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J J Richards & Sons Pty Ltd v Workers' Compensation Regulator[2019] QIRC 98

J J Richards & Sons Pty Ltd v Workers' Compensation Regulator[2019] QIRC 98

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

J J Richards & Sons Pty Ltd v Workers' Compensation Regulator  [2019] QIRC 098

PARTIES:

J J Richards & Sons Pty Ltd

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2015/317

PROCEEDING:

Appeal

DELIVERED ON:

25 June 2019 

HEARING DATES:

4, 5, and 7 March 2019

MEMBER:

HEARD AT:

O'Connor VP

Townsville and Brisbane

ORDER:

  1. The appeal is dismissed;
  2. The decision of the Respondent dated 27 November 2015 is affirmed; and
  3. The Appellant is to pay the Respondent's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION – appeal against a decision of the Workers’ Compensation Regulator – where Appellant contends that the employment was not a significant contributing factor to the injury – appeal dismissed. 

LEGISLATION:

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

Workers' Compensation Act 1926 (NSW)

CASES:

Carman v Q-COMP (2007) 186 QGIG 512

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

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

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

Simon Blackwood (Workers’ Compensation Regulator) v Civeo Pty Ltd and Anor [2016] ICQ 001

APPEARANCES:

Mr C J Clark of Counsel instructed by Sparke Helmore for the Appellant

Mr S A McLeod QC directly instructed by the Respondent

Reasons for Decision

  1. [1]
    Donald Bergin was employed as a rubbish truck driver by the Appellant. The Appellant conducts a domestic garbage collection business in the Ayr and Home Hill Districts. On 30 October 2014, Mr Bergin suffered an injury described as an "acute rupture of the right biceps tendon whilst operating an Iveco Accor dual control truck".[1] An application for compensation with WorkCover was made on 27 November 2015. 
  1. [2]
    An "At Scene Incident Report" was made on 3 November 2014 and records:

While swinging out from behind a vehicle in the gutter, when I turned back in around it, I felt a sharp pain in right shoulder.[2]

  1. [3]
    It is not in dispute that:
  1. (a)
    Mr Bergin experienced some shoulder symptoms on 30 October 2014;
  2. (b)
    that Mr Bergin was able to continue his shift on 30 October 2014 which finished at "around" 3:00pm;
  3. (c)
    by the next day, the "shoulder was aching and when I got up in the morning it was even worse";
  4. (d)
    on 31 October 2014, Mr Bergin informed his supervisor, Mr Jeffery Woodford what had occurred on 30 October 2014; and
  5. (e)
    on 31 October 2014 Mr Bergin completed his usual duties.
  1. [4]
    The Respondent in its decision of 27 November 2015 accepted the application for compensation on the basis that his employment was 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.

Issues for determination

  1. [5]
    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. [6]
    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;

(iii) a medical condition if the condition becomes a personal injury or disease because of the aggravation;

  1. [7]
    What the Commission must determine is whether Mr Bergin’s "acute rupture of biceps tendon":
  1. (a)
    arose out of or in the course of his employment; and
  2. (b)
    whether his employment was a significant contributing factor to the injury.
  1. [8]
    In short, the Appellant contends that whilst the first limb of s 32 of the Workers’ Compensation and Rehabilitation Act 2003 "might be established", the second limb falls well short of being satisfied based upon a consideration of all of the factual and medical evidence.
  1. [9]
    Mr Bergin was referred by WorkCover on 4 May 2015 to the Medical Assessment Tribunal in accordance with s 501 of the Act. In the course of that assessment, Mr Bergin suggested that the steering mechanism in the truck may have been defective.[3]
  1. [10]
    At the hearing of this matter and, in response to that suggestion, the Appellant adduced evidence that the operation of the steering mechanism was not defective. The Respondent accepts that the power steering mechanism of the Iveco Accor dual control truck driven by Mr Bergin on 30 October 2014 was not defective and accordingly the issue does not need to be addressed in these reasons.

Did the injury arise out of or in the course of employment?

