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Katsambis v Workers' Compensation Regulator[2020] QIRC 107

Katsambis v Workers' Compensation Regulator[2020] QIRC 107

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Katsambis v Workers' Compensation Regulator QIRC [2020] 107

PARTIES:

Katsambis, Patricia

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2018/57

PROCEEDING:

Appeal against decision

DELIVERED ON:

21 July 2020

HEARING DATES:

27 August 2019

28 August 2019

9 October 2019 (Appellant's submissions)

18 November 2019 (Respondent's submissions)

MEMBER:

HEARD AT:

Knight IC

Brisbane

ORDERS:

  1. The appeal is upheld in part.
  2. The decision of the Regulator dated 14 February 2018 is set aside.
  3. The Regulator is to pay the Appellant's costs of, and incidental to, this appeal.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – PHYSICAL INJURY – where Appellant suffered injuries to lower back and right shoulder after lifting event – where WorkCover accepted injuries as work related – where Appellant lodges a further claim for workers' compensation – whether claimed physical injuries arose directly out of lifting event – whether, in the alternative, subsequent injuries arose out of an antalgic or altered gait resulting from lifting event – whether injuries arose out of, or in the course of, employment – whether employment the significant contributing factor – appeal upheld in part.

LEGISLATION:

CASES:

Workers' Compensation and Rehabilitation Act 2003 (Qld)

Carman v Q-COMP (2007) 186 QGIG 512

Cowen v Bunnings Group Limited [2014] QSC 301

Girlock Sales Pty Ltd v Hurrell (1982) 149 CLR 155

Holloway v McFeeters (1956) 94 CLR 470.

Mater Miscercordiae Health Services Brisbane Limited AND Q-COMP (2005) 179 QGIG 144

Q-COMP AND Darren Bruce Parsons (2007) 185 QGIG 1

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

Taylor v Workers' Compensation Regulator [2017] QIRC 006

APPEARANCES:

Dr G J Cross of Counsel, instructed by Patinos Lawyers for the Appellant

Mr J S Miles of Counsel, directly instructed by the Respondent

Reasons for Decision

  1. [1]
    Ms Patricia Katsambis was employed as a Retail Store Manager at TV Direct 2U. She suffered an injury to her lower back and right shoulder while lifting vibration plates at her workplace in late May 2017.  
  2. [2]
    WorkCover accepted two claims for compensation related to Ms Katsambis' lower back and right shoulder but rejected a further claim for several other injuries which she says were also suffered as a consequence of the lifting activities. 
  1. [3]
    The stated injuries in the rejected claim included trochanteric bursitis of the left hip, a tear of the gluteal minimus muscle (buttock) and an injury to the sacroiliac joint. On review, the Workers' Compensation Regulator ("the Regulator") confirmed WorkCover's decision not to accept Ms Katsambis' claim. It is against this decision that Ms Katsambis now appeals.
  1. [4]
    Ms Katsambis argues the injuries complained of arose directly out of the May lifting event; in the alternative, they are secondary injuries suffered because of an antalgic or altered gait that arose in the wake of the original injuries she suffered after lifting 56 vibration plates which weighed in the vicinity of 15kg to 18kg each. 
  1. [5]
    The Regulator submits Ms Katsambis does not suffer from the injuries that are the subject of this appeal. Further, even if the Commission does decide she has injured herself, the injuries of which she complains did not arise out of, or in the course of, her employment, nor was Ms Katsambis' employment a significant contributing factor to any of the three injuries.  
  1. [6]
    The primary issue for determination in this appeal is whether Ms Katsambis sustained an 'injury' within the meaning of that term in s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ("the 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 of psychological disorder – the employment is a significant contributing factor to the injury

…

  (3)Injury includes the following–

…

  1. (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–
  1. (i)
    a personal injury other than a psychiatric or psychological disorder;
  2. (ii)
    a disease;
  3. (iii)
    a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation.
  1. [7]
    In circumstances where it is not in dispute that Ms Katsambis is a worker, the remaining issues I must therefore determine in this appeal are:

(a) Did Ms Katsambis sustain a personal injury; namely:

  1. (i)
    trochanteric bursitis; 
  2. (ii)
    sacroiliac joint injury; 
  3. (iii)
    gluteus minimus injury (buttock)
  1. (b)
    If yes, did the injury arise directly as a result of the original lifting activities engaged in by Ms Katsambis in her workplace on 3 and 10 May 2017; and/or because of an antalgic or altered gait which was observed in the months following Ms Katsambis' confirmed aggravated back injury; or for another reason?
  1. (c)
    Did Ms Katsambis antalgic or altered gait arise directly as a result of her previously accepted aggravated back injury?
  1. (d)
    Did any of the injuries complained of arise out of, or in the course of, Ms Katsambis' employment?
  1. (e)
    Was Ms Katsambis' employment with TV Direct 2U the significant contributing factor in the onset of any of the injuries described at (a)?

Did Ms Katsambis sustain a personal injury?

