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Statham v Workers' Compensation Regulator[2023] QIRC 3

Statham v Workers' Compensation Regulator[2023] QIRC 3

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Statham v Workers' Compensation Regulator [2023] QIRC 003

PARTIES: 

Statham, David

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO.:

WC/2020/73

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

10 January 2023

HEARING DATES:

17 and 18 August 2021

MEMBER:

Merrell DP

HEARD AT:

Brisbane

ORDERS:

  1. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the decision of the Respondent, dated 19 May 2020, is confirmed.
  1. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:
  1. (a)
    the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Wednesday, 1 February 2023; and
  1. (b)
    unless otherwise ordered, the decision on costs be determined on the papers.

CATCHWORDS:

WORKERS' COMPENSATION – ENTITLEMENT TO AND LIABILITY FOR COMPENSATION – appeal against review decision of Respondent – Appellant employed as a casual teacher by Career Employment Australia – Appellant made an application for workers' compensation claiming he suffered hernias from events in November 2017, when lifting a filing cabinet, and in early February 2018, when reaching up to lift a heavy screen and drill screws – rejection of that application – in September 2019, Appellant applied for a permanent impairment assessment for a lower back injury pursuant to s 132A of the Workers' Compensation and Rehabilitation Act 2003 claiming the November 2017 and February 2018 events had a causal connection with his lower back injury – rejection of that application which was confirmed by Respondent on review – Appellant appealed against review decision of Respondent to Commission – whether the November 2017 and February 2018 events occurred as alleged by Appellant – whether Appellant's degenerative lower back condition was aggravated by the November 2017 and February 2018 events – whether Appellant suffered an aggravation of a personal injury within the meaning of s 32(3)(b)(i) of the Workers' Compensation and Rehabilitation Act 2003 – Appellant did not suffer an aggravation of a personal injury within the meaning of s 32(3)(b)(i) of the Workers' Compensation and Rehabilitation Act 2003 – review decision confirmed

LEGISLATION:

Industrial Relations (Tribunal) Rules 2011, r 41

Workers' Compensation and Rehabilitation Act 2003, s 11, s 32, s 132A and s 558

CASES:

Camden v McKenzie [2007] QCA 136; (2008) 1 Qd R 39

Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031; (2015) 252 IR 461

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Goodman Fielder and WorkCover [2004] ICQ 8; (2004) 175 QGIG 871

Hansen v Patrick [2018] QCA 298; [2019] 3 Qd R 93

Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496

Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 Ll L Rep 140

State of Queensland (Queensland Health) v Q‑Comp and Beverley Coyne [2003] ICQ 9; (2003) 172 QGIG 1447

APPEARANCES:

Dr G. Cross of Counsel instructed by Mr M. Coughlan of Patinos Personal Lawyers for the Appellant.

Mr S. Gray of Counsel directly instructed by Ms R. Moroney of the Respondent.