  1. [11]
    It is accepted by the Appellant that Mr Bergin experienced a sensation of pain in his right shoulder whilst performing his truck driving duties on 30 October 2014. However, the Appellant argues that Mr Bergin’s employment was not the significant contributing factor to the workplace injury, but rather it was due to a pre-existing degenerative condition in his right shoulder.
  1. [12]
    Mr Bergin was referred by WorkCover Queensland to Dr David Ness, Orthopaedic Surgeon for the purposes of obtaining an independent medico-legal report. Dr Ness examined Mr Bergin on 19 March 2015 and in his report of 26 March 2015 concluded that Mr Bergin was suffering from a degenerative disease affecting his right shoulder and symptoms of his underlying condition occurred when he turned the steering wheel. Dr Ness wrote in his report:

Having symptoms at work does not in itself constitute a work injury. Mr Bergin was simply turning the steering wheel with both hands and is normally able to turn the wheel of the truck with one hand. Turning the steering wheel is unlikely to have caused a structural change in his right shoulder. In other words I find that his action of turning the steering wheel is unlikely to have aggravated his underlying condition and that it simply caused mild pain at the time.

I find the current condition of Mr Bergin’s right shoulder to be due to degenerative disease and to be un related to employment. It has deteriorated in the same way that his left shoulder did one year ago.[4]

  1. [13]
    In examination-in-chief, Dr Ness was asked:

Mr Clark:All right. Okay. Well, let – let’s deal with it on this basis: if the power steering was working as it should, what do you say to the likelihood that, you know, the – the operations he described was steering one way, then the other, would rupture that biceps tendon?

Dr Ness:I think it’s not likely given that the – he was steering around a car that was parked. It wasn’t as if he was suddenly approached by a car and had to get out of a dangerous situation and suddenly pull. So just turning the wheel one way and then turning the other way to get around a stationary car that he’s seen in front of him, I think the force involved in there are not likely to rupture a biceps tendon[5]

  1. [14]
    Dr Ness went on to say:

Mr Clark:Okay. Is it in any way – the action of operating that steering wheel, is it in any way feasible that that could have caused the rupture of the – of the tendon, given the state of the degeneration?

Dr Ness:If you’re just looking at that alone, if you’re asking me is it possible, even remotely possible that it could have ruptured at that point, ignoring everything else, like the pain and it – just – just that – the mechanics of it, is it at all possible, you have to say, yes. It is possible. You can rule it out absolutely. My – the point of my report was – was that it was – well, I was more looking at the biceps tendon and the whole rotator cuff degeneration is that it was unlikely that that action aggravated the pre-existing degenerative disease.[6]

  1. [15]
    The following question was put to Dr Ness in cross-examination:

Mr McLeod: But would it be fair to say, and I suggest to you that whilst you say it might be unlikely or not likely, you cannot rule it out, can you, that the mechanism that Mr Bergin described to you could have caused the change in his right shoulder? I.e. The – the difficulty that he complained of?

Dr Ness: Yeah. Certainly. I cannot rule it out. I cannot say absolutely it didn’t happen.[7]

  1. [16]
    The Respondent relies on the expert evidence of Dr John Maguire, Mr Bergin’s treating Orthopaedic Surgeon.
  1. [17]
    Dr Maguire told the Commission that normally the biceps tendon, if it ruptures, has some degree of degenerative change within it. He said that a rupture can also occur through acute trauma.
  1. [18]
    Further in cross-examination, Dr Maguire was asked whether it was "fair to say" that if there was a rupture of the biceps tendon in circumstances as described by Mr Bergin it was "…clearly indicative of a very highly degenerative long head of biceps tendon." Dr Maguire replied:

Dr Maguire: I don’t think you can – no, it’s not fair to say. You can’t say that.

Mr Clark: Can’t say that?

Dr Maguire: It’s just making things up.

Mr Clark: I see. All right. But do you agree with me that there is – you don’t – you don’t accept the proposition that that tendon can rupture quite spontaneously?

Dr Maguire:It can’t rupture spontaneously, it’s very, very rare.[8]

  1. [19]
    It was Dr Maguire’s view that usually there must be some sort of triggering event to precipitate a rupture even in circumstances where there is a degenerate tendon.
  1. [20]
    In cross-examination, Dr Maguire was asked by counsel for the Appellant:

Mr Clark:And what’s your understanding of the triggering event, as you’ve called it here?