TROCHANTERIC BURSITIS

  1. [8]
    Consideration of when Ms Katsambis first experienced and complained of pain on or around her left side and hip area is required in order to determine if, and when, she developed trochanteric bursitis. 
  1. [9]
    It is the case that Ms Katsambis had previously experienced pain in her hips and lower back well before the lifting events in May 2017. Dr Marlies Dowland, her general practitioner, had previously made a note about a consultation with Ms Katsambis on 10 August 2016 during which she had complained of pain in both legs. 
  1. [10]
    Dr Dowland told the Commission she organised a lumbosacral and prescribed some Naprosyn which seemed to fix the problem. Her evidence was that it was not until early August 2017 that Ms Katsambis made any further complaints about pain on her left side.  
  1. [11]
    In a brief description of each injury complained of by Ms Katsambis,[1] Dr Malcolm Wallace, orthopaedic surgeon, assisted the Commission in explaining that trochanteric bursitis is an inflammation of the trochanteric bursa. Dr Wallace differentiated between acute bursitis and chronic bursitis, noting:

Acute bursitis occurs because of trauma or massive overload. Chronic bursitis ... is caused by overuse and too much pressure on the structure or by extreme movements. Wrong muscle strain can also be a cause of chronic bursitis. The main symptom which is always present is pain.

  1. [12]
    Dr Wallace explained that the clinical presentation of trochanteric bursitis is chronic pain or hip tenderness in the lateral aspect of the hip that may radiate down the thigh and lower back. He considered that an important diagnostic test for trochanteric bursitis is palpitation in and around the greater trochanteric area. Where there is any doubt about the diagnosis, he noted it was helpful to obtain an MRI.
  1. [13]
    Although it is accepted that the May 2017 lifting incident resulted in pain on Ms Katsambis' right side which extended to her right hip and right leg, her evidence to the Commission was that, over time, the pain on her right side gradually subsided and the pain on her left side increased and continued on, unabated.
  1. [14]
    Ms Katsambis' recollection about when she initially recalled experiencing pain on her left side was not entirely clear. She was able to confirm that she recalled feeling a sharp pain on her left side after descending some stairs, following a visit to her psychologist on 4 August 2017, but also considered she had some left hip pain prior to seeing her psychologist and possibly one month after the May lifting events. 
  1. [15]
    Ms Katsambis struggled to recall with any certainty the first time she reported pain on her left side to Dr Dowland, however a clinical record prepared on 7 August 2019 notes:

dr olson is unable to help her on Friday after walking downstairs she got a sharp apin (sic) into her left buttock and she is getting stinging and pain around her anus

  1. [16]
    About a month earlier, Ms Katsambis had complained to Dr Olsen, a neurosurgeon, of burning pain across her buttocks, but she did not make a specific reference to pain in her trochanteric region.
  1. [17]
    In correspondence dated 5 July 2017, Dr Olsen was unable to identify a cause for the burning sensation but expressed the opinion that bursitis would not result in burning pain across the buttocks.
  1. [18]
    In the same month, Dr Olsen arranged for Ms Katsambis to be examined by Dr Kerryn Green. In a report dated 19 July 2017, Dr Green noted Ms Katsambis experienced pain

on hip flexion of both legs, which was approximately two months after the May 2017 lifting events which resulted in injuries on her right side. 

  1. [19]
    Dr Green was not called to give evidence during the proceedings. Other than the reference to the pain in her hips, the report is not overly helpful in terms of providing the Commission with an explanation or source of the pain.
  1. [20]
    Dr Dowland subsequently referred Ms Katsambis to Dr Jason Papacostas, neurosurgeon, on 9 August 2017, noting left sided sciatica and burning in her buttock area in the referral correspondence. 
  1. [21]
    It was not until this point that there is any meaningful reference, either from Ms Katsambis or her treating medical specialists, of pain on her left side. In his report dated 17 August 2017, Dr Papacostas noted Ms Katsambis:

… currently denies any significant symptoms involving the right lower limb but has a burning numbness affecting both buttocks and lower lumbar region bilaterally. This is exacerbated with prolonged sitting, walking and particularly traversing stairs. She is unable to be seated in excess of 10 minutes, prior to symptoms becoming quite bothersome.[2] 

