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Montanari v Workers' Compensation Regulator[2019] QIRC 50

Montanari v Workers' Compensation Regulator[2019] QIRC 50

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Montanari v Workers' Compensation Regulator [2019] QIRC 050

PARTIES:

Montanari, Luigi Charles

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

 

WC/2017/213

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator 

DELIVERED ON:

HEARING DATES:

22 March 2019

7, 10, 11, 12 December 2018

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Black

ORDERS:

  1. The appeal is allowed.
  2. The decision of the regulator dated 30 October 2017 is set aside.
  3. Costs are reserved.

CATCHWORDS:

APPEAL AGAINST DECISION – physical injury – whether employment a significant contributing factor – whether injury caused by gym attendance, heavy lifting at work, a degenerative cervical spine, or the normal activities of daily life.

CASES:

Workers' Compensation and Rehabilitation Act 2003 s 32, s 550

APPEARANCES:

Mr G Cross, Counsel, instructed by Everingham Lawyers for the Appellant.

Mr T Nielsen, Counsel, directly instructed, for the Workers’ Compensation Regulator.

Decision

Introduction

  1. [1]
    At the time of injury, the appellant was employed by Fulton Hogan at their Narangba plant in the capacity of Plant Operator/Labourer.
  1. [2]
    The appellant said that he was injured at work on 6 April 2017 when he was engaged in shifting a fibreglass roll and jig weighing between 84.5kg and 107kg from the bucket of a front end loader onto a truck float.
  1. [3]
    The appellant first sought treatment for his injury at the Caboolture Hospital on 14 April 2017. Dr Mostert subsequently issued a workers' compensation medical certification on 19 April 2017 in which the workers' stated cause of injury was identified as "lifted roll".
  1. [4]
    The appellant completed a WorkCover Queensland claim form on 21 April 2017. In the form, the appellant identified the nature of injury as a "neck strain", stated that the injury was caused by "lifting", and said that he first reported his injury to his employer on 9 April 2017.

Matters in Contention

  1. [5]
    It was not in dispute that the appellant was a worker within the meaning of the Workers' Compensation and Rehabilitation Act 2003 (the WCR Act), and that he had suffered a personal injury in the form of a spinal related neck injury. 
  1. [6]
    The issue for resolution in the appeal is whether the employment was a significant contributing factor to the injury pursuant to s 32(1) of the WCR Act:

32 Meaning of injury

  1. (1)
    An injury is personal injury arising out of, or in the course of, employment if—
  1. (a)
    for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury.

Evidence

  1. [7]
    Evidence in the proceedings was given by the following persons:
  • Luigi Montanari (appellant);
  • Andrew Montanari (appellant's brother and co-worker);
  • Sheree Moroney (appellant's partner);
  • Dr Hartig (orthopaedic surgeon);
  • Dr Todman (neurologist);
  • Dr Mostert (general practitioner);
  • Dr Allen (general practitioner);
  • Dr Atkinson (neurosurgeon);
  • Dr Goode (occupational physician);
  • Martyn Spokes (appellant's foreman);
  • Bonnaine Clements (production foreman);
  • Robert Young (department manager);
  • Paul Patten (workshop manager);
  • Donna Brand (safety manager);
  • Amber Haigan (WorkCover claims representative).

Chronology

Employment before Fulton Hogan

  1. [8]
    The appellant had typically been employed in labouring or construction activities for most of his working life. He had worked in a variety of roles and locations. Roles included plant operating, welding and manual labouring, while locations included demolition sites, timber yards and construction sites.
  1. [9]
    The appellant suffered a disc protrusion in the lumbar spine in 2003 while doing labouring work and while moving heavy rocks.

Duties and responsibilities

  1. [10]
    The appellant was employed by Fulton Hogan as a plant operator/labourer. His job involved a mix of desk based duties and manual handing or labouring duties. The labouring duties included sweeping up, cleaning, and shovelling rocks. Desk type functions included activities in the control room.

Gym attendance

  1. [11]
    The interest in the appellant's gym activities arose from comments that the appellant allegedly made soon after 6 April 2017 to the effect that his condition may have been attributable to a gym session that he had engaged in prior to going to work on 6 April 2017.
  1. [12]
    It is not in dispute that, before commencing work at 5.30 pm on 6 April 2017, the appellant had attended at his gym at 1.45pm and that he remained at the gym for approximately one hour.
  1. [13]
    It was the appellant's evidence that he mainly did cardio exercises at the gym. He prepared a statement (Exhibit 1) which outlined which exercises he performed during his gym session on 6 April 2017. In short summary, the appellant started with hamstring stretches, completed 15 minutes on the treadmill, and undertook some work on the leg extension machine, before completing some shoulder stretches. He finished his session on the pec fly machine. The notable absence from the routine was any reference to the appellant's participation in the free lifting of weights.
  1. [14]
    In a statement to the appellant's lawyers, Ms Moroney had said that she and the appellant usually completed a "warm-up" together and then the appellant went off to do a weights circuit. When questioned about his involvement in weight lifting activities, the appellant's evidence was quite unsatisfactory. In the first instance he tried to suggest that weights or upper body building was never a part of his routine, before suggesting that his attendance at the gym was limited in time (T1-47):

So in terms of – in terms of – well how long have you been to the – the gym?  How long have you been going to the gym?When I was – I used to go work in the gym.  I’ve been going for   

Yeah.  For how long?  How many years?I don’t know, I started off maybe a year or two, but it was mainly to do with to get – to try and lose me stomach and trying to get fit.

Okay.  Well just going back to question I asked you, are you saying that you’ve only been to the gym for a year or two?It be – be more than that, I’ll say. 

Okay, well how long?Ten, maybe?

  1. [15]
    It is not in dispute that the appellant did not attend the gym after 6 April 2017. In a scenario where the onset of symptoms were delayed and the appellant may have been fit to attend the gym, the evidence did not explore the reason for his non-attendance in the two or three days immediately after the lifting event.

6 April 2017 (lifting incident)

  1. [16]
    On 6 April 2017, the appellant commenced work at 5.30 pm and finished his shift at 5.30 am the following day. Much of what occurred at work is not in dispute. At some point during the shift, on the instructions of Mr Spokes, the appellant and his brother assisted in the transfer of a roll of grid or mesh and an attached jig from a laydown area onto a truck float. While there was some contest about the weight of the roll, it was agreed that the attached jig weighed 62kg and that a full roll of mesh weighed 90kg. 
  1. [17]
    The difference in the estimates of the weight of the roll and jig was attributable to a difference about whether the roll was one quarter full or one half full. The respondent maintained that the roll was one-quarter of its total size, while the appellant said that it was one-half its full size. Without reconciling the differences in estimates, the effect of the evidence was that the total weight of the roll and jig ranged between 84.5 kg and 107 kg.
  1. [18]
    I prefer the respondent's evidence to the effect that the roll was one-quarter full.  This outcome was consistent with what Ms Brand recorded in her contemporaneous email of 20 April 2017, and was also consistent with the evidence of Andrew Montanari. The effect of this finding is that the total weight lifted in the incident at work on 6 April 2017 was 84.5 kg.
  1. [19]
    The appellant's description of what functions had to be performed to load the roll and jig onto the float, and the particular role played by the appellant in achieving that object were not in dispute. Suffice it to say that the roll and the jig had been lifted to the level of the float in the bucket of a front end loader and from there had been slid onto the float deck. The difficulty was that the width of the roll was wider than the width of the truck and the jig and roll had to be manoeuvred length wise along the float before the truck could safely commence its journey. Andrew Montanari and the truck drivers had initially taken on the task, but at some point the appellant's assistance was sought.
  1. [20]
    The appellant said that the task took about one and a half hours to complete and he provided the following description of the activities involved (T1-15): 