Dr Maguire:The – well, his mechanism of injury described – that he described to me, seemed very reasonable, and he was – it’s a – he was driving a rubbish truck, which I presume is similar to the ones we see driving around the streets picking up our rubbish, and he stated that he had to manoeuvre around something, and he was – had to put the wheel onto full lock, and then it sprang back. So he had a resistant supination event.[9]

  1. [21]
    Dr Maguire emphasised in his evidence that a tendon cannot rupture spontaneously. He told the Commission that even a minor event can be a triggering event.[10] Counsel for the Appellant drew Dr Maguire’s attention to the ultrasound report which is silent in respect of any rupture of the long head of biceps tendon.
  1. [22]
    It was Dr Maguire’s view that the ultrasound report was incorrect. He went on to explain the reasons for his opinion:

Dr Maguire:But when I looked at the tendon – the ultrasound, I can actually locate the long head of biceps. There is tendon, and there is a fluid level in the bicipital groove, suggesting that there is blood or fluid around the long head of biceps.

Mr Clark: Well?

Dr Maguire:So what I believe has happened there, is that the biceps tendon – the ultrasound can’t see the intra-articular extent of the long head of biceps, so you can rupture the biceps, and it can – the tendon rupture can stabilise itself in the bicipital groove, and then from that point, it can shorten up with very little effort. So I believe what’s – what he’s describing is that he’s ruptured his tendon, the tendon has retracted, it stayed in the groove, I can see it in the groove; he has an MRI scan which I ordered just after that, which shows that it’s then moved. He had fluid there, that I can see, and then when I first saw him, he had a – the Popeye sign, with the classical sign of a long head of biceps rupture.

Mr Clark: When did you look at the ultrasound imaging?

Dr Maguire:Yesterday.

Mr Clark: I see. Were you asked to do that?

Dr Maguire:No, I did it on – of my own accord.[11]

  1. [23]
    On 31 March 2015 WorkCover Queensland sought Dr Maguire’s comment on the report of Dr Ness of 26 March 2015. In the reply to WorkCover of 1 May 2015 Dr Maguire, after noting the unusual nature of the request, draws a distinction between his opinion and that of Dr Ness. In that correspondence he writes:

Dr Ness states in his report that he believes Mr Bergin’s injuries are not related to work and are associated with degenerative change within the shoulder. I felt that this is not correct. Mr Bergin has pathologies, the first being an acute disc protrusion in his neck giving radiating pain down his right arm and this has been confirmed on MRI scan. He does have some underlying degenerative change of the cervical spine, however the work injury has created significant aggravation of this and he has been referred for a neurological consultation in relation to this.

In reference to his shoulder, he has sustained an injury to his right shoulder with marked bursitis and a tear of the long head biceps. He does have some underlying degenerative changes within the shoulder but this is a significant aggravation of this and the biceps tear has occurred as a result of the acute injury.[12]

  1. [24]
    Dr Ness also recorded in his report that Mr Bergin had said that he "…felt the sting at the top and side of the right shoulder. Mr Bergin felt this again with the pushing action as he drove back to the kerb."[13] It was suggested to Dr Maguire that the description given by Mr Bergin that he "felt the sting at the top and side of the right shoulder" was not consistent with a rupture of the tendon. Dr Maguire rather robustly responded:

Dr Maguire:Complete rubbish. The majority of people – I’ve been doing this as a subspecialist in shoulder surgery. I’ve done fellowship courses with – all around the world. The majority of people who present with an acute rupture of the long head of biceps have superolateral pain. So – but it’s nonspecific as well. And even the tests that we use to isolate and to try and diagnose the problem are very, very low in their specificity. So one of the tests is actually doing the manoeuvre for the long head of biceps called Yergason’s test, and it’s only right in 30 per cent of the time. So people present with nonspecific pain, but they do have an acute pain when the thing ruptures and then it may stabilise if it retracts into the arm or it can stabilise in the bicipital groove.[14]

  1. [25]
    It is also contended by the Appellant that Mr Bergin’s history of pain and his ability to continue to work following the injury was inconsistent with the nature of the injury. Dr Maguire said 

Mr Clark: Okay. If he had ruptured the long head of biceps tendon on that date, the 30th of October, how disabling … would that have been?