Reasons for Decision

Background

  1. [1]
    Mr David Statham was employed, on a casual basis, by Career Employment Australia Ltd ('CEA') as a teacher. On 26 February 2018, Mr Statham lodged an application for workers' compensation with WorkCover Queensland for bilateral inguinal hernias claiming they arose from two events. The first was said to have occurred on 17 November 2017 when Mr Statham lifted a filing cabinet; and the second was said to have occurred in early February 2018 when Mr Statham reached up to insert a screw, with a drill, in the process of installing a canvass sign to be used as a welding screen ('the 2018 application').[1]
  1. [2]
    By decision dated 20 March 2018, WorkCover rejected the 2018 application. The Workers' Compensation Regulator, by review decision dated 23 July 2018, confirmed the WorkCover decision. By notice of appeal filed on 17 August 2018, Mr Statham appealed that decision to the Commission.[2]Mr Statham later discontinued that appeal.
  1. [3]
    By application dated 2 September 2019,[3]Mr Statham applied, pursuant to s 132A of the Workers' Compensation and Rehabilitation Act 2003 ('the Act') for a permanent impairment assessment of a lower back injury ('the 2019 application'). In the 2019 application, Mr Statham claims that his lower back injury arose out of the same two events that were the subject of the 2018 application. By reasons for decision dated 25 November 2019, WorkCover rejected that application. By review decision dated 19 May 2020, the Regulator confirmed the decision of WorkCover ('the review decision').
  1. [4]
    By notice of appeal filed on 12 June 2020, Mr Statham appealed to this Commission against the review decision.
  1. [5]
    An appeal of this type is a hearing de novo[4]of the issue determined by the review decision.[5]The onus is on Mr Statham to prove, on the balance of probabilities, that he has suffered an injury within the meaning of the Act.[6]
  1. [6]
    There is no dispute that:
  • at the relevant time, Mr Statham was a worker within the meaning of s 11 of the Act;[7]and
  • Mr Statham suffered a personal injury, namely, a lower back injury.[8]
  1. [7]
    In his Statement of Facts and Contentions, Mr Statham contended that his lower back injury arose out of, or in the course of, the work events he said occurred on 17 November 2017 and on 8 February 2018. However, Mr Statham alerted the Regulator, prior to final submissions, that the case would be put on the basis that, having regard to the evidence, the work events said to have occurred on 17 November 2017 and on 8 February 2018 aggravated a pre-existing back injury.[9]No objection was taken to that course by the Regulator.[10]Mr Statham addressed the contention that his employment aggravated a pre-existing degenerative back injury in his written and oral submissions. The Regulator responded to that contention in its written and oral submissions.
  1. [8]
    Section 32(3)(b)(i) of the Act provides that an 'injury' includes:
  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;
  1. [9]
    Mr Statham gave evidence on his own behalf. Mr Statham also led evidence from Dr Anne Hii, General Practitioner, and Dr Timothy O'Brien, General Practitioner, both of the Sunnybank Hills Medical Centre.
  1. [10]
    The Regulator contends that there is no contemporaneous factual or medical evidence to support Mr Statham's claim that he aggravated his lower back injury on either 17 November 2017 or on 8 February 2018 as he alleges.
  1. [11]
    The Regulator led evidence from Mr Thomas Budgen of CEA and Mr Neil Beattie, a former employee of CEA.
  1. [12]
    Having regard to the parties' contentions, the evidence and the parties' submissions, to determine this appeal, I need to determine:
  • whether the work events Mr Statham said occurred on 17 November 2017 and 8 February 2018 did occur; and, if they did
  • whether those events aggravated Mr Statham's pre-existing lower back injury within the meaning of s 32(3)(b)(i) of the Act; or
  • if those events did not occur, whether, in any event, Mr Statham's employment aggravated his pre-existing lower back injury within the meaning of s 32(3)(b)(i) of the Act.
  1. [13]
    For the reasons that follow, I find that Mr Statham did not suffer an injury within the meaning of s 32(3)(b)(i) of the Act.

Background

  1. [14]
    CEA is an organisation that provides vocational training for, amongst other persons, young men with moderate, intellectual disabilities who are directed to CEA through a disability services provider organisation.[11]Relevantly to this appeal, part of the philosophy of CEA, in respect of the training of such young people, is that project‑based training, as opposed to classroom training, is preferable.[12]
  1. [15]
    Prior to working for CEA, Mr Statham had worked as a motor mechanic, diesel fitter and teacher of diesel fitting.[13]Mr Statham also had a business building and selling large‑scale replica model sports cars.[14]
  1. [16]
    In about 2016, Mr Statham commenced casual employment as a teacher with CEA.[15]That followed on from Mr Budgen, who knew Mr Statham, contacting Mr Statham and informing him that CEA was thinking of having students build a two-thirds scale Lotus sports car.[16] Sometime in about 2017, Mr Statham's place of work with CEA was at a church hall - 'St David's Hall' - in Chelmer.[17]It does not seem to be in dispute that Mr Statham was teaching students by working on the Lotus sports car at St David's Hall in 2017 ('the Lotus project').
  1. [17]
    In 2017, CEA undertook a project, carried out at a workshop on Karen Avenue, Mermaid Beach at the Gold Coast ('the Gold Coast workshop') called the Aston Martin Ulster Program. That program involved students, referred to CEA from the Youth Justice office at Mermaid Beach, building a replica Aston Martin motor vehicle.[18]
  1. [18]
    Mr Budgen's evidence was that he had originally planned to build a MG replica vehicle, had a chassis made for such a vehicle, but that project was not proceeded with and the chassis for that vehicle was to become the chassis for the Aston Martin motor vehicle. Mr Budgen stated that the chassis for the Aston Martin was 200 to 300 mm longer than the MG chassis and, as a consequence, he asked Mr Statham, whom he considered to be a good welder, to attend the Gold Coast workshop for the purposes of extending the chassis so that it could be used for the Aston Martin replica.[19]
  1. [19]
    On 17 November 2017, Mr Budgen and Mr Statham travelled together to the Gold Coast workshop for the purpose of Mr Statham extending the MG chassis.[20]There is no dispute that they travelled in Mr Budgen's vehicle.[21]Mr Statham's evidence was consistent with Mr Budgen's evidence in this regard.[22]
  1. [20]
    There is also no dispute that in February 2018, the Lotus project had been completed and, by February 2018, CEA started another project to be completed in the garage at St David's Hall, namely, to build an MG Magnette K1 vehicle ('the MG project').[23]It is also not in dispute that Mr Statham was employed to work for CEA in respect of the MG project at St David's Hall.[24]