Are you at the back of the float or the front of the float?At the front of the float where the higher deck.  That was there and I was on the side of it, and that’s when the float driver said, “No, we can’t have this hanging out so far.”  So he said, “Can you pick it up and put it dead straight into the – into the – the float?”  So I’ve lifted up with me left arm and shoulder, manoeuvred it and then got it straight line with the – because the paver was there too, and then it was an awkward lift, and it was awkward because there’s other – other – I don’t know.  Look, I don’t know that thing is – what it is where the float is up the other end where it connects to the semi-trailer, but that was awkward to put on that too, and then he said, “Look, could you push it underneath the paver?”  So we pushed it – pushed it under and got it there then left it as that.

9 April 2017 (notification of injury)

  1. [21]
    The appellant was off work on rostered days off on 7 April and 8 April 2017. He returned to work on 9 April 2017 at 5.00 pm and finished work at 5.00 am the following morning. Some time during his shift, he said that he told Mr Spokes about an injury (T1-18):

When did you report it to Marty Spokes?On the 9th.

Okay.  He was there on the 9th.  What did you say to him?I just told him that, “I think I’ve done something when I was lifting that jig because I’ve got a bit of a – sort of a pain in me neck.”

  1. [22]
    In Ms Brand's contemporaneously written email dated 20 April 2017, she said that while Ms Moroney intimated that the injury was reported the day following the lifting event, the appellant had, before his partner's intervention, said that the injury was reported two to three days after the lifting incident. The respondent's evidence however was generally to the effect that pain was first reported to Mr Spokes on 12 April 2017.

10, 11, and 12 April 2017

  1. [23]
    On 10 April 2017 the appellant commenced work at 5.30 pm and finished his shift at 5.00 am the following day. The appellant continued on night shift on 11 and 12 April 2017 but on these days eight hour shifts were worked. The appellant changed to day shift on 13 April 2017 and worked from 7.00 am to 3.30 pm.
  1. [24]
    It was Mr Spokes' evidence that the appellant first told him about his injury on 12 April 2017. He said that while he and the appellant were in the control room, the appellant told him that he had a sore neck. However, when the appellant was asked if the injury was work related, the appellant said that "he wasn't sure; he didn’t know". Mr Spokes accepted that when the appellant told him of his condition, he told the appellant to remain in the control room and not to undertake physical activities.
  1. [25]
    While Mr Spokes accepted that he had mistakenly nominated the date of the lifting event as 9 April 2017, he was confident that the appellant did not inform him of the injury until 12 April 2017 because this was the day before he left for his Easter holiday at Ballina.

14 April 2017

  1. [26]
    Despite the earlier instruction from Mr Spokes that the appellant should perform light duties or control room functions at Narangba, the appellant was rostered to work at Ormeau from 6.00 am to 2.30 pm on 14 April 2017.
  1. [27]
    In his evidence in the proceedings, Mr Patten said that he spoke to the appellant about 1.30pm on 14 April 2017 and that Andrew Montanari participated in the conversation. He said that he saw the appellant leaning against the side of a conveyor and asked the appellant whether everything was okay. It was then that the appellant told him about soreness around his neck and shoulder. When he asked the appellant how he had hurt himself, the appellant said that he did it at the gym the other night. Mr Patten denied that the appellant had said to him that he "didn’t do it here. I did it at Narangba". He also denied that the appellant told him that he had reported the injury to Mr Spokes or that Mr Spokes knew all about it. Andrew Montanari's evidence in the proceedings was that he did not recall any such conversation taking place.
  1. [28]
    It was Mr Patten's evidence that some time after this discussion, the appellant approached him and asked him if there was anything else that needed doing. Mr Patten said he told the appellant that there was nothing further to do and the appellant should go and get his neck checked out. In the incident report prepared by Ms Brand (Exhibit 6), the appellant is noted as saying that Mr Patten did not ask him why he was going to hospital. Such a state of affairs would not be unexpected if the appellant had earlier in the day (at 1.30 pm) informed Mr Patten of his condition. 
  1. [29]
    The appellant denied that he told Mr Patten that he had hurt himself at the gym. He said that he told Mr Patten at the conclusion of his shift, that he was going to the Caboolture Hospital. He said that he told Mr Patten that he "didn't do it here", and that Mr Patten should call Mr Spokes if he wanted clarification.
  1. [30]
    The appellant's record of attendance at the Caboolture Hospital (Exhibit 35) noted that the appellant presented with neck and arm pain. While the record identified a primary diagnosis of "Neck Sprain/Strain (Trauma Related)", an entry in the record stated that the patient "denied trauma – recent or previous". The record did not include any comment on causation, but it did note that the appellant worked as an "operator – desk based job". A denial of trauma and a reference to a desk-based job may not appear to be compatible with a work related lifting injury.
  1. [31]
    In his evidence, Mr Clements said that he received a phone call from the appellant around 4.30 pm on 14 April 2017 wanting to know if he was required at Ormeau the following day. When Mr Clements told the appellant that he was not required, the appellant said that was good because he had neck and shoulder pain. When he asked the appellant if his condition was work-related, Mr Clements said that the appellant told him that he was pretty sure that he had done it at the gym and that he was going to go to the hospital to get his condition checked out. 
  1. [32]
    Mr Clements said that the appellant rang him on 15 April 2017 to tell him that he had been to hospital and that his condition wasn't too good. However, in a statutory declaration dated 11 July 2017, Mr Clements wrote that when the appellant phoned him on 15 April 2017 he told him that he had just informed Mr Spokes about his shoulder and neck condition.
  1. [33]
    The appellant's evidence was different. He said that he had a phone conversation with Mr Clements while he was at the hospital on 14 April 2017. He said that he told Mr Clements that he did not injure himself at Ormeau and that Mr Clements should talk to Marty Spokes who knows what happened. He denied that he told Mr Clements that he had injured his neck at the gym.

15 April 2017

  1. [34]
    It was the evidence of both Mr Clements and Mr Spokes that the appellant made phone calls to them on 15 April 2017. The appellant however said that he did not recall any conversation with either Mr Spokes or Mr Clements on 15 April 2017.
  1. [35]
    It was Mr Spokes' evidence, that after his conversation with the appellant on 12 April 2017, he did not speak to the appellant until 15 April 2017 when the appellant telephoned him while he was on holidays at Ballina. On Mr Spokes' evidence, this was the first time that the appellant had said that his injury was work-related (T2-15):

And did he tell you why he was calling you?Just to let me know that he was at the hospital that night for the pain in his neck. 