  1. [22]
    According to Dr Papacostas' report, Ms Katsambis did not complain of pain in her left trochanteric region during her appointment. At the conclusion of his examination, Dr Papacostas was also unable to identify a specific cause for the burning sensation across her buttocks. As best I understand it, the focus of Dr Papacostas' examination was not Ms Katsambis' left trochanteric region.
  1. [23]
    In his verbal evidence during the proceedings, Dr Papacostas was unable to confirm whether he conducted any palpitation in the trochanter region. 
  1. [24]
    Approximately one month later, on 7 September 2017, Ms Katsambis was examined by Dr Sarah Lindsay, a specialist pain medicine physician. Dr Lindsay did not give evidence during the substantive proceedings, however a medical report she prepared in relation to her examination of Ms Katsambis was tendered by consent. 
  1. [25]
    Dr Lindsay noted that during her examination of Ms Katsambis, she reported pain in her right leg and calf, along with a limp in the days following the lifting incident in May 2017 but had then gone on to develop left sided pain, which was constant and radiated into the anal region. 
  1. [26]
    In the same examination, Ms Katsambis was reported as describing her buttocks being frequently numb with pain, which was exacerbated by lying on the left side and radiating into the thigh and calf. In her report, Dr Lindsay noted Ms Katsambis exhibited tenderness over her left buttock and her sacroiliac joint, but that the tenderness was located more laterally towards the hip, although not over the hip. She also observed some wasting of Ms Katsambis' left quadricep.  
  1. [27]
    Dr Lindsay noted it was a difficult history to piece together but considered the symptoms were suggestive of gluteal tendinopathy. She held the view Ms Katsambis was not suffering from sacroiliitis. An MRI report prepared by Dr Allen Avery on the same day as Dr Lindsay's examination in respect of Ms Katsambis' pelvis, left hip and sacroiliac joints observed 'Gluteus minimus tendinopathy with mild trochanteric bursitis'.
  1. [28]
    On 23 October 2017, Ms Katsambis attended a consultation with a neurosurgeon, Dr Peter Lucas. He was also not available to give evidence during the proceedings, but his reports of 23 October 2017, 22 November 2017 and 21 December 2017 were tendered by consent. 
  1. [29]
    In his report to WorkCover dated 23 October 2017, Dr Lucas noted Ms Katsambis was experiencing severe discomfort on palpitation over the greater trochanteric region on the left. He also considered she might have hip or sacroiliac joint pathology. 
  1. [30]
    In his report dated 21 December 2017, Dr Lucas noted that although Ms Katsambis had experienced some improvement in her trochanteric bursitis through a guided injection, she continued to 'have symptoms of significance for which she takes neuropathic pain medications'.
  1. [31]
    Earlier, Dr Lucas had recommended a guided trochanteric bursal injection as both a diagnostic and therapeutic tool. Ms Katsambis received an ultrasound guided trochanteric bursal injection on 27 October 2017. In a report dated 27 October 2017, Dr Todd Stariha of Queensland X-Ray noted:

UTRASOUND LEFT HIP

Clinical History: Localised Pain

Findings: the gluteus tendons are intact, however there is a small to moderate volume of fluid within the trochanteric burs, tracking superiorly beneath the ITB. This is consistent with a trochanteric bursitis.

ULTRASOUND GUIDED TROCHANTERIC BURSA INJECTION

Clinical Notes: The patient’s previous relevant history, prior interventions and the planned intervention were discussed…

  1. [32]
    Approximately two weeks after receiving the injection, Ms Katsambis attended a specialist appointment with another neurosurgeon, Dr Leigh Atkinson, at the request of WorkCover.
  1. [33]
    In his report dated 21 November 2017, Dr Atkinson was of the opinion Ms Katsambis was a poor historian who appeared agitated and disorganised. He noted Ms Katsambis

told him the pain in her 'left buttock and left gluteal region' had settled, but that she had constant distressing pain in her perianal region passing into her vagina. 

  1. [34]
    As best I understand it, Ms Katsambis did not advise Dr Atkinson she had been given a trochanteric bursa injection on 27 October 2017. It is also not clear from Dr Atkinson's report whether he was advised by WorkCover that Ms Katsambis had received the injection, prior to her appointment.  
  1. [35]
    In his report, Dr Atkinson referred to an ultrasound of Ms Katsambis' left hip being undertaken on 27 October 2017, however there is no reference to the trochanteric bursa injection which, as best I can tell, was administered on the same day and also noted in the same report as the ultrasound. 
  1. [36]
    Ms Katsambis' representatives later sought an independent medical report from Dr Wallace in early July 2018. At the time Ms Katsambis saw Dr Wallace, she complained of ongoing left hip sided pain which worsened with walking and direct pressure. 
  1. [37]
    On examination, Dr Wallace noted tenderness over the left greater trochanter but full range of motion in the left hip in all directions. He also concluded, having regard to the history provided by Ms Katsambis, his clinical examination and other documentation provided to his rooms ahead of the appointment, that she suffered from symptomatic left trochanteric bursitis.  

Does Ms Katsambis suffer from trochanteric bursitis?

  1. [38]
    I have considered the evidence of Dr Atkinson in respect of his opinion that there is no supporting evidence Ms Katsambis suffered a left hip injury. The difficulty I have with Dr Atkinson's opinion it that he appears to have arrived at this conclusion without being aware or advised that Ms Katsambis received a trochanteric bursa injection in the weeks prior to her appointment.
  1. [39]
    In my view, the evidence of several of the specialists supports a conclusion the injection most likely provided Ms Katsambis with some relief in her left hip area, albeit for a short period, during which time she also attended an appointment with Dr Atkinson. 
  1. [40]
    In those circumstances, I consider it is plausible Ms Katsambis did not complain of pain in her trochanteric region during her appointment with Dr Atkinson because the injection had been effective in reducing some of the pain and inflammation in the area.
  1. [41]
    Although he did not determine Ms Katsambis was suffering from trochanteric bursitis at the time of her examination, in cross-examination, Dr Papacostas confirmed that findings of tenderness on palpitation over the trochanteric region and an improvement in the area following the injection supported a conclusion her left trochanteric region may have been an area of concern. 
  1. [42]
    Both Dr Wallace and Dr Lucas were satisfied Ms Katsambis was suffering from trochanteric bursitis following their respective examinations. 
  1. [43]
    Dr Olsen did not consider Ms Katsambis was suffering from trochanteric bursitis at the time of her examination, although a file note in evidence prepared in the lead up to the proceedings indicates she also considered that an improvement in the level of pain in trochanteric bursa region may have been indicative of a problem in the area.  
  1. [44]
    On balance, having considered all the medical evidence before the Commission, I am inclined to accept the evidence of Dr Wallace insofar as it relates to Ms Katsambis suffering from trochanteric bursitis. His evidence is, in my view, quite clear and persuasive. Although the condition was not apparent in the immediate aftermath of the May 2017 lifting event, I am satisfied the symptoms emerged in the months following the workplace incident. 