Did the 17 November 2017 event occur as alleged by Mr Statham?

Mr Statham's evidence

  1. [21]
    Mr Statham's evidence-in-chief was that after he had finished welding the Aston Martin chassis, Mr Budgen asked him if he would weld a (different) frame that was on a table with a filing cabinet on it. Mr Statham stated that to get to that frame to weld it, the filing cabinet had to be lifted off, so he and Mr Budgen lifted the filing cabinet together and put it on the floor. Mr Statham then stated that after he carried out the welding, Mr Budgen wanted the filing cabinet sitting back on the frame again, so he helped Mr Budgen lift the filing cabinet back. Mr Statham said the filing cabinet was a two‑door filing cabinet, and stated that it looked like one depicted in photograph number eight in Exhibit 1, but it was a different colour.[25]
  1. [22]
    In terms of the weight of the filing cabinet, Mr Statham said that it was heavier than what he expected it to be.[26]
  1. [23]
    Later in his evidence-in-chief, Mr Statham stated that:
  • the frame on which the filing cabinet was situated was a chassis that was different to the Aston Martin chassis ('the different chassis'); and
  • the different chassis was on a separate table to the one on which the Aston Martin chassis was located.[27]
  1. [24]
    Mr Statham stated that when he (and Mr Budgen) put the filing cabinet back on the table on which the different chassis was located, he twisted and felt some pain around his back area which, at that stage, was not severe but seemed to be extending around the right side of his body.[28]Mr Statham stated that the pain extended from the right side down to his testicles[29]and, at that point, he assessed the pain as being one or two on a scale of 10.[30]
  1. [25]
    Mr Statham stated that he left the Gold Coast at about 4.00 pm,[31] travelled back to Brisbane with Mr Budgen, and that when they were on their way home in the car, his pain went up to 10 on a scale of 10.[32]Mr Statham's evidence was that when he was in the car on the way back to Brisbane, he told Mr Budgen about the pain he was in and that, in response, Mr Budgen stated that he (MrBudgen) had a bad back too.[33]
  1. [26]
    After he got back to Brisbane, Mr Statham stated that, in respect of the pain he was suffering, he took Panamax and that he laid down on a hard floor on his back.[34]
  1. [27]
    There is no dispute that, on 1 December 2017, Mr Statham consulted Dr O'Brien.[35]Mr Statham stated that in the two-week period between 17 November 2017 and 1 December 2017, the pain was extending from the rear of his back, down his right side and to his testicles which was very painful, the pain varied and to lessen the pain he took Panamax and rested.[36]
  1. [28]
    Mr Statham stated that when he consulted Dr O'Brien, he '… virtually told him what happened, I believe' meaning that he told Dr O'Brien he had lifted a filing cabinet with Mr Budgen,[37]but later in his evidence stated that he could not remember what he actually told Dr O'Brien.[38]
  1. [29]
    Mr Statham asked Dr O'Brien to provide him with a letter because Dr O'Brien discussed with Mr Statham that he (Mr Statham) should not do any twisting and bending and that Dr O'Brien suggested Mr Statham just take a teaching role and not do any physical work. Such a letter, dated 1 December 2017, was provided and it is Exhibit 5. In that letter, Dr O'Brien states:

David is a patient at Sunnybank Hills Medical Centre. He is suffering from lower back pain associated with sciatic pain. This is aggravated by physical work including lifting, twisting, pushing and pulling. I have therefore advised him to refrain from these activities and to take on a different role within the company. We have discussed the opportunity of him teaching in a classroom scenario.