Okay. And can you tell the Commission what conversation – well, what the substance of the conversation was?So he rang me to say he spent the night at the hospital for the pain in his neck.  I asked him again if it was work related.  He said he wasn’t sure but he said it may have been from lifting that roll of GlasGrid. 

And when he said “lifting that roll of GlasGrid” did you know what he meant by that?Yes.  When I phoned them on the 9th to put a roll of GlasGrid on a truck

  1. [36]
    On 15 April 2017, the appellant attended on his general practitioner, Dr Allen. The medical record (Exhibit 15) relevantly provides that the appellant reported a "seven day history of quite severe neck discomfort no trauma but may have lifted something here be (sic) at work gradual onset of discomfort attended the Hospital last night who were not helpful". A diagnosis of "disc protrusion with nerve entrapment" was entered.

18 April 2017

  1. [37]
    Mr Young said that he first became aware of the appellant's claim that he may have injured himself while lifting the roll and jig when he received a report over the telephone from Mr Spokes on 18 April 2017. Mr Young said that he was informed by Mr Spokes that the appellant reported to him on Saturday 15 April 2017 that the injury may be work related.
  1. [38]
    Mr Young accepted that Mr Spokes told him that the appellant may have injured himself at work on Sunday 9 April 2017 while he was lifting a glass grid roll and its holding frame onto a truck. He was also told by Mr Spokes that the roll was a heavy and awkward to lift and that it may have caused the appellant's sore neck. Mr Young agreed that Mr Spokes did not tell him that the injury had occurred in the gym or may have been related to the gym.
  1. [39]
    It was Mr Young's evidence that after he was briefed by Mr Spokes he placed a phone call to the appellant. This call was subsequently responded to by the appellant's partner, Ms Maroney. Mr Young said that when Ms Maroney called him on 18 April 2017, she told him that the appellant wasn't sure whether the injury was caused at work or at the gym.
  1. [40]
    In her evidence, Ms Moroney said that while she recalled a telephone conversation with Mr Young, she did not recall him asking her how the appellant was injured and she denied telling Mr Young that the appellant was unsure whether the injury occurred at work or at the gym.

19 April 2017

  1. [41]
    The medical records of the Caboolture Super Clinic (Exhibit 15) show that the appellant completed an MRI at 8.32 am on 19 April 2019 before attending on Dr Mostert at 12.57 pm where Dr Mostert informed the appellant of the MRI result.
  1. [42]
    The consultation notes reveal that the appellant told Dr Mostert that his injury had happened at work on 6 April 2017 and was caused by lifting a roll. Entries in the notes referred to a "broadbased disc protrusion of the C5/6 level with annular tear" and to compression of the exiting nerve. A further entry noted that pain was not experienced while lifting, but came on three days later. 
  1. [43]
    In his evidence in the proceedings, Mr Young said that he received a phone call from the appellant on 19 April 2017. As I follow the chronology of events, this phone call would have taken place after the appellant had attended on Dr Mostert. Mr Young gave the following evidence about the phone call (T2-38):

And can you tell the Commissioner what Luigi said to you?Yeah.  So Luigi had confirmed that he had attended an MRI scan that day.  He told me that they had found a bulge on the disc area.  I think they say C5/C6.  So he informed me that.  Then I asked him how did he feel he hurt himself.  He has told me he wasn’t sure whether it was at work or the gym.  He then told me that he didn’t feel it would be the gym because he hadn’t attended the gym for about two weeks, so the only thing that he felt may have caused it was he was doing some lifting work, lifting this fabric and the applicator unit itself onto a truck.  So he felt that may have – may have caused it.

And did you have any discussions with him about whether he’d reported the injury or told anyone about it?Yeah.  Yeah.  So I asked him whether he had reported it, sort of, at the time of the incident date that he felt it was.  He said that he hadn’t felt the pain till about the Wednesday or Thursday before that long weekend, which I think is about the 13th or 14th of April.  He told me that he felt, at the time, that it may have been a pulled muscle from gym work.

  1. [44]
    There are minor differences in this evidence from what was said by Mr Young in a 12 July 2017 statutory declaration. In the statutory declaration, Mr Young said that the appellant told him during the phone conversation on 19 April 2017 that he did not experience any pain until around 12 or 13 April 2017 and that the only thing that he could think of that may have caused the injury was the lifting that he had completed on 9 April 2017.
  1. [45]
    The appellant however said that he did not recall any phone conversation with Mr Young on 19 April 2017 and he denied telling Mr Young that he was not sure if the injury occurred at work or at the gym.

20 April 2017

  1. [46]
    It was Ms Brand's evidence that she visited the appellant at his home on 20 April 2017. A record of her discussion with the appellant and Ms Moroney was provided by an email written by Ms Brand on the same day (Exhibit 26). In the email, Ms Brand relevantly states that:
  • She had visited the appellant at home to get the appellant's version of events "as the cause has changed from what was originally reported to Fulton Hogan";
  • The appellant thought that the date of injury was 6 April 2017;
  • The appellant said that he did not feel anything at the time except maybe a pinch on the left side of his neck;
  • The appellant said that the roll lifted on 6 April 2017 was one quarter of a full roll;
  • The appellant said that he reported the injury to Mr Spokes two to three days after the lifting event. Ms Moroney said that the injury was reported on 7 April 2017;
  • The appellant said that he told Mr Spokes that he had a sore neck from the awkward lifting. Mr Spokes in return told the appellant that he was to work in the control room;
  • The appellant said that he worked at Ormeau on 14 April 2017 from 6.00 am to 2.00 pm putting rubbers on a conveyor. He said that his neck was sore and that he could not raise his left arm. He said that Andrew Montanari did all the manual labouring work.
  1. [47]
    An undated incident report form is in the evidence as Exhibit 6. Ms Brand said that she completed the report approximately two weeks after the lifting event. The incident report form is populated with information extracted from the email prepared by Ms Brand on 20 April 2017. It can be safely concluded that the incident report was prepared by Ms Brand sometime after her visit to the appellant's home on 20 April 2017.

21 April 2017

  1. [48]
    The appellant completed a claim form with WorkCover Queensland on 21 April 2017. In the form the appellant identified the nature of injury as a "neck strain" and said that the injury happened as a result of lifting on 6 April 2017. He wrote that he reported the injury to Mr Spokes and Mr Clements on 9 April 2017.