When did the trochanteric bursitis arise?

  1. [45]
    The Regulator submits Ms Katsambis was a most unsatisfactory and unreliable witness. Likewise, Dr Atkinson considered she was a poor historian. 
  1. [46]
    I had the opportunity to observe Ms Katsambis during the proceedings. Although I agree her evidence was a little confused at time, I do not hold the view she was deliberately being evasive or attempting to mislead the Commission. 
  1. [47]
    At one point in the proceedings, Ms Katsambis acknowledged the pain she experienced on her left side arose in or about August 2017. In many respects, this accords with a medical record prepared by Dr Dowland, which noted Ms Katsambis complained of pain on her left side early August 2017. Though, at that stage, it appears she was referring to pain in her left buttock, rather than the left trochanteric region.  
  1. [48]
    Dr Lindsay obtained an MRI report from Dr Green, which included a reference to Ms Katsambis experiencing pain on her hip flexion in mid-July during an examination. Although Dr Green did not provide evidence during the proceedings, it appears that as early as July 2017 there is a reference to Ms Katsambis experiencing pain on both sides of her body following hip flexion of both legs. 
  1. [49]
    Although Dr Green was not called to give evidence, his note accords with Ms Katsambis' evidence that she was experiencing pain on her left side well before visiting her psychologist in early August 2017. 
  1. [50]
    Dr Avery included a reference to gluteus minimus tendinopathy with mild greater trochanteric bursitis in a MRI report on 8 September 2017, however it was not until she was examined by Dr Lucas on 23 October 2017 that there is a direct reference in any reports of Ms Katsambis complaining to a specialist about any discomfort in her left trochanteric region. 
  1. [51]
    That aside, Ms Katsambis did present with pain around her hip area and down her left thigh during an appointment with Dr Lindsay in early September 2017.
  1. [52]
    Having regard to the instances where Ms Katsambis is reported by treating specialists as complaining of pain in the trochanteric region (or the vicinity of the region), as well as the reference to 'greater trochanteric bursitis' in an MRI report dated 8 September 2017, it seems more than likely Ms Katsambis' trochanteric bursitis crystallised at some point from early September 2017, but that she was experiencing related symptoms and pain some weeks before this time. 

Did trochanteric bursitis arise as a result of the original lifting activities engaged in by Ms Katsambis on 3 and 10 May 2017, or because of a limp which developed in the months following Ms Katsambis' confirmed aggravated back injury, or for some other reason?

  1. [53]
    Dr Wallace explained that chronic bursitis can be caused by overuse or too much pressure on the structure, or from extreme movements. It was his opinion that the nature and condition of Ms Katsambis' work was enough to precipitate left sided trochanteric bursitis. 
  1. [54]
    Although Dr Wallace observed during the examination of Ms Katsambis that she walked with a slight limp, he did not give consideration as to whether the bursitis may have been caused by an altered gait. 
  1. [55]
    In response to questions from the Commission as to why Dr Wallace considered there was temporal connection between the May 2017 lifting events and the onset of the trochanteric bursitis he explained:

It's quite possible that the inflammatory process around the left – the left hip becomes more intense over a period of time and becomes a – a more prominent symptom as the – the more acute back pain and right leg pain settles…[3] 

  1. [56]
    In circumstances where Ms Katsambis did not complain or report pain specifically in her trochanteric region until early September 2017, Dr Dowland and Dr Olsen considered it was possible Ms Katsambis' trochanteric bursitis had arisen due to an antalgic or altered gait (a limp) which developed in the wake of her original right sided injuries in May 2017. 
  1. [57]
    Dr Dowland's evidence was that since the lifting incident she had observed Ms Katsambis in a lot of pain and in a position where she could barely walk. She held the view that it was entirely possible that pain could arise in Ms Katsambis' left hip in a scenario where she had commenced walking unequally as a result of pain on her right side. 
  1. [58]
    Dr Olsen observed during her examination on 7 September 2017 that Ms Katsambis was suffering from a severely antalgic gait, noting:

… I remember her being very distressed…She was obviously having a lot of trouble adjusting to what was going on and very anxious and distressed but walking with a painful gait.

