascertaining what was actually injured or potentially injured.”[49]
  1. [52]
    Nevertheless, in any case such as this where there is a conflict of expert evidence the Commission must, inevitably, prefer one opinion to another in order that a decision can be rendered.
  1. [53]
    Dr Maguire expressed the view that the appellant had underlying degenerative changes in the hip and that he sustained an exacerbation of the pathology. The onset of the symptoms was as a result of exacerbation.
  1. [54]
    Whilst Dr Maguire was not an advocate for the appellant, he was in my view an advocate for his own opinion. He described the report of Dr Sommerville as a “rant”. Notwithstanding that it differed from that of Dr Maguire, Dr Sommerville’s opinion was, in reality, a well-reasoned and considered one. I consider that Dr Maguire’s objectivity was, to a degree, impacted upon.
  1. [55]
    Dr Patten recorded that he agreed with Dr Maguire that "his right hip symptomatology is predominantly caused by pre-existing established constitutional degenerative hip osteoarthritis. This degeneration is likely the result of long-standing ‘cam impingement."[50]
  1. [56]
    Even Dr Maguire, an orthopaedic surgeon upon whose evidence the appellant relies, relevantly opined in his report of 18 May 2017 that the degenerative change in the appellant’s right hip pre-dated the injuries. Importantly, he attributed 80% as pre-existing and 20% related to the accidents.
  1. [57]
    Unlike what was said by Hall P in Ward v Q-COMP this is not a case where the appellant was asymptomatic prior to the incident on 19 March.[51]  The appellant’s employment did not, in my view, contribute in a significant way to rendering a previously asymptomatic degenerative condition, symptomatic. Indeed, the appellant had a history of pain prior to 19 March 2016. Notwithstanding the submission of the appellant, the clinical records of Dr Arora for 5 March 2016 note:

pain in the right buttock going down the right leg, sits a lot for work. Back: bilateral, tender, not swollen, restriction present, restricted ROM, slump positive.[52]

  1. [58]
    The medical records from Dr Bagari dated 21 March 2016 note that the appellant had attended for a “follow up” and that the pain in his hip and back “is getting worse”. The notation suggests, in my view, that the appellant had a history of pain which pre-dated the incident on 19 March.
  1. [59]
    Whilst there was an increase in the appellant’s symptomatology as reported on 21 March it does not necessarily follow that the increase was as a consequence of his employment as opposed to his underlying degenerative condition. This was clearly expressed in the following exchange between Counsel for the appellant and Dr Sommerville:

Mr Greggery QC:  But you accept that an incident, when you say the natural history of an event is that it resolves or improves compared to the natural history of a degenerative condition which degenerates?  

Dr Sommerville: And worsens.

Mr Greggery QC: Yes?

 Dr Sommerville: and has fluctuating symptoms      

 Mr Greggery QC: Yeah?     

 Dr Sommerville: exacerbated by activity, and sometimes not [indistinct]

Mr Greggery QC:  Yes, and but you accept that a traumatic event which might otherwise resolve can accelerate or bring on symptoms which didn’t exist?  

Dr Sommerville:  Well, that’s the definition of aggravation, so, yeah.

Mr Greggery QC:  All right?  

Dr Sommerville:  I agree with that definition, but in this circumstance I do not consider that to be the case.

Mr Greggery QC:  And you say that because he had some symptoms from the February event?  

Dr Sommerville:  No, no.  I didn’t say that at all.  I don’t recall saying that.

Mr Greggery QC:  Okay.  Sorry.  I might then just ask you to clarify why you say that?  

Dr Sommerville:  Because again, and I think I’ve said this on a number of occasions now, I’ve taken into account the nature of the injury, the timeliness of treatment, the treatment provided, the improvement, and – and the last two years of medical records.  I think, taking all of this into account, not just a specific singular part of it, leads to it – that conclusion.[53]

  1. [60]
    Dr Patten considered the report of Dr Sommerville and expressed the view that "we" could not identify a "clear injury" to the appellant’s right hip. Dr Patten was of the opinion that the pain that the appellant was experiencing was as a consequence of "an aggravation of his lower thoracolumbar spondylosis". It was considered by Dr Patten that the appellant’s "…right hip symptomatology related to some degenerative change…"[54]
  1. [61]
    In re-examination, Dr Patten said that irrespective of the mechanism of injury it was "plausible" that the appellant may have aggravated his pre-existing degenerative change.  In his report of 11 July 2018, Dr Patten said that an injurious event can cause an aggravation of the right hip. He wrote:

…it could be considered that during an injurious event the patient may have aggravated his right hip constitutional problem but to what extent depends on the event which occurred on 19th March 2016.[55]

  1. [62]
    However, it is clear from the above passages that Drs Patten and Sommerville did not consider that the appellant had suffered an aggravation of his right hip constitutional problem as a result of the 19 March incident. At the highest, it was considered "plausible" or a "possibility".
  1. [63]
    The Commission must be satisfied that it is more than "plausible" or "possible" in order for the appellant to succeed.
  1. [64]
    I accept that the evidence before the Commission was sufficient to establish that there was a "possibility" that the appellant's employment was a contributing factor to his personal injury. However, the evidence was not, in my view, sufficient to establish that the appellant’s employment was a significant contributing factor.[56] Accordingly, I am not satisfied that the appellant has suffered an "injury" within the meaning of s 32 of the Act.
  1. [65]
    The appellant has not discharged the onus of proving, on the balance of probabilities, that the respondent's decision should be set aside, and that his claim is one for acceptance. Accordingly, the appeal must be dismissed.
  1. [66]
    I make the following orders:
  1. The appeal is dismissed;
  2. The decision of the respondent dated 31 January 2017 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] Submissions of the Appellant filed 20 August 2018, para 1.

[2] T1-10 Ll 19-45.

[3] T1-11 L 29. 

[4] T1-11 Ll 36-37.

[5] T1-11 Ll 42-43.

[6] T1-12 L8.

[7] T1-12 Ll 20-25. 

[8] T1-13 Ll 4-6.

[9] Exhibit 5.

[10] T1-23 LL30-45 – T1-24 Ll 1-6.

[11] Exhibit 5.

[12] Exhibit 1.

[13] Exhibit 5.

[14] T1-26, L35.

[15] T1-26, L.42.

[16] T1-26, L.36; Ll.44-45.

[17] T1-19, Ll. 41-47.

[18] Submissions of the Appellant filed 20 August 2018, para 1.

[19] Exhibit 6.

[20] Exhibit 6, p 6.

[21] Exhibit 6, p 7.

[22] Exhibit 7.

[23] Exhibit 8.

[24] Exhibit 9.

[25] T2-20 Ll 14-16.

[26] Exhibit 8, p 1.

[27]  Exhibit 8, p 2.

[28] Exhibit 9.

[29] Exhibit 9.

[30] T2-21 Ll30-40.

[31] Exhibit 10.

[32] Exhibit 11.

[33] Exhibit 10, page 3.

[34] Exhibit 11, page 1.

[35] T2-24 Ll 37-43.

[36] T2-32 Ll13-37.

[37] Exhibit 11 at p 14.

[38] JBS Australia Pty Ltd v Q-COMP (C/2012/35).

[39] (1964) 110 CLR 626.

[40] Ibid, 632–3.

[41] (1997) 156 QGIG 100.

[42] [2006] 1 Qd R 519, 529.

[43]  Ibid, 532–3.

[44] (2007) 186 QGIG 512.

[45] (2008) 189 QGIG 747, 750.

[46] (2009) 191 QGIG 115

[47] (1999) 161 QGIG 531.

[48] Unreported, Supreme Court of Queensland, Connolly J, 13 April 1987.

[49]  T2-26, Ll.12-14.

[50] Exhibit 9.

[51] Theresa Helen Ward v Q-COMP (C/2011/39)

[52] Exhibit 5, p 16.

[53] T2-34, Ll.1-23.

[54] Exhibit 8, p 2.

[55] Exhibit 9 at p.2

[56] Davidson v Blackwood [2014] ICQ 008.

Close

Editorial Notes

  • Published Case Name:

    Nuske v Workers' Compensation Regulator

  • Shortened Case Name:

    Nuske v Workers' Compensation Regulator

  • MNC:

    [2019] QIRC 23

  • Court:

    QIRC

  • Judge(s):

    O'Connor VP

  • Date:

    22 Jan 2019

Appeal Status

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