26 April 2017

  1. [49]
    An unsigned email dated 26 April 2017 (Exhibit 27) purported to be a statement made by Andrew Montanari in relation to the appellant's injury. In the email which was sent to Donna Brand from [email protected], the writer states that Andrew Montanari and the appellant were involved in a lift of glass grid and a frame attachment on 9 April 2017. After describing how the lift occurred the email stated that "on Wednesday 12th April Luigi was complaining about pain and stiffness in the back between his shoulders". No reference was made to pain or symptoms experienced during the loading activity.
  1. [50]
    Mr Spokes also provided a statement on the same day and using the same format (email to Ms Brand). In his statement (Exhibit 24), Mr Spokes provided a chronology in which he said in part that a lifting incident occurred on 9 April 2017; that the appellant told him on 12 April 2017 that his neck was sore and that the appellant was not sure what he had done; that the appellant phoned him on the morning of 15 April 2017 and said that he had gone to the hospital and had attended on his doctor for treatment; that the appellant said that he did not know if the injury was work related but that it might be caused by the lifting of a roll of glass grid on 9 April 2017; and that he felt no pain or discomfort while lifting the roll.
  1. [51]
    Andrew Montanari's email was despatched at 8.37 pm while Mr Spokes' email was sent at 11.39 pm.  It appeared that both men were working on the night shift. There was no evidence of any collaboration or exchange of recollections, but it is noted that both versions identified a complaint by the appellant about pain on 12 April 2017, and both versions said that the lifting event occurred on 9 April 2017. 
  1. [52]
    It was Ms Brand's evidence that she would have requested either the divisional manager, Mr Young, or Mr Spokes "to get everybody involved to send through statements of their terms of the event". She had no reason to believe that the email that she received that included the statement of Andrew Montanari came from anyone other than Andrew Montanari.
  1. [53]
    Andrew Montanari denied that he made this statement or sent the email. While it would be logical to expect that, in any incident investigation, a co-worker who witnessed the incident would be required to provide a statement, Andrew Montanari denied that Ms Brand ever spoke to him about the lifting event.  
  1. [54]
    The WorkCover claims representative, Ms Haigan, gave evidence that she made a phone call to the appellant on 26 August 2017. Her record of the exchanges is in the evidence as Exhibit 34. The effect of the record, in part, was that the appellant said that while he felt nothing while completing the lift on 6 April 2017, he said that he felt a pinch in the left "traps" three days later. The appellant said that he was just doing desk work at the time when he noticed pain while lifting his left shoulder.

Medical Evidence

  1. [55]
    Medical opinions to a varying extent were influenced by a history provided by the appellant. The most significant differences in terms of the factual findings were the appellant's description of gym activities and the appellant's claim that the roll of fibreglass grid was half-full, not one quarter full.

Appendix 1 (gym activities)

  1. [56]
    The respondent disputed the credibility of the appellant's version of his gym activities on 6 April 2017. There is little doubt that the version is self-serving. It was crafted well after the event and for the purpose of bolstering the appellant's case by diminishing the significance of gym attendance on 6 April 2016 in circumstances where the evidence supported a finding that the appellant did tell co-workers that he was unsure about the cause of injury and that gym activities may have been the cause; and where medical practitioners were being asked to form opinions about probability.
  1. [57]
    The appendix's credibility was tested by both the appellant's and Ms Moroney's claims that the appellant's gym routine did not include the lifting of weights or the lifting of weights above shoulder height. Credibility was also tested by an inconsistency in Ms Moroney's evidence to the extent that she maintained her position on the appellant's gym routine despite saying in an earlier statement provided to the appellant's lawyers that the appellant did a weights circuit.
  1. [58]
    Dr Atkinson acknowledged the point when he said that his opinion about causation would be optimally informed by an accurate history of what transpired at the gym and at work, and that the opinion might change depending on the weight being lifted at the gym, the manner of lifting weights or the type of lift, the awkwardness of the lift at work, and on the extent to which the lifting at work involved two persons. The relevance of an accurate history was also apparent in the file note of a conversation between Dr Todman and the appellant's lawyers where Dr Todman was asked about the relevance of the appellant's attendance at a "cardio gym session" either "on the day of the incident or some days prior". The effect of Dr Todman's response was that if it were only the exercises shown in Exhibit 1, then the lifting event was probably more causative of the injury.
  1. [59]
    A suspicion that the appellant would have been actively engaged in a weights circuit arises from observations made by Dr Hartig in his 26 April 2017 report (Exhibit 11) where he described the appellant as a "heavy muscled gentleman".
  1. [60]
    The possibility of a gym related cause of injury had been canvassed with Dr Hartig by WorkCover as early as 12 June 2017. It is noted that no information was provided about the regime followed by the appellant while at the gym on 6 April 2017. In his response dated 14 June 2017 (Exhibit 13), Dr Hartig said that he preferred the lifting event as the more likely cause:

Without knowing specifically what Mr Montanari was doing at the gym it is difficult to ascertain which event is more likely to have caused Mr Montanari's injury. Having said this if his description of lifting 100kg with another worker is correct this: represents a super physiological load and is probably causative in his injury.

  1. [61]
    WorkCover also asked Dr Goode to provide an opinion on whether the appellant's injury may have resulted from the appellant's attendance at the gym on 6 April 2017. In its referral to Dr Goode on 23 June 2017 (Exhibit 31), WorkCover provided Dr Goode with a history which included the appellant's attendance at the gym before going to work, a lifting event on 6 April 2017, the onset of pain on 9 April 2017, a reporting to a manager on 14 April 2017 of a gym related injury, a reporting to Caboolture Hospital on 14 April 2017 to the effect that "no notable event" caused the injury; and a reporting to a general practitioner on 15 April 2017 to the effect that the injury was related to the 6 April 2017 lifting event.
  1. [62]
    In respect to the gym attendance, WorkCover asked Dr Goode to consider that the appellant went to the gym on the morning of the lifting event and the appellant "completed his normal set of warm up cardio and weights". The effect of Dr Goode's conclusion was that despite the inconsistencies in the history provided by the appellant, on the balance of probabilities, the lifting event was the significant contributing factor to the injury.
  1. [63]
    Dr Todman did not examine the appellant until 6 March 2018 when he was asked by the appellant's lawyers to complete a medico legal report. In terms of the appellant's gym activities, Dr Todman opined (T2-10):

And I would suggest to you that attendance at the gym to do a weight circuit is something that’s quite significant for a doctor to know when one is trying to work out the cause of an injury, isn’t it?Well, I would agree with that.  But I think obviously the correlation is if he did something that he’s always done in the past and on this particular day he experienced symptoms at the time of doing it I would think that would, you know, be something that would be worthy of reporting.  But if he didn’t the fact that he didn’t tell me that he had been to the gym that morning I don’t think is significant. 

Well, it would depend what he did at the gym, I would suggest, Doctor?Well, yes.  It would.  But I think more importantly it would depend whether he experienced these symptoms at the time of doing [indistinct] at the gym. 

Delayed onset

  1. [64]
    It was accepted that the history provided by the appellant that significant pain was not experienced until a few days after the lifting event at work, was consistent with medical findings. Dr Goode, in his report dated 24 June 2017 (Exhibit 32), had concurred with Dr Hartig in opining that it might take a few days following upon an acute cervical disc prolapse "for the paraspinal muscle spasm and any associated radiculopathy to actually clinically evolve". Dr Todman's evidence was similar. He was reported as saying (Exhibit 23) that symptoms could emerge some days later. He said that it was not unusual to have little or no pain initially and then have moderate pain increasing in the days that follow the disc protrusion.