  1. [59]
    Dr Olsen did not consider it likely that Ms Katsambis' trochanteric bursitis could have occurred spontaneously.[4] In response to a question from the Commission as to why the way in which Ms Katsambis was walking could impact her left side, Dr Olsen explained:

…if you have got a disabled right side, you're asking more of your left side and so the extra load and that change in load bearing seems to aggravate in the – potential underlying problem that might be there and we do see it quite commonly, for some reason.[5]

  1. [60]
    Dr Papacostas, in his evidence in chief, indicated that if symptoms over the greater trochanteric region on Ms Katsambis' left side had not been complained of for three to four months following the May 2017 lifting events, then he considered there was no temporal connection between the lifting events and a diagnosis of the left sided trochanteric bursitis.  
  1. [61]
    In cross-examination, Dr Papacostas identified Ms Katsambis as suffering from an antalgic gait or a limp. He considered this may have contributed to her left sided pain symptoms, observing that it was possible that "favouring one lower limb and adjusting one's posture may have irritated or inflamed the relevant area with resulting hip pain". [6]
  1. [62]
    Earlier, during examination in chief in response to a question as to whether trochanteric bursitis on the left side could develop as a consequence of an antalgic gait which developed due to pain and symptoms on the right side of the body, he noted "[i]t's not something I would normally attribute to that".[7]
  1. [63]
    Although Dr Atkinson was of the opinion Ms Katsambis did not have trochanteric bursitis at the time of his examination and there was no temporal connection between the May 2017 lifting injuries and any left sided pain, he acknowledged that an antalgic gait problem on one side of the body could lead to problems on the opposite side of the body. He noted: 

Well it happened to me. It has happened to a lot of people. If you hurt one leg you put strain on your back and on your opposite hip. It's not a – you don't need a – a degree for that.[8]

  1. [64]
    Dr Lucas, who was not called to give evidence, wrote in response to a question as to whether the trochanteric bursitis was an aggravation of a pre-existing condition:

Overall, I would imagine that yes, this is an aggravation of an underlying phenomena in both the cervical as well as the lumbar regions. This is true no doubt over the sacroiliac joint and trochanteric regions.[9]

  1. [65]
    Dr Dowland held the view that all of Ms Katsambis' injuries were related to the May 2017 lifting events, noting that from the time she first injured herself she had come in with one problem after another. She considered that all of the pain and symptoms were related to the lifting event, noting that Ms Katsambis did not have any problems before the event, but now she did.
  1. [66]
    Of the specialists who gave evidence during the proceedings, Dr Wallace was of the opinion Ms Katsambis' trochanteric bursitis was initially masked by her right sided symptoms, which arose directly out of the lifting events in May 2017. 
  1. [67]
    In response to a question from the Commission as to why he considered the trochanteric bursitis arose directly as a result of the lifting events, despite Ms Katsambis only complaining of pain on her left side in early August, Dr Wallace explained:

…my first response would be that I cannot find another cause for her left hip pain. In other words, I do relate it to – to a traumatic incident and it would be consistent with her – the nature and conditions of her work, particularly that lifting that she was doing. And my – and my view is that she did not just present with an isolated left hip problem. She presented with quite severe lower back pain and – which changed itself over time and I – it is my opinion that it is likely that the trochanteric bursitis did not become an issue until further down the track, but that it was the initial incident occurred at the same time as her back pain, shoulder pain and neck pain.[10]

Conclusions – injury arising as a result of prior lifting events, antalgic gait or other nonwork-related reason?

  1. [68]
    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 to arrive at a conclusion. As Deputy President O'Connor (as he then was) observed:

The Commission, as the tribunal of fact, can be assisted by expert medical evidence, but must weigh and determine the probabilities as to the cause of an injury having regard to the totality of 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 as 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.[11]  

  1. [69]
    In Cowen v Bunnings Group Limited,[12] Wilson J stated:

As Dixon CJ and others explained in Ramsay v Watson, a medical expert may express an opinion as to the nature of the cause, or probable cause, of an ailment but it is for the jury to weigh and determine the probabilities, and, in undertaking that exercise, the Court is not to transfer the task to experts, but rather to task itself: 'Are we on the whole of the evidence satisfied on the balance of probabilities of the fact?'.[13]  

  1. [70]
    On the question of the balance of probabilities, in Girlock Sales Pty Ltd v Hurrell,[14] Stephen J reproduced a passage from an earlier decision of the High Court: 

you need only circumstances raising a more probable inference in favour of what is alleged …where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture. All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.[15]