Dr Maguire:People get – they get pain, but often, if they have had symptoms previous to that, it’s often quite a relief. But they usually get pain …. One of my rugby league players, he played an NRL game the same week, so – after rupturing his long head of bicep, so it can be disabling, but it’s variable.

Mr Clark: Okay. Well?

Dr Maguire:I don’t think I can say 100 per cent.

Mr Clark: Okay. Does it surprise you that this fellow returned to doing his normal duties?

Dr Maguire:No.

Mr Clark: I see. Does it surprise you that his GP certified him as being fit for his normal duties, as at the 6th of November?

Dr Maguire:No.

Mr Clark: I see?

Dr Maguire:I think what – as I said, with this particular gentleman, I think what’s happened is that it’s ruptured, his pain is relieved, because it actually isn’t a particularly disabling thing and the majority of people with a long head of biceps, many of them will actually go on and be able to do their normal activities. Most tradespeople end up with that as a problem, but it’s – you just can’t say for sure. So it doesn’t surprise me, no[15]

  1. [26]
    The Appellant contended that Dr Maguire’s opinion is predicated upon the history given by Mr Bergin that the steering mechanism was defective. This contention is grounded, in part, on the basis that Mr Bergin was said to have had to use some "forced action" when steering and that "some resistance" from the steering wheel.
  1. [27]
    As the evidence before the Commission establishes, that assumption is misplaced. In cross-examination, the following exchange took place:

Mr Clark:All right. So – and there was some resistance to him operating the steering wheel; is that so?

Dr Maguire:That’s correct.

Mr Clark:I see. Clearly – was he conveying to you that in some way, the power steering mechanism was defective?

Dr Maguire: No, he didn’t mention that – that I can remember.

Mr Clark: Okay. Has he ever said that to you on any subsequent occasion?

Dr Maguire: I can’t recall.[16]

  1. [28]
    Dr Maguire was informed by the Respondent in correspondence of 26 February 2015 to the effect that: "The trucks are modern garbage trucks, maintained to the highest degree"[17] 
  1. [29]
    It was further contended by the Appellant that there is "scant reference"[18] to the history given by Mr Bergin recorded by Dr Maguire in his reports tendered as part of his examination-in-chief. In support of that submission, the Appellant references exhibit 17 and 18. Exhibit 17 and 18 are both requests from WorkCover.
  1. [30]
    Exhibit 17 requested the views of Dr Maguire in relation to a number of specific questions. The facsimile of 26 February 2015 from WorkCover set out a history of the injury, the results of an MRI performed on Mr Bergin on 26 December 2014 and an opinion of Dr Hugh English, an orthopaedic surgeon. Relevantly, Dr Maguire was asked whether Mr Bergin’s current pathology or structural changes is caused by the reported workplace incident or due to a pre-existing condition. Dr Maguire answered: "Marked bursitis of the right shoulder, and tear of the long head of biceps."[19] Dr Maguire was further asked: "Was the event stated by Mr Bergin – turning a steering wheel in a truck – a significant contributing factor in causing this injury?" Dr Maguire answered "yes".
  1. [31]
    Exhibit 18 sought the professional views of Dr Maguire in relation to the report and conclusions of Dr Ness. It was not therefore, in my view, the occasion in which to undertake a recitation of Mr Bergin’s history.
  1. [32]
    Dr Maguire gave an overview of the mechanism of the injury in the letter of 5 March 2015 to Dr Ricardo Martinez, Mr Bergin’s general practitioner. In that letter Dr Maguire wrote:

I reviewed Donald today 02/03/15 in relation to his right shoulder. As you know he injured his right shoulder on the 6th November, 2014 when at work. He was driving a rubbish truck and the truck was on full lock. When he spun the steering wheel to move the truck around a parked vehicle, he developed a severe and sharp pain in his right shoulder.

Since that time Donald has had ongoing pain in his shoulder which has failed to resolve. He gets pain down his arm in the anterior shoulder region, down the lateral aspect of his arm and into the superior aspect and radial aspect of his hand. He also has a small defect in the long head of biceps with a classical Popeye sign event.