Spontaneous onset

  1. [65]
    It was Dr Todman's evidence that a disk protrusion can occur spontaneously in the absence of any particular traumatic incident. He said that the condition could arise from any activity of daily living and it was a matter of probability whether any particular incident or event might be the cause.
  1. [66]
    Dr Hartig accepted that disc protrusions can come on spontaneously with a significant trauma and that activities at the gym could bring on a disc protrusion.
  1. [67]
    In a discussion between the respondent and Dr Atkinson on 20 September 2018 (Exhibit 40), Dr Atkinson was asked whether the symptoms displayed by the appellant some days after the lifting event could have come on spontaneously due to the pre-existing degeneration of the appellant's cervical spine. In response, Dr Atkinson said that while a spontaneous onset was possible in these circumstances, it was more likely that the symptoms arose from a workplace or sporting incident.

Degenerative condition

  1. [68]
    Investigations into the appellant's condition included a CT scan taken on 18 April 2017 (Exhibit 30) and an MRI taken on 19 April 2017 (Exhibit 15). While the MRI report of the appellant's cervical spine noted that "no significant spondylosis" was seen, the report of the CT scan included a conclusion of "degenerative spondylosis C5/C6". Dr Todman noted in his evidence that while both the CT scan and the MRI scan reported findings which potentially might point toward age related or degenerative findings, the principal finding of the MRI scan was disc protrusions on the left at C5/6.
  1. [69]
    Dr Hartig first examined the appellant on 26 April 2017 on referral from Dr Mostert. In a report addressed to Dr Mostert and dated 26 April 2016, while Dr Hartig said that he had reviewed a CT scan taken on 18 April 2017 and an MRI taken on 19 April 2017, he did not comment on any degeneration. However, in a subsequent report prepared for WorkCover on 8 May 2017 (Exhibit 12), Dr Hartig responded to a question about whether the appellant's condition was caused by an event or by the natural progression of an underlying issue, in the following terms:

Mr Montanari describes a typical presentation of acute disc protrusion: delayed onset axial pain followed by radicular dysfunction over the course of some days. His history of mechanism of injury, examination findings and radiological investigations leave no doubt that this is a work-related acute disc protrusion.

  1. [70]
    Dr Goode had subsequently addressed the issue of degeneration in the report he prepared for the respondent on 31 August 2018. In this report, he said that the appellant's condition could wholly relate to the imaged underlying, pre-existing constitutional cervical spondylosis or could have been caused by gym activities. It was unclear at this point, whether Dr Goode was addressing the subject as a possibility, or whether he was entering a conclusion on causation having regard to all the possible factors. 
  1. [71]
    In his evidence in the proceedings, Dr Hartig acknowledged the possibility surfaced by Dr Goode, but opined that more likely cause of injury was the lifting event (T1-75):

Do you agree with that?While that statement is true in detail, it’s the – the CT which you’ve already quoted doesn’t actually demonstrate any evidence of osteophytosis.  And an old MRI which actually hasn’t been reported on system – the same system from 2013 – demonstrates that there is disc degeneration at that level, so that’s longstanding without any evidence of protrusion.  So I accept that it is possible, and it’s one of the most – it is a mechanism that can occur – but the presence of the disc protrusion of this gentleman fitting with his history and with an examination means that, although it is possible that spondylosis in isolation can cause this, that it’s significantly less likely.

  1. [72]
    It was Dr Todman's evidence that, as a general proposition, he would not expect to find a lot of age related degenerative changes in someone relatively young as was the appellant. Dr Todman did not accept Dr Goode's evidence that the appellant's condition could be entirely attributable to underlying, pre-existing, constitutional cervical spondylosis/degeneration (T2-11):

Do you agree with that that it’s a possibility?I take a different view as is expressed in more detail in my report.  Certainly someone who is older can have age related changes which over a period of time or spontaneously might cause symptoms like this but of course Mr Montanari is a relatively young man and the changes that are present are principally – the most significant finding is disk protrusion associated with an annular tear and most often that occurs from an injury rather than something spontaneously or because of age.

  1. [73]
    In terms of the contribution made by a degenerative condition to the appellant's condition, it was Dr Mostert's opinion (T1-82):

In regard to the proposition that my learned friend put to you that it could happen without stress or trauma, your comment in regard to the level of degeneration, there’s no undue level of degeneration with Mr Montanari, of what relevance does it have that he has not a significant amount of degeneration?  Paragraph 3 of your file note?Yes – yeah, so I would – according to note he had some degree of spondylosis which is osteoarthritis, wear and tear in his neck, which I did not find uncommon for his age, and that [indistinct] where some degree of degenerative changes will – will cause a more likelihood of annular tear and rupture of a disc.  So I did not think that his degree of osteoarthritis was a big factor in what’s happened although it does play a role.

  1. [74]
    Dr Allen accepted that depending on the extent of degeneration in the disc, minor strains can cause a disc prolapse. It followed that activities in a gymnasium could cause a disc prolapse. He said however that the "younger the patient the more health the disc and therefore the more unlikely that simple, minor strains would cause a disc to rupture".
  1. [75]
    While Dr Atkinson had in effect found that the appellant's cervical spine was in a degenerative condition, he nevertheless attributed the injury to the lifting event. He had examined the appellant on 25 October 2017 and had formed the opinion (Exhibit 37) that "the reported heavy lift on the evening of 6 April 2017 probably caused the aggravation of his cervical spine condition although his symptoms did not develop for several days".

Employment as a significant contributing factor

  1. [76]
    It was common ground across the medical evidence that, in terms of possibilities, the appellant's disc prolapse could have come on spontaneously without a significant trauma; could have been related to underlying, pre-existing, constitutional cervical spondylosis; or could have been caused by gym activities or by the lifting event at work on April 6 2017.
  1. [77]
    The weight of the medical evidence however favoured a conclusion that the lifting event was the more likely cause of the appellant's injury, and that the lifting event should be considered a significant contributing factor to the development of the injury.
  1. [78]
    The possibility that the employment may not have been a significant contributing factor to the appellant's injury first emerged in May 2017 when WorkCover asked Dr Hartig whether the appellant's condition may have been caused by the natural progression of an underlying issue. Dr Hartig concluded that based on his examination of the appellant, the history given by the appellant about the lifting event, and the radiological investigations, there was no doubt that the appellant's disc protrusion was work related. Subsequently, on 12 June 2017, WorkCover informed Dr Hartig about the appellant's gym attendances and asked Dr Hartig to advise on the possibility of the injury being related to gym activities. In response, Dr Hartig concluded that while it was very difficult to ascertain whether gym activities or the lifting event at work was likely to have caused the injury, he was inclined to suspect that the lifting event was the cause. 
  1. [79]
    A file note of a conference between Dr Hartig and the appellant's lawyers on 5 December 2018 (Exhibit 14) disclosed that while Dr Hartig agreed that it was possible that the appellant's injury was attributable to gym activities, such an outcome was unlikely. Nor did Dr Hartig consider that any degeneration of the appellant's cervical spine was the likely cause of injury. Of the available causation scenarios, Dr Hartig said that the 6 April 2017 lifting event was the more probable cause.
  1. [80]
    In his evidence in the proceedings, Dr Hartig expressed a doubt about the correlation between weight lifting equipment and disc herniation and favoured a conclusion that the lifting event caused the herniation (T1-76):

… it is entirely possible that as you have previously mentioned, that a disc can herniate under conditions of no stress whatsoever and it can herniate the disc under conditions of normal physiological load such as the gym, but it seems more plausible that it would herniate under conditions of super abnormal load.