  1. [71]
    In this matter, I prefer the evidence of Dr Wallace in relation to the question of whether Ms Katsambis' trochanteric bursitis arose as a result of the original lifting activities engaged in by Ms Katsambis on 3 and 10 May 2017. I found him to be a credible witness. His opinion was both logical and persuasive. 
  1. [72]
    Ms Katsambis gave evidence, which I accept, about the events which led to her back injury in May 2017. She described how after lifting numerous boxes on 3 May 2017 she felt a twinge and started limping on her left side. She returned to work the following week on 10 May 2017 and continued to lift the boxes. Around 11.30am on the same day she recalled feeling a sharp pain across her back. She recalled it was more dominant on her right side.
  1. [73]
    Ms Katsambis continued working and finished her shift, but the next morning she was unable to walk. She made an appointment to see Dr Dowland but was eventually taken to hospital by ambulance. When she presented at her appointment with Dr Dowland she was experiencing lower back pain and strong pain down her right side. She explained that the burning and numbing pain across both buttocks was present in the very early stages of her original injury.  
  2. [74]
    The Regulator argues that there is no evidence directly connecting the lifting injuries with the trochanteric bursitis, however, having regard to Dr Wallace's opinion and Ms Katsambis' evidence about the lifting events and her subsequent pain, I consider it plausible that Ms Katsambis' right side pain and symptoms masked the injury on her left side until the pain on her right began to subside. 
  1. [75]
    Although Ms Katsambis presented as a little confused at times, I also accept her evidence that she was experiencing some pain symptoms on her left side, even before she visited her general practitioner in early August 2017. It is entirely probable, having regard to Dr Wallace's opinion, that these symptoms were the prelude to the onset of the trochanteric bursitis injury in its ultimate form.
  1. [76]
    The finding that the injury occurred as described by Ms Katsambis, in conjunction with the medical evidence, is enough, in my view, for the inference to be drawn.
  1. [77]
    Even if I were wrong on that point, the weight of the remaining medical evidence supports, on the balance of probabilities, an alternate but equally sustainable conclusion:

that the trochanteric bursitis arose as a result of Ms Katsambis' antalgic or altered gait.

  1. [78]
    That is, in the absence of Dr Wallace's opinion, the weight of the medical evidence supports a conclusion that an injury to the back and/or one side of the body may result in impairment not only to the injured area itself but to other parts of the body constitutionally associated with or linked to the area such as the upper, lower or opposite limbs.

Did Ms Katsambis' antalgic or altered gait arise directly as a result of her previously accepted aggravated back injury?

  1. [79]
    The evidence before the Commission does not indicate Ms Katsambis was suffering from an altered gait or limp prior to the May 2017 lifting events. 
  1. [80]
    Having regard to the observations of several of the medical specialists who examined her in the second half of 2017, it is clear Ms Katsambis developed an antalgic gait/altered gait in the wake of the May 2017 lifting events. 
  1. [81]
    In the absence of any other plausible explanation for onset of her limp, the evidence, on balance, supports a conclusion that the limp arose as a direct result of her right sided injuries. 

Did the trochanteric bursitis arise out of or in the course of Ms Katsambis' employment?

  1. [82]
    I am satisfied, having preferred Dr Wallace's evidence, that Ms Katsambis' trochanteric bursitis arose directly as a result of the May 2017 lifting events.  
  1. [83]
    I accept that Ms Katsambis' pain and symptoms on her left side were more than likely initially masked given the injuries on her right side. As the pain on her right side subsided, the symptoms of her trochanteric bursitis became more obvious.
  1. [84]
    In my view, the symptoms on her left arose as a result of the May 2017 lifting events.  
  1. [85]
    Even if I were to be wrong on that point, I would still be equally satisfied the trochanteric bursitis arose because of her antalgic gait or limp, which developed in the wake of her original back injury due to the pain she was experiencing on her right side. 
  1. [86]
    Ms Katsambis' accepted back injury occurred as a result of her lifting 56 vibration plates, weighing between 15kg and 18kg, at her workplace over a period of two days in early May 2017. WorkCover accepted the back injury arose out of Ms Katsambis' employment.
  1. [87]
    In those circumstances, I would consider that the trochanteric bursitis is a secondary injury.

Was Ms Katsambis' employment with TV Direct 2U the significant contributing factor in the onset of any of the injuries described at (a)?

  1. [88]
    The issue of whether or not employment is the major significant contributing factor to an injury is a question of mixed fact and law to be determined by the Commission.[16] In so determining, there is ordinarily emphasis placed on the opinions of medical practitioners.[17]
  1. [89]
    Dr Papacostas speculated in his evidence that the pain in Ms Katsambis' buttocks "may be just a non-specific symptom relating to degenerative changes or an aggravation of a degenerative change".[18] He confirmed that both degeneration and a limp could both be contributing factors to Ms Katsambis' hip injury. 
  1. [90]
    Although there is evidence before the Commission indicating Ms Katsambis experienced hip pain on both sides of her body in 2016, I am satisfied having regard to Dr Dowland's comments that the pain resolved itself well before the May 2017 lifting events.
  1. [91]
    Dr Lucas considered Ms Katsambis' trochanteric bursitis was an aggravation of a preexisting condition – that is, an 'aggravation of underlying phenomena in both the cervical as well as the lumbar regions'.[19]  However, as Dr Lucas was not available to give oral evidence, his comments are not overly helpful in determining whether (or not) Ms Katsambis' employment was a significant contributing factor in the onset of her injury.
  2. [92]
    The Regulator contends Ms Katsambis has failed to establish her trochanteric bursitis arose out of or in the course of employment, nor that employment was a significant contributing factor to the injury. I disagree. 
  1. [93]
    Martin P has previously held in the Industrial Court of Queensland that:

The test applied in determining whether employment was a significant contributing fact must be applied in a practical way. It is the "exigencies" of employment which must be considered and, and while that will ordinarily include the contractual terms of engagement, it will generally require an analysis of the circumstances surrounding the employment.[20]