  1. [30]
    Mr Statham's evidence was that he showed the letter to Mr Budgen and that Mr Budgen stated to Mr Statham that if he (Mr Budgen) took the letter, or if he even read it, he would have to dismiss Mr Statham.[39]
  1. [31]
    Mr Statham's evidence was that following his consultation with Dr O'Brien on 1 December 2017:
  • he had four or five physiotherapy and acupuncture treatments;
  • he went back to work teaching at CEA's Chelmer premises and, over the Christmas period, his level of pain, down his right side and into his testicles, varied from two to three on a scale of 10;
  • on 5 February 2018, he consulted Dr Hii because he was concerned he had a hernia or cancer; and
  • after the Christmas break, he went back to work teaching for CEA in February 2018 which caused him pain but the pain had decreased.[40]
  1. [32]
    In cross-examination, Mr Statham:
  • agreed that he was told the chassis for the Aston Martin at the Gold Coast workshop had to be extended and agreed that the reason he travelled to the Gold Coast with Mr Budgen on 17 November 2017 was for that purpose;[41]
  • denied seeing or meeting Mr Neil Beattie at the Gold Coast workshop on that day;[42]
  • made the extensions to the Aston Martin chassis;[43]
  • denied the propositions that:
  1. –Mr Budgen did not ask him to do anything else and that he left the Gold Coast with Mr Budgen at 2.00 pm that afternoon;[44]
  1. –on the drive back to Brisbane, when he mentioned his back, it was not because of specifically lifting a filing cabinet;[45]and
  1. –on 17 November 2017, the different chassis (which he said was depicted in Exhibit 1, photograph 7, but which did not have pushbike wheels when he lifted it) was not on a table and did not have a filing cabinet on it;[46]and
  • stated that it was hard to remember exactly what weight the filing cabinet was, he knew roughly what an empty filing cabinet weighed, the one he lifted appeared heavier than normal and that it was '… probably close' to 80 kgs in weight.[47]
  1. [33]
    In his s 132A application for assessment of permanent impairment signed on 2 September 2019, Mr Statham stated that the event (resulting in the injury that occurred on 17 November 2017 at approximately 3.00 pm) was that he '… was asked and directed by Tom Budgeon [sic] to life [sic] a filing cabinet which weighed approximately 80kg.'[48]
  1. [34]
    In further cross-examination, Mr Statham, in respect of his consultation with Dr O'Brien on 1 December 2017:
  • (when it was put to him that he did not tell Dr O'Brien about a specific incident occurring on 17 November 2017 and that he only told Dr O'Brien that, generally, activities involving lifting, twisting, pushing and pulling caused aggravations of his back pain) stated that he could not remember exactly what he said, but that he did have problems with twisting, bending and pulling;[49]
  • agreed that Dr O'Brien informed him that he had to stop doing physical work and that he should enquire as to whether there was an opportunity for teaching in a classroom scenario;[50]and
  • agreed that when he saw Dr O'Brien, he knew the Lotus project was finishing and that CEA had no other project for him to work on.[51]
  1. [35]
    In respect of Mr Statham's conversation with Mr Budgen about the letter provided by Dr O'Brien, Mr Statham:
  • agreed that he told Mr Budgen that it had been suggested to him that he should start doing teaching in the classroom scenario,[52]but then later when that proposition was put to him again, stated that he had the letter in his hand, told him (Mr Budgen) what was in the letter and that in response, Mr Budgen said that if he (MrStatham) gave him the letter or even if Mr Budgen just read it, Mr Budgen would have to sack him;[53]
  • agreed that at that time (December 2017), he did not have any qualifications for formal teaching, such that he was not delivering class or course content;[54]
  • after initially saying that he did show that letter to Mr Budgen, stated that he did not show the letter to Mr Budgen;[55]
  • disagreed with the proposition that Mr Budgen told him that he did not have anything for him because he could not do teaching because he had not finished a certificate;[56]and
  • agreed that he finished work with CEA in mid-December 2017 when the Lotus project finished.[57]
  1. [36]
    In re-examination, Mr Statham stated:
  • on 17 November 2017, at the Gold Coast workshop, as far as he could remember, there was only Mr Budgen and himself there on that day;[58]
  • he made an entry in his diary on the date for 17 November 2017, namely:

Gold Coast with Tom. Weld chassis, bending back, helped Tom lift filing cabinet onto table. Back started to pain again. Pain down legs and on my right side;[59]and

  • there were subsequent records in his diary about the pain and extent of the pain from which he was suffering.[60]

Mr Budgen's evidence

  1. [37]
    Mr Budgen's evidence was that on 17 November 2017, after Mr Statham had carried out the welding work on the Aston Martin chassis, he was not required to do any other work at the Gold Coast workshop. Indeed, Mr Budgen's evidence was that the work that was performed by Mr Statham was completed in the early afternoon and they then both drove back to Brisbane in his car. Mr Budgen further stated that during that trip, Mr Statham did not make any complaint to him (Mr Budgen) about any physical symptoms.[61]
  1. [38]
    Mr Budgen was then taken to Exhibit 1, photograph 7, which depicts the chassis or frame of what Mr Budgen described as a 'billycart', which had wheelchair wheels attached to it and which was located at the Gold Coast workshop.[62]Mr Budgen denied that there was any need for Mr Statham to do any work on that chassis.[63]Mr Budgen expressly denied that on 17 November 2017 he had to lift a filing cabinet with Mr Statham.[64]
  1. [39]
    Mr Budgen stated that in December 2017 he had a discussion with Mr Statham about a letter that Mr Statham had from a doctor which indicated that Mr Statham had back problems and that the advice from Mr Statham's doctor was that Mr Statham should stop any manual activity. Mr Budgen's evidence was that after Mr Statham had read the letter to him, he told Mr Statham that he was disappointed and that if he (Mr Statham) handed the letter to Mr Budgen confirming the advice that Mr Statham was not allowed to work anymore, then '… we would have to stop work immediately on the Lotus totally.' Mr Budgen stated that he told Mr Statham that he (Mr Budgen) had no other work for Mr Statham other than to continue doing the physical work on the Lotus.[65]
  1. [40]
    Mr Budgen's further evidence was that Mr Statham finished doing work for CEA in mid‑December 2017 because there was no further work for him to do at that stage.[66]
  1. [41]
    In cross-examination, Mr Budgen:
  • stated, after being referred to his outline of evidence, that Mr Statham, on the way back to Brisbane from the Gold Coast on 17 November 2017, may have mentioned his back pain, but that Mr Statham made no complaint about his back[67] and that Mr Statham did make some comment about his back pain which was quite normal (for Mr Statham);[68]
  • stated that he and Mr Statham travelled down to the Gold Coast and back in Mr Budgen's car for the purposes of Mr Statham doing some welding as part of his (Mr Statham's) duties;[69]
  • stated that he did not recall seeing the frame Mr Statham was to weld having a filing cabinet resting on it to give it some stability and that he did not assist Mr Statham in taking a filing cabinet off the table where the frame was located and putting the filing cabinet back on the table;[70]
  • stated that on that day, despite Mr Beattie working for CEA, Mr Beattie had that day off, it was only him (Mr Budgen) and Mr Statham who were on site, and Mr Beattie did not let him and Mr Statham into the building on 17 November 2017;[71]
  • stated that at the Gold Coast Workshop, there were two black filing cabinets and there were two, four door filing cabinets that '… were creamy colour';[72]
  • in respect of Dr O'Brien's letter dated 1 December 2017, stated that Mr Statham read that letter to him and that the letter indicated that Mr Statham was suffering from pain from lifting tasks at work;[73]and
  • denied it was the case that as part of his regular conversations with Mr Statham, Mr Statham stated that lifting, twisting, pushing and pulling was aggravating his pain.[74]