Examination shows forward flexion to 130 degrees which is limited by pain. Abduction is weak with pain. He is experiencing tingling in his right hand. The long head of biceps is obviously torn.

Donald has sustained a partial thickness tear of the rotator cuff but his major pathology is a long head of biceps rupture. He has secondary impingement and subacromial inflammation.[20]

  1. [33]
    I accept the submission of the Respondent that Dr Maguire’s understanding of the history of the injury reflected the history given by Mr Bergin to WorkCover and was informed, in part, by the correspondence from the Respondent of 26 February 2015. It must be borne in mind that neither the factual matrix or the mechanism of injury was complex.
  1. [34]
    I accept that the personal injury "arose out of or in course of his employment".
  1. [35]
    Whilst the evidence of Dr Ness was that the turning of the steering wheel was unlikely to have caused a structural change in Mr Bergin’s degenerate right shoulder, it could nevertheless cause his right shoulder to become symptomatic. Dr Ness was unable to rule out that the mechanism of injury described by Mr Bergin could be causative of his injury. Dr Maguire’s opinion, which I accept, is supportive of a conclusion that the manoeuvre undertaken by Mr Bergin when operating the Iveco Accor dual control truck was causative of his injury.

Was the employment a significant contributing factor

  1. [36]
    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 or background in which the injury occurred.[21]
  1. [37]
    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. [38]
    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.  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.

  1. [39]
    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.[22]

  1. [40]
    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.[23]

  1. [41]
    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.[24]

  1. [42]
    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.[25]

  1. [43]
    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. [44]
    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.[26]
  1. [45]
    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.[27]

  1. [46]
    More recently, in Blackwood v Civeo, Martin J wrote:

The test applied in determining whether employment was a significant contributing factor must be applied in a practical way. It is the "exigencies" of employment which must be considered and, while that will ordinarily include the contractual terms of engagement, it will generally require an analysis of the circumstances surrounding the employment. In this case, Mr Cumbers was practically obligated to stay at the camp in order that he might be able to perform his work. The Deputy President found that the offer of accommodation was an inducement to enter into the arrangement. It was, if not essential, a very sensible arrangement to enter into given the shift cycle of 10 days on and four days off.[28]

  1. [47]
    In the present case, the exigencies of the employment were that Mr Bergin was employed by the Appellant as a garbage truck driver to undertake domestic garbage collection in the Ayr and Home Hill Districts. The "requirement of connection between employment and injury" is provided by the fact that the Appellant required Mr Bergin to operate the Iveco Accor dual control truck. It was during the operation of the truck and the performance of the manoeuvre around the parked vehicle that the injury was sustained.
  1. [48]
    Dr Maguire accepts that the mechanism of injury described by Mr Bergin was a significant contributing factor to the injury. It was, to use Dr Maguire’s words "the triggering event".  

Conclusion

  1. [49]
    The Appellant bears the onus of establishing that Mr Bergin’s injury did not arise out of or in the course of employment and that his employment was not a significant contributing factor to his injury. It follows therefore that it is incumbent on the Appellant to establish to the requisite standard that the application for compensation was not one for acceptance.
  1. [50]
    On consideration of the totality of the evidence before the Commission, I am not satisfied that the Appellant has established Mr Bergin did not suffer an "injury" within the meaning of s 32 of the Act. Accordingly, 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 not one for acceptance.
  1. [51]
    In coming to that conclusion, I have naturally considered the expert evidence of both orthopaedic surgeons, namely, Dr Ness and Dr Maguire.
  1. [52]
    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. As I observed in Taylor v Workers' Compensation Regulator:

The Commission, as the tribunal of fact, can be assisted by expert medical opinion evidence, but must weigh and determine the probabilities as to the cause of an injury having regard to the totality of the evidence.   The Commission's duty is to find ultimate facts and, so far as it is reasonably possible to do so, to look not merely at the expertise of the expert witness, but to examine the substance of the opinion expressed and (where experts differ) to apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted.[29]