  1. [94]
    I accept Ms Katsambis' evidence in respect the May 2017 lifting events, which resulted in an accepted WorkCover claim for, among other things, an aggravated back injury. Likewise, I accept Dr Wallace's evidence that it is entirely possible for the pain and symptoms associated with one side or part of the body (in this case, the lower back and right side of Ms Katsambis' body) to mask pain and/or symptoms in another part of the body (in this case, the left trochanteric region) following an injury. 
  1. [95]
    I also accept Ms Katsambis was more than likely experiencing some pain symptoms in or close to the trochanteric region in the months following the May 2017 lifting events.  
  1. [96]
    In the absence of any alternative explanation or meaningful evidence before the Commission pointing to a pre-existing injury or an event or condition, emerging after the May 2017 lifting events to explain the onset of pain and symptoms giving rise to Ms Katsambis' trochanteric bursitis, the logical conclusion is that the original workplace lifting events that occurred in May 2017 and therefore Ms Katsambis' employment were the significant contributing factor in the onset of the trochanteric bursitis.
  1. [97]
    Even if I were to be wrong on that point, I would be satisfied that Ms Katsambis developed an altered gait (limp) as a result of a previous injury which was accepted as compensable under the Act. In those circumstances the weight of the evidence supports a conclusion that the limp led to the onset of a secondary injury in the form of trochanteric bursitis.
  1. [98]
    Either way, I consider that Ms Katsambis has discharged her onus in this matter, and I have determined, on the balance of probabilities, that the trochanteric bursitis suffered by her arose in the course of her employment and that her employment was a significant contributing factor in the onset of the condition.  

SACROILIAC JOINT INJURY

  1. [99]
    Dr Wallace explained the sacroiliac joint is the connection between the spine and the pelvis, noting that one of the common causes of sacroiliac joint injury is trauma. He highlighted that provocative tests, including Faber and Gaenslen's, are helpful indicators when determining whether the sacroiliac joint is causing pain.
  1. [100]
    He also noted the signs and symptoms of sacroiliac joint pain commence in the lower back and buttock and radiate to the lower hip, groin or upper thigh. He explained that while pain is usually one sided, it can occur on both sides and that patients may also experience numbness or tingling in the leg.
  1. [101]
    In Dr Wallace's opinion, Ms Katsambis' sacroiliac joint was not contributing to the pain in her hip. He considered her spinal pain was due to the lumbar spine rather than the sacroiliac joint. 
  1. [102]
    Dr Olsen was unable to identify symptoms which were indicative of sacroiliitis. She considered that the sacroiliac joint was more degenerative, and Ms Katsambis had potentially jarred it while lifting.
  1. [103]
    Likewise, Dr Papacostas was unable to identify a sacroiliac joint injury. 
  1. [104]
    Although Dr Lindsay was not called to give evidence, she also excluded sacroiliitis as a possible explanation for Ms Katsambis' pain symptoms in her report dated 10 October 2017.
  1. [105]
    Dr Atkinson did not find any evidence of a sacroiliac joint injury during his examination. 
  1. [106]
    Dr Lucas did not give evidence, but his report of 23 October 2017 indicated Ms Katsambis might have been experiencing sacroiliac dysfunction. As he was unavailable to give evidence, it is not clear if he continued to maintain this position after Ms Katsambis was treated with trochanteric bursitis. 
  1. [107]
    The weight of the evidence does not support a conclusion Ms Katsambis has suffered a sacroiliac injury. As such, I do not accept Ms Katsambis has suffered a sacroiliac joint injury that would fall within the definition of s 32 of the Act.

TEAR OF THE LEFT GLUTEUS MINIMUS MUSCLE

  1. [108]
    Dr Wallace explained that tears to the gluteus minimus are usually caused by general overuse, whether it be sitting for long periods of time with your legs crossed or carrying heavy objects. He noted that pain in the outside of the hip and buttock is usually the first symptom of an injury or tear to the gluteus minimus, but other symptoms included pain in the back and outside of the thigh, pain that runs down the calf to the ankle and numbness along the affected leg. 
  1. [109]
    According to Dr Wallace, an ultrasound, x-ray or MRI can be helpful in identifying a tear. 
  2. [110]
    Ms Katsambis told the Commission that since the May 2017 lifting events, she had experienced numbness or burning pain in her buttocks. She described not being able to sit straight and having to move from side to side. 
  1. [111]
    Dr Dowland confirmed Ms Katsambis had complained of pain in her left buttock in an appointment on 7 August 2017. 
  1. [112]
    In her report dated 10 October 2017, Dr Linday recorded a tear to the left gluteous minimums muscle noting '[i]t was a difficult history to piece together but suggestive of gluteal tendinopathy...'.[21] She arrived at this conclusion having received an MRI scan report which recorded a finding by the radiologist of '... tendinosis +/- partial tear of the gluteus minimus'.[22]
  1. [113]
    Dr Lindsay was not called to give evidence, so the Commission does not have the benefit of hearing her opinions as to how she arrived at her diagnosis or her views about the radiology findings. 
  1. [114]
    Neither Dr Wallace nor Dr Atkinson identified a tear of the gluteus minimus muscle during their respective examinations. Dr Wallace held the view that Ms Katsambis' buttock pain was referred pain and was associated with her back injury.
  1. [115]
    According to Dr Wallace and Dr Atkinson the use of the symbol +/- meant that there is not a definitive finding of a tear of the gluteus muscle. Neither was prepared to say definitively if this indicated there was a tear of the gluteus muscle.
  1. [116]
    As best I can tell from the evidence, Dr Olsen and Dr Papacostas did not diagnose a tear of the gluteus minimus muscle.
  1. [117]
    On balance, having regard to the medical evidence, I consider there is insufficient medical evidence to support a finding that Ms Katsambis suffered an injury to her left buttock in the form of a tear to her gluteus minimus.
  1. [118]
    In those circumstances, I am not satisfied Ms Katsambis has suffered a sacroiliac joint injury that would fall within the definition of s 32 of the Act