  1. [81]
    In his first opinion provided to WorkCover on 24 June 2017 (Exhibit 32) Dr Goode considered whether the lifting event or gym activities was the more likely cause of the appellant's injury. He concluded that, despite the inconsistencies in the history reported by the appellant, it seemed medically reasonable, on the balance of probabilities, to accept that the 6 April 2017 incident "was a significant contributing factor in the genesis of the claimant's C5-6 disc prolapse". Dr Goode also opined that there was "insufficient evidence to suggest that any other event was also a significant contributing/aggravating" factor.
  1. [82]
    In his independent medical report dated 31 October 2017, Dr Atkinson diagnosed the appellant's injury as "an aggravation of the pre-existing degenerative change in the cervical spine at C5/6 with a left radiculopathy", and said that the lifting event on 6 April 2017 was the cause of the appellant's injury.
  1. [83]
    Dr Atkinson was asked by the respondent to revisit his opinion on 20 September 2018. A file note in the evidence as Exhibit 40 provides a summary of a discussion held between the respondent and Dr Atkinson on that date. In the file note Dr Atkinson said that while it was possible that the appellant's symptoms could have come on spontaneously due to the degenerative condition of the appellant's cervical spine, he considered that it was more likely that the injury was caused by a workplace or sporting incident.  This opinion was subsequently clarified during Dr Atkinson's evidence in the proceedings when Dr Atkinson accepted (T3-9) that it was more likely that the appellant's injury was sustained in the lifting event rather than as a result of the appellant's visit to the gym:

That the injury in the gym was not impossible but would be extraordinarily unlikely?I don’t think extraordinarily, because we often have people who have – have minor incidents in domestic situations just like lifting a bucket of water of 10 kilograms or – or people slipping in the gym or – or jerking themselves in the gym.  I mean, these domestic things can cause cervical disc injuries.  But I – I have agreed that it’s – it’s more likely that if – if 100 kilograms is more likely to be dangerous.

  1. [84]
    Dr Atkinson however qualified his evidence to the extent that the reliability of any opinion is commensurate with the reliability of the history provided whether it relate to gym activities or the lifting event.
  1. [85]
    The respondent had also asked Dr Goode to revisit the issue around August 2018 when an appeals officer from the respondent asked Dr Goode to provide a further report. Having regard to the extent of the brief provided by the respondent, it appears that Dr Goode was asked in effect to complete a full file review of the appellant's claim for workers' compensation before being asked to answer specific questions related to causation. In responding to the specific questions on 31 August 2018 (Exhibit 33), Dr Goode opined:
  1. (a)
    That the appellant's injury could have been caused by gym activities "especially in the context of the pre-existing spondylosis";
  2. (b)
    That the appellant's symptoms could possibly be wholly related to the underlying, pre-existing, constitutional cervical spondylosis;
  3. (c)
    That there were three possible mechanisms of injury (gym activities, lifting event, and pre-existing degeneration). That some or all of the three mechanisms could apply in combination, but in this event the degenerative mechanism was likely to predominate;
  4. (d)
    That it was important to have a reliable history about the relevant events in making a determination about whether work was a significant contributing factor; and
  5. (e)
    That the appellant had not provided a reliable history.
  1. [86]
    It is difficult to reconcile the August 2018 report of Dr Goode with his earlier report of June 2017. In his August 2018 report he identified three possible mechanisms of injury, while his 2017 report was confined to a consideration of two possible mechanisms (gym activities and the lifting event). In the circumstances, the effect of his 2018 report appears to be that the degenerative condition of the appellant's spine has been added as a mechanism for consideration.
  1. [87]
    In his evidence in the proceedings, Dr Goode dealt with this issue by stating that while existing cervical spondylosis degeneration predisposes a person to an acute event, "that doesn’t take away from the fact that the described work-related event was a significant contributing factor in the circumstances".
  1. [88]
    Consistent with this view, Dr Goode said in his evidence that the opinion that he had originally formed in June 2017 had not changed and it remained his opinion that the work event was a significant contributing factor to the injury.

Respondent’s Submissions

  1. [89]
    The respondent submitted that: 
  • The appellant was an unreliable witness. His recall was poor and his answers were often evasive. This evasiveness was demonstrated by the appellant's reluctance to accept his history of heavy work and its relevance to his 2003 lumbar spine injury; to his initial response that he only attended the gym for two years before conceding it was in fact ten years; in his refusal, despite his apparent musculature, to accept that weights were part of his gym routine; and in Dr Atkinson's observation that he was prone to exaggeration;
  • An inference can be drawn from the appellant's musculature as evidenced by Dr Hartig's report, Ms Moroney's evidence, the appellant's regular attendance at the gym over a long period of time, and the appellant's physical presentation in the witness box;
  • The exercises included in Exhibit 1 could not give rise to the appellant's heavily muscled frame. Given the unreliability of the appellant's evidence, the Commission can have no confidence about the factual basis for Exhibit 1 and the appellant's claim that his gym activities were limited in the suggested manner. It defied belief that the appellant's weights circuit was limited to the use of two machines;
  • The appellant's evidence as disclosed by Exhibit 1 was not consistent with a statement given by Ms Moroney to the appellant's lawyers on 1 June 2017 that the appellant completed a weights circuit. Appendix 1 could not be construed to include provision for a weights circuit. The exhibit was not credible;
  • Further, if it is accepted that Exhibit 1 cannot be relied on as a true representation of what occurred at the gym on 6 April 2017, neither can medical opinions which were formed or influenced by the Exhibit be relied on;
  • Given that the appellant had previously suffered a disc protrusion in his lumbar spine, he would have known that heavy lifting could cause a disc protrusion. Despite this he did not inform doctors that his injury was caused by a lifting event. The only reason he would not have done this would be if he genuinely thought that a lifting event was not involved;
  • The evidence supports a finding that the appellant was in significant doubt about what had caused his injury and that the appellant's first held belief was that the injury was caused in the gym;
  • The first mention of the appellant experiencing any symptoms at all as a result of the lifting event on 6 April 2017, was on 20 April 2017 when the appellant mentioned to Ms Brand that he felt a pinch during the lifting event. Other than this mention however, the matter is not raised again until the appellant sees Dr Todman for his lawyers, which the Commission would take as being part of the litigation process;
  • Andrew Montanari's statement to the appellant's lawyers on 5 July 2017 made no reference to the appellant experiencing any symptoms on 6 April 2017. The 5 July 2017 statement was Andrew Montanari's first version of events. This version suggested that the appellant's symptoms came on three days after the lifting event, which was consistent with what the appellant told a host of other witnesses;
  • If it was the case that three days after the lifting event the appellant experienced pain while sitting at his desk and after raising his arm, it is possible that the appellant's injury came on spontaneously, and in a manner unrelated to the lifting event;
  • While there was some difference of opinion among medical practitioners about the level of degeneration, Dr Atkinson thought that there was quite significant degeneration and characterised the injury as involving an aggravation of the degeneration;
  • Causation is best informed by a determination about when symptoms were first experienced. If the evidence establishes that the injury could be caused either by the gym or by the lifting event, then it’s a question of attributing the likelihood between the two, and that depends entirely upon the Commission's findings about the true nature of the gymnasium activities, and when the symptoms first came on. These findings do not suggest that the work event was the relevant one;
  • The appellant’s case fails because the appellant has not discharged the onus of proving to the requisite level of satisfaction that the work event was a significant contributing factor to the injury;
  • If the Commission is not satisfied that the appellant has established a credible and factual basis for his claim for compensation, then the medical evidence which relies on the appellant's reporting means nothing, and the appeal must fail. 