Mr Beattie's evidence

  1. [42]
    In November 2017, Mr Beattie was employed by CEA to manage a youth skills program. The place of his employment was the Gold Coast workshop where the replica Aston Martin vehicle was being constructed.[75]
  1. [43]
    Mr Beattie stated that on 17 November 2017, the chassis for the Aston Martin was still on the table as depicted in Exhibit 1, photographs 2 to 6.[76]Mr Beattie's further evidence‑in‑chief was that there was no other chassis of another vehicle at the Gold Coast workshop on 17 November 2017[77]and that there was no chassis being constructed for a billycart at that date.[78]
  1. [44]
    According to Mr Beattie, as of 17 November 2017 at the Gold Coast workshop in the office area where he sat, there was a four‑door filing cabinet to his left and a couple of two-door filing cabinets to his right.[79]Mr Beattie also stated that there were no filing cabinets in the workshop area as depicted in Exhibit 1, photographs 4 and 5.[80]
  1. [45]
    After Mr Beattie was shown the photographs of the two filing cabinets as depicted in Exhibit 1, photograph 8, he stated that as of 17 November 2017:
  • there were two-door filing cabinets at the Gold Coast workshop;
  • there was nothing in them and they did not weigh 80 kg because they were being moved around a lot to be used in a project; and
  • he did not remember any filing cabinets being on the table.[81]
  1. [46]
    In cross-examination, Mr Beattie:
  • agreed that the two filing cabinets in Exhibit 1, photograph 8, depicted them after being painted black and that prior to them being painted, one was cream in colour and one could have been grey but that both of them could have been cream; [82]
  • stated that it could have been the case that he was not at the Gold Coast workshop on 17 November 2017;[83]
  • stated that he was '… 100 per cent' he did not stay during the day on 17 November 2017, but he could have opened the workshop;[84]and
  • stated there were two tables in the area depicted in Exhibit 1, photographs 2, 3, 4 and 5.[85]

Dr O'Brien's evidence

  1. [47]
    The record of the consultation by Dr O'Brien with Mr Statham on 1 December 2017 relevantly stated:

works as teacher

heavy lifting

analgesia

back exercises

letter for work

will review for workcover next week[86]

  1. [48]
    Dr O'Brien had no other recollection of that consultation other than what was in that record.[87]
  1. [49]
    Dr O'Brien was consulted by Mr Statham again on 2 September 2019, when Mr Statham presented requesting a WorkCover certificate for an injury reported in late 2017. At that consultation, Dr O'Brien records that Mr Statham stated that he had a back injury whilst lifting a filing cabinet on 17 November 2017.[88]
  1. [50]
    In cross-examination, Dr O'Brien agreed that if Mr Statham, on 1 December 2017, told him about a specific incident, then it would have been Dr O'Brien's practice to record that in the consultation note.[89]
  1. [51]
    Dr O'Brien further agreed that the reason he wrote the letter for Mr Statham dated 1 December 2017 (Exhibit 5), which stated that Mr Statham was suffering from lower back pain associated with sciatica pain which was aggravated by physical work including lifting, twisting, pushing and pulling, was because that was what Mr Statham told him at the consultation on 1 December 2017.[90]Dr O'Brien also stated that he could not remember Mr Statham describing a specific event.[91]Dr O'Brien further agreed that it was plausible that, because Mr Statham did not return to him the following week, it could be assumed that Mr Statham did not need any further treatment.[92]

Dr Hii's evidence

  1. [52]
    Dr Hii gave evidence that Mr Statham first consulted her on 13 June 2008 and had subsequently consulted her on a number of occasions.[93]
  1. [53]
    Mr Statham consulted Dr Hii on 26 February 2018 during which Dr Hii recorded that:
  • Mr Statham was applying for workers' compensation in respect of inguinal hernias;
  • Mr Statham had helped Mr Budgen lift a filing cabinet on 17 November 2017 and that he felt low back pain and pain down the right side of his groin into his testicle with pain being on a scale of about 8 or 9/10; and
  • the low back pain resolved within three to four days, but he reached up to drill in a screw for a welding screen in early February which aggravated his right groin pain.[94]
  1. [54]
    Mr Statham also had earlier consulted Dr Hii on 5 February 2018 during which Dr Hii recorded that Mr Statham complained of two to three weeks of pain in his right groin and pain in the scrotum radiating up to the right groin.[95]