Did Ms Katsambis suffer an injury within the meaning of s 32 of the Act?

  1. [119]
    The issue for determination is whether Ms Katsambis' employment is a significant contributing factor to the injuries sustained due to the limp Ms Katsambis developed.
  1. [120]
    Ms Katsambis bears the onus of establishing that her injury arose out of or in the course of employment and that her employment was not a significant contributing factor to her injury. 
  1. [121]
    I am satisfied Ms Katsambis has established she suffered an 'injury' within the meaning of s 32 of the Act in respect of trochanteric bursitis. 
  1. [122]
    I am not satisfied Ms Katsambis has suffered an 'injury' within the meaning of s 32 of the Act in respect of a sacroiliac joint injury or gluteus minimus injury.   
  1. [123]
    For the foregoing reasons, the appeal is upheld in respect of the injury of trochanteric bursitis but dismissed in relation to the remaining injuries. 

Orders

  1. [124]
    I make the following orders:
  1. The appeal is upheld in part.
  2. The decision of the Regulator dated 14 February 2018 is set aside.
  3. The Regulator is to pay the Appellant's costs of, and incidental to, this appeal.

Footnotes

[1] Exhibit 6.

[2] Exhibit 19.

[3] T1-52, ll 30-35.

[4] T1-117, ll 10-20.

[5] T1-111, ll 5-17.

[6] T2-42, ll 15-17.

[7] T2-40, ll 8-9.

[8] T2-19, ll 41-43.

[9] Exhibit 25.

[10] T1-52, ll 22-30.

[11] Taylor v Workers' Compensation Regulator [2017] QIRC 006, [43].

[12] [2014] QSC 301.

[13] Ibid [19] (footnotes omitted).

[14] (1982) 149 CLR 155, 161-162.

[15] Holloway v McFeeters (1956) 94 CLR 470, 480-481 (citations omitted).

[16] Mater Miscercordiae Health Services Brisbane Limited AND Q-COMP (2005) 179 QGIG 144

[17] Q-COMP AND Darren Bruce Parsons (2007) 185 QGIG 1, 3.

[18] T2-39, ll 42-44.

[19] Exhibit 25.

[20] Simon Blackwood (Workers' Compensation Regulator) v Civeo Pty Ltd and Anor [2016] ICQ 001, [24].

[21] Exhibit 26.

[22] Exhibit 15.

Close

Editorial Notes

  • Published Case Name:

    Katsambis v Workers' Compensation Regulator

  • Shortened Case Name:

    Katsambis v Workers' Compensation Regulator

  • MNC:

    [2020] QIRC 107

  • Court:

    QIRC

  • Judge(s):

    Member Knight IC

  • Date:

    21 Jul 2020

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Carman v Q-Comp (2007) 186 QGIG 512
1 citation
Jump To
Cite 1 - (2007) 186 QGIG 512
Cowen v Bunnings Group Limited [2014] QSC 301
3 citations
Jump To
Cite 1 - [2014] QSC 301
Cite 2 - [2014] QSC 301
Cite 3 - [2014] QSC 301
Girlock Sales Pty Ltd v Hurrell (1982) 149 CLR 155
2 citations
Jump To
Cite 1 - (1982) 149 CLR 155
Cite 2 - (1982) 149 CLR 155
Holloway v McFeeters (1956) 94 CLR 470
2 citations
Jump To
Cite 1 - (1956) 94 CLR 470
Cite 2 - (1956) 94 CLR 470
Mater Misericordiae Health Services Brisbane Limited v Q-COMP (2005) 179 QGIG 144
2 citations
Jump To
Cite 1 - (2005) 179 QGIG 144
Cite 2 - (2005) 179 QGIG 144
Q-COMP v Parsons [2007] 185 QGIG 1
2 citations
Jump To
Cite 1 - [2007] 185 QGIG 1
Cite 2 - [2007] 185 QGIG 1
Taylor v Workers' Compensation Regulator [2017] QIRC 6
2 citations
Jump To
Cite 1 - [2017] QIRC 6
Cite 2 - [2017] QIRC 6
Workers' Compensation Regulator v Civeo Pty Ltd [2016] ICQ 1
2 citations
Jump To
Cite 1 - [2016] ICQ 1
Cite 2 - [2016] ICQ 1

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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