Appellant’s Submissions

  1. [90]
    The appellant submissions included the following key propositions:
  • There is no evidence that anything unusual or untoward occurred at the gym;
  • The appellant informed Mr Spokes on 9 April 2017 of the work-related lifting incident;
  • In circumstances where there was a delay in the onset of pain, it was not unreasonable for the appellant to exhibit some uncertainty about the cause of the injury. In a factual scenario where the lifting event occurred on 6 April 2017 and symptoms were experienced on 9 April 2017, some retrospective rumination by the appellant about what could have caused the pain is to be expected;
  • Nothing should turn on the possibility that the appellant was not sure what caused the injury because of the unanimity in the medical opinions. While a lay person might ponder whether the causative event occurred at the gym, or during a heavy and awkward lift at work, it was the opinion of the medical practitioners that the most likely cause of the injury was the lifting event at work;
  • All of the medical evidence accepted that the lifting event of 6 April 2017 constituted a significant contributing factor to the appellant's injury;
  • The medical evidence does not support a finding that the injury was caused by any underlying degenerative condition of the cervical spine. Dr Hartig said that the spine did not look particularly degenerative and that there had been no pre-existing injury. Dr Todman said that the appellant had little in the way of age-related degenerative changes. Dr Mostert said that there was no significant degeneration present. Dr Allen said that the vertical column was relatively free of degenerative change.

Findings 

  1. [91]
    Findings are necessary in relation to the following matters in contention:
  1. (i)
    Whether the appellant knew, believed or thought that the injury was attributable to his attendance at the gym on 6 April 2017;
  1. (ii)
    Whether the injury occurred at the gym;
  1. (iii)
    Whether the appellant felt any symptoms at all as a result of, or during, the lifting event of 6 April 2017;
  1. (iv)
    When the appellant first reported symptoms to his employer and when the appellant first informed his employer that the injury was work-related;
  1. (vi)
    What caused the appellant's injury.

Was the appellant unsure about causation?

  1. [92]
    In his 26 April 2017 email (Exhibit 24), Mr Spokes said that the appellant told him on 12 April 2017 that his neck was sore and that he wasn't sure what he had done.  Mr Spokes also said that the appellant told him on 15 April 2017 that he did not know if the injury was work related, that it may have been caused by the lifting of a roll of glass grid on 9 April 2017, but that he felt no pain or discomfort during the course of the lift.
  1. [93]
    Mr Patten said that when he asked the appellant on 14 April 2017 what had happened, the appellant said that he did it at the gym the other night. It was the effect of Mr Clements' evidence that when he asked the appellant on 14 April 2017 whether he had hurt himself at work, the appellant told him that he was pretty sure that the injury occurred at the gym.
  1. [94]
    Mr Young's evidence was that Ms Moroney told him on 18 April 2017 that the appellant wasn't sure whether the injury was caused at work or at the gym. Mr Young also said that the appellant told him on 19 April 2017 that he wasn’t sure whether the injury was done at work or at the gym.
  1. [95]
    I prefer the evidence of the respondents to the effect that the appellant communicated that he was not sure what caused his injury and whether the injury was work-related or not. In this regard the respondents evidence is consistent with the records of the appellant's attendance on the Caboolture Hospital on 14 April 2017 and his attendance on Dr Allen on 15 April 2017.
  1. [96]
    The record of attendance at the Caboolture Hospital did not include any comment on causation, but did note that the appellant worked as an "operator – desk based job". A denial of trauma and a reference to a desk-based job may not appear to be compatible with a work related lifting injury.
  1. [97]
    In his attendance on Dr Allen on 15 April 2017, the appellant reported that the injury may have been caused at work. This reporting provides the first objective evidence that the appellant associated his pain with an event at work. However, the record also provides evidence that as at 15 April 2017, the appellant remained unsure about causation.
  1. [98]
    The objective evidence of a reporting on 15 April 2017 of a possible association with work is consistent with Mr Spokes' evidence that the appellant first reported the possibility of a work-related cause on 15 April 2017.
  1. [99]
    The appellant's denial that he never expressed a doubt about causation and that he told Mr Spokes as early as 9 April 2017 that his symptoms were attributable to the lifting event on 6 April 2017 is implausible and involves a conscious effort to rewrite history.
  1. [100]
    I acknowledge that the versions of conversations on 14 April 2014 provided by Mr Patten and Mr Clements to the effect that the appellant was attributing causation to his gym activities is not consistent with the appellant's earlier reporting to Mr Spokes on 12 April 2017 when he did not make any mention of any association between his pain and the gym. The evidence is consistent however with a factual scenario in which the appellant was unsure about how the injury was sustained. I accept the evidence of Mr Clements and Mr Patten to the extent that the appellant told them that he was unsure about causation. I accept that the appellant may well have reflected on the possibility of a gym connection, but that he did not convey as a matter of certainty that his injury was sustained at the gym.
  1. [101]
    I find that the appellant was unsure, or did not know, how the injury occurred. In my view, in circumstances where I find that the appellant did not experience any symptoms or did not experience pain on 6 April 2017, and where the onset of pain did not follow for a number of days, the appellant was in genuine doubt about the cause of the pain when it did come on.

Did the injury occur at the gym?