The Regulator's submissions

  1. [55]
    The Regulator submitted that Mr Statham's claim that, on 17 November 2017 he was asked to lift a filing cabinet that weighed approximately 80 kg, can be safely rejected because:
  • the allegation was rejected by Mr Budgen, who says the event did not occur; and
  • on the evidence of Mr Beattie, who was managing the Gold Coast workshop at the time, the work area was cleaned up on 16 November 2017, and there was no filing cabinet on a table and, further, that while there were two two‑drawer filing cabinets present, they did not weigh 80 kg as claimed by Mr Statham.[96]
  1. [56]
    In oral submissions, the Regulator submitted that:
  • Mr Statham's statement of facts and contentions did not mention anything about welding a second chassis and that Mr Budgen's evidence was that the billycart chassis was a project for students to demonstrate their welding experience and skills, the consequence of which was that there was no need for anyone to professionally alter that chassis as opposed to Mr Statham altering the Aston Martin chassis;[97]
  • the weight of evidence is that there was no two-drawer filing cabinet on a separate table with a separate chassis, there was no need for Mr Statham to have done any extra welding work which necessitated the moving of a filing cabinet and there is the conundrum of whether an empty two-drawer filing cabinet could weigh 80 kg;[98]
  • while Mr Budgen was uncertain as to what was said about any back injury or complaint of back pain on the drive back to Brisbane from the Gold Coast on 17 November 2017, there was certainly no reporting of the back injury Mr Statham said he sustained on 17 November 2017 and that while there may have been a description of back pain, as Mr Budgen stated, that was not unusual (and in this regard, reference was made to Mr Statham's evidence about regular episodes of pain involving bending, stretching or lifting);[99]
  • by reference to the decision of the Court of Appeal in Hansen v Patrick,[100]in particular the joint judgment of Fraser and Morrison JJA[101]- which is that in most cases in which a judge rejects witnesses' evidence, that does not involve a finding that the witnesses are liars because most witnesses, whose evidence is rejected, are not liars - the Commission did not have to find Mr Statham to be a liar to reject his evidence;[102]and
  • in the examination of Mr Statham by Dr O'Brien on 1 December 2017, no specific reference was made by Mr Statham to a specific lifting event.[103]