  1. [53]
    It is submitted by the Respondent that I should prefer the evidence of Dr Ness over that of Dr Maguire. The submission is made on the basis that Dr Ness gave his evidence in a much more measured manner and was prepared to make appropriate concessions where they were called for. Whilst I accept that on occasions Dr Maguire gave his evidence in a robust and forthright manner I am not of the view that it affected his objectivity and after hearing his evidence and considering it in its totality, I do not consider that his evidence should be disregarded or given lesser weight.
  1. [54]
    On balance, I prefer the evidence of Dr Maguire. Dr Maguire is Mr Bergin’s treating orthopaedic surgeon.[30] He has seen Mr Begin on numerous occasions and, in relation to the WorkCover claim, Dr Maguire saw Mr Bergin as a patient and not for the purposes of obtaining a medico-legal report.[31] 
  1. [55]
    Ultimately, Dr Maguire's evidence was that the mechanism of injury as described by Mr Bergin was "very reasonable" and Dr Ness accepted that it was "possible" that Mr Bergin could have suffered the injury as described by Mr Bergin.
  1. [56]
    While causation will, necessarily, be part of any analysis, the Act recognises that there may be more than one factor in play.[32] The use of "a" significant contributing factor indicates that there can be more than one significant factor. In Pleming v Workers' Compensation Board of Queensland, de Jersey P said, referring to the facts of the case before him:

There is obviously at least one other contributing factor and on the evidence before the Magistrate that was certainly the major factor. There could be room, in theory, for another significant factor.[33]

  1. [57]
    As was observed by de Jersey P in Croning v Workers' Compensation Board of Queensland:

There may of course be two or more factors which might each be regarded as "significant" contributors to the development of a condition. The determination of which of a number of contributing causes is or are significant, involves a factual exercise.[34]

  1. [58]
    For an injury to be compensable it must be a personal injury arising out of, or in the course of, employment, and the employment must be a significant contributing factor to the injury.  Mr Bergin was employed by the Appellant to operate a garbage collection truck, and, on the evidence before me, I accept that he suffered an injury whilst operating the truck.   Further, I accept that Mr Bergin's employment was a significant contributing factor to his injury.
  1. [59]
    For the reasons above, the appeal must be dismissed.
  1. [60]
    I make the following orders:
  1. The appeal is dismissed;
  2. The decision of the Respondent dated 27 November 2015 is affirmed; and
  3. The Appellant is to pay the Respondent's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.

Footnotes

[1] Exhibit 11.

[2] Exhibit 12.

[3] Exhibit 11, p 3.

[4]  Exhibit 6, p 5.

[5] T1-36 Ll 30-37.

[6] T1-41 Ll 1-9.

[7] T1-41 Ll 5-10.

[8] T3-32 Ll 9-12.

[9] T3-10 Ll 3-10.

[10] T3-12 Ll 11-12.

[11] T3-12 L39 – T3-13 L8.

[12] Exhibit 18.

[13] Exhibit 6.

[14] T3-18 Ll1 12-21.

[15] T3-21 Ll18 -40.

[16] T3-10 Ll29 -35.

[17] Exhibit 17.

[18] Submissions of the Appellant, 16 April 2019 at para. 29

[19]  See T3-5 L.5 and Exhibit 17.

[20]  Exhibit 22.

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

[22] (1964) 110 CLR 626.

[23] 1 Qd R 519, [22].

[24] Ibid, [41]-[42].

[25] (2007) 186 QGIG 512.

[26] (2008) 189 QGIG 747, 750.

[27] (2009) 191 QGIG 115.

[28] [2016] ICQ 001, [24].

[29] [2017] QIRC 006, [43] (citations omitted from original).

[30] T3-2 Ll.37-39

[31] T3-11 L.33

[32] Simon Blackwood (Workers’ Compensation Regulator) v Civeo Pty Ltd and Anor [2016] ICQ 001, [25].

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

[34] (1997) 156 QGIG 100

Close

Editorial Notes

  • Published Case Name:

    J J Richards & Sons Pty Ltd v Workers' Compensation Regulator

  • Shortened Case Name:

    J J Richards & Sons Pty Ltd v Workers' Compensation Regulator

  • MNC:

    [2019] QIRC 98

  • Court:

    QIRC

  • Judge(s):

    Member O'Connor VP

  • Date:

    25 Jun 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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