  1. [102]
    I accept that an inference can be drawn that the appellant's gym routine did include a significant weights component. The inference is based on evidence about the appellant's age, gender, musculature, and his regularity of attendance at the gym over a long period of time.
  1. [103]
    Notwithstanding this, I accept that while the lifting of weights may have been a common or regular feature of his gym work, it does not necessarily follow that the appellant completed an onerous weight lifting program on 6 April 2017, or any weight lifting at all (other than to the extent conceded by the appellant).
  1. [104]
    The only evidence that the appellant may have suffered an injury at the gym is the evidence of some of the witnesses for the respondent who said that the appellant told them the injury occurred at the gym or may have occurred at the gym. Mr Patten was the only witness to testify to an unequivocal statement on the part of the appellant and I accept that when the appellant mentioned an association with the gym, he did so in the context of a possible connection not in a context where he was reporting an actual event.
  1. [105]
    In this regard it is relevant that none of the respondent's testimony about the appellant's reporting go much beyond a broad suggestion of possibility. It is more likely than not that if the appellant raised the gym as a possible cause he did so in a context where he held a doubt about causation in general. There was no suggestion that the appellant had identified a specific date of injury, nor that the appellant had described a specific exercise in the gym which he believed caused his injury.
  1. [106]
    Significantly, on the night of 6 April 2017, there was no evidence that the appellant carried an injury to work. No one suggested that the appellant was reluctant to assist with the lifting activity, nor that he was in any way impaired in the way that he went about what was a strenuous, difficult and awkward lift.
  1. [107]
    Finally, when the appellant first reported symptoms to Mr Spokes on or about 12 April 2017, he did not mention the possibility of a gym injury and simply told Mr Spokes that he was not sure how the injury happened. The evidence does not support a finding that the appellant's injury was caused by his attendance at the gym either on 6 April 2017 or at any other time.

First onset of symptoms

  1. [108]
    The evidence does not support a finding that the appellant experienced symptoms during the lifting event on 6 April 2016. There is nothing in the Caboolture Hospital records about a pinch being experienced on 6 April 2016, nor is there anything in the records of Dr Allen or Dr Mostert.
  1. [109]
    In his attendance on Dr Mostert on 19 April 2017, the appellant reported that there was no pain on 6 April 2017 and that pain started three days after. The appellant told WorkCover on 26 April 2017 that while he felt nothing when completing the lift on 6 April 2017, he felt a pinch in the left "traps" three days later. The appellant also told Dr Hartig on 26 April 2017 that the lifting event was "not immediately painful", and that pain came on three days later. I prefer this evidence to the evidence of Andrew Montanari on the subject and find that the onset of symptoms did not occur until some days after the 6 April 2017 lifting event.

Reporting of injury to the employer

  1. [110]
    There is a conflict in the evidence about when the appellant first reported symptoms of pain or discomfort to Mr Spokes. The appellant said that it was on 9 April 2017, while Mr Spokes said that it was 12 April 2016. The appellant suggested that because Mr Spokes had got the date of injury wrong, he must also have got the reporting date wrong. This does not necessarily follow and Mr Spokes was sure in his recollection that the reporting occurred on 12 April 2017 because this was the day before he went on his Easter holiday to Ballina.
  1. [111]
    If Andrew Montanari's statement dated 26 April 2017 is accepted, he said that the injury occurred on 9 April 2017 and said that the appellant complained on 12 April 2017 about pain and stiffness in the back between his shoulders. It was Mr Young's evidence that the appellant told him on 19 April 2017, that he first experienced pain on 12 or 13 April 2017. In circumstances where the appellant was motivated to attend the Caboolture Hospital on 14 April 2017, a reporting of pain to Mr Spokes on 12 April 2017 may be the more reliable date.
  1. [112]
    While the appellant may have experienced symptoms from 9 April 2017 onwards, in the context of gradually increasing pain, he may not have told Mr Spokes about his condition until a few days after the onset. It is accepted that when the appellant told Mr Spokes about his condition, Mr Spokes directed the appellant to restrict his work to duties in the control room. However, if the onset of symptoms occurred on 9 April 2017 and if at the time of onset the pain was not severe, it may be more likely than not that the appellant did not report pain to Mr Spokes until when pain increased and when a redirection to light duties may have been necessary.
  1. [113]
    On balance, I prefer the evidence of the respondent that the reporting of symptoms of pain to the employer first occurred on 12 April 2017.
  1. [114]
    Having regard to the records of the appellant's attendance at the Caboolture Hospital on 14 April 2017 and Dr Allen on 15 April 2017, I prefer Mr Spokes' evidence to the effect that the appellant first informed him on 15 April 2017 that his injury may be work related.
  1. [115]
    The Caboolture Hospital notes of 14 April 2017 do not make any specific or explicit reference to causation, while Dr Allen's notes indicate that the appellant said that that he may have lifted something at work. 
  1. [116]
    A notification to Mr Spokes on 15 April 2017 is also consistent with what Mr Clements said in a statutory declaration dated 11 July 2017. In the statutory declaration, Mr Clements said that the appellant rang him on 15 April 2017 "saying he was just ringing me as a courtesy call, because he had just informed Marty (Louie acting Forman) of his shoulder and neck".

 Causation

  1. [117]
    Given the findings that that the appellant was unsure about the particular event which caused the injury, and that the evidence was insufficient to support a finding that the injury was associated with gym activities, the appeal turns on a determination about causation and whether, on the balance of probabilities, the lifting event at work was a significant contributing factor to the injury.
  1. [118]
    While the appellant's attack on the credibility of Exhibit 1 is justified, and while it is true that in not portraying an accurate history, the Exhibit had the potential to diminish the weight to be attached to some of the medical evidence, it is important to note that both Dr Hartig and Dr Goode did not have Exhibit 1 before them when they gave opinions about the relative importance of gym activities in June 2017. On the evidence, Dr Hartig was provided with the records of the appellant's gym attendance with no commentary, while Dr Goode was told that the appellant went to the gym on 6 April 2017 and completed his normal set of warm up cardio and weights. In the presence of this unvarnished history, both Dr Hartig and Dr Goode had preferred the lifting event as the most likely cause of the injury.
  1. [119]
    That the lifting event occurred on 6 April 2017, and that it occurred in the manner described by the appellant, was not in dispute. At its core, the activity involved the appellant lifting, pulling or dragging, either on his own, or with the assistance of his brother, a roll and jig weighing approximately 84.5kg. The lifting event was a substantial activity, and its proximity to the onset of symptoms, suggests that it was more likely than not that it was a significant contributing factor to the appellant's injury. A finding to this effect is therefore consistent with the factual matrix.
  1. [120]
    Such a finding is also consistent with the medical evidence which had combed through a number of possible contributing factors and had concluded that, as a matter of probability, it was more likely than not that the injury was caused by the lifting event at work on 6 April 2016. The weight of the medical evidence clearly favoured a conclusion that the lifting event was a significant contributing factor to the injury. It follows that the appellant is entitled to succeed in his appeal.

Order

  1. [121]
    The appeal is allowed and the decision of the regulator's review unit dated 30 October 2017 is set aside and replaced by a decision that the appellant’s claim for compensation is one for acceptance.   
Close

Editorial Notes

  • Published Case Name:

    Montanari v Workers' Compensation Regulator

  • Shortened Case Name:

    Montanari v Workers' Compensation Regulator

  • MNC:

    [2019] QIRC 50

  • Court:

    QIRC

  • Judge(s):

    Black IC

  • Date:

    22 Mar 2019

Appeal Status

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

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