Mr Statham's submissions

  1. [57]
    The principal submission put on behalf of Mr Statham was that at no stage, in his evidence, was he inaccurate, evasive or not telling the truth, he was described by Mr Budgen (in his evidence) as honest[104]and that he was a person who was doing his best to give evidence of the work-related events.[105]
  1. [58]
    It was also submitted that Mr Statham's love for the job was demonstrated by the fact that he did not give Dr O'Brien's letter (dated 1 December 2017) to Mr Budgen so as to keep his job and that when the event in February 2018 occurred, he did give the medical certificate to Mr Budgen knowing that that would probably cause him to lose his job.[106]
  1. [59]
    Mr Statham further submitted that small things did make a difference and pointed to:
  • Mr Budgen recanting and stating that Mr Statham did mention back pain on the trip back to Brisbane from the Gold Coast;[107]
  • the equivocality of Mr Beattie's evidence about whether or not he opened the door to the Gold Coast workshop on 17 November 2017;[108]and
  • Mr Statham describing the filing cabinet as cream in colour and that he would not remember that unless he had some involvement with a cream filing cabinet.[109]
  1. [60]
    Mr Statham further submitted:
  • in respect of the submission made by the Regulator that his back pain was the consequence of his lower back degeneration, such a proposition was not put to either Dr Hii or Dr O'Brien and that both doctors were of the view the work‑related events were causative of his symptoms;[110]
  • Mr Statham was not the sort of person who would make up the events he said occurred on 17 November 2017 (and in early February 2018);[111]
  • Mr Statham's underlying degenerative condition was exacerbated by the two work events;[112]and
  • there did not have to be a determination that the filing cabinets weighed 80 kgs, but that they were heavier than expected.[113]
  1. [61]
    In written submissions, Mr Statham also submitted that:
  • it was not asserted that there was another non-work-related event at home that aggravated his degenerative condition,[114]and that no non-work‑related event was put (by the Regulator) to Dr Hii or Dr O'Brien[115]or to him (Mr Statham);[116]and
  • Mr Budgen stated his back was aggravated by work activities which were '… hard work'.[117]
  1. [62]
    By way of conclusion, Mr Statham submitted that:
  • he was said (by Mr Budgen) to be an honest man;
  • despite his hearing difficulties and his anxious nature, he gave evidence in a truthful manner;
  • he did not shy away from his past medical history and WorkCover claims in regard to his back;
  • he does not dispute he had a degenerative back, which is not surprising given his age of 75 years;
  • he gave a history of two work‑related events being on 17 November 2017 and on 8 February 2018;
  • it is not disputed that he was at work on those dates;
  • he gave a version of those two events to Dr O'Brien and Dr Hii;
  • no alternative non-work‑related mechanism of injury was put to him;
  • Mr Budgen (contrary to earlier evidence given) confirmed that Mr Statham complained of back pain on the trip back from the Gold Coast on 17 November 2017;
  • Mr Budgen confirmed that his (Mr Statham's) work duties aggravated his back;
  • it would seem remarkable that Mr Statham would remember a cream filing cabinet on 17 November 2017 if he did not have some involvement with it;
  • Mr Beattie confirmed there were cream filing cabinets on 17 November 2017 which were later painted black;
  • whilst there is some dispute about the circumstances of the events of 17 November 2017 (and 8 February 2018), it is not in dispute that Mr Statham was at work both days and he gave a history to doctors of injury occurring on both dates; and
  • his (Mr Statham's) version of events is more plausible given:
  1. –Mr Budgen's untruthful evidence that he (Mr Statham) did not complain of back pain on the trip back from the Gold Coast on 17 November 2017 (later recanted);
  1. –Mr Beattie's untruthfulness of being present and at work on 8 February 2018[118](later recanted); and
  1. –the versions given to both Dr Hii and Dr O'Brien of work‑related events being causative of his renewed back symptoms in 2017 and 2018.[119]

The 17 November 2017 event as alleged by Mr Statham did not occur

  1. [63]
    There is a significant factual dispute in respect of this aspect of the case.
  1. [64]
    It was Mr Statham's evidence that after the work on the Aston Martin chassis was completed, Mr Budgen asked him to weld a different chassis. Mr Statham stated that a heavy, two-door filing cabinet was on top of the different chassis, which was located on another table in the workshop, and that he and Mr Budgen had to lift that filing cabinet off so that he (Mr Statham) could perform the welding work on the other chassis. Mr Statham's evidence was that he and Mr Budgen had to lift the filing cabinet back onto the table, and it was at about that point that he felt some pain around his back area which extended down his right side.
  1. [65]
    Mr Budgen denies this specific event occurred. Mr Budgen denies absolutely that after the welding work on the Aston Martin chassis was completed, he asked Mr Statham to undertake welding work on a different chassis which involved them moving and lifting a filing cabinet so as to undertake that work.
  1. [66]
    The resolution of this factual dispute is necessary in the determination of whether Mr Statham has a compensable injury within the meaning of the Act.
  1. [67]
    I am conscious that I should be cautious about determining the credit of Mr Statham, Mr Budgen and Mr Beattie solely by my observations of them when they were giving their evidence.[120]A better guide to determining the reliability of their evidence is whether they have previously given an account of the events in question and, if so, whether that previous account is consistent or inconsistent with the evidence given by them and the plausibility and apparent logic of the events described by them.[121]Further still is a consideration of the consistency of the account of the events described by them as compared with other objectively established facts.[122]
  1. [68]
    I am unable to accept the evidence of Mr Statham. There are a number of reasons for this.
  1. [69]
    First, the evidence of both Mr Statham and Mr Budgen was that the reason they went to the Gold Coast workshop was for Mr Statham to extend the Aston Martin chassis. That evidence is consistent with:
  • Mr Budgen's denial that Mr Statham was asked to weld a different chassis to the Aston Martin chassis and his denial that he helped Mr Statham lift a filing cabinet on and off a table to allow any such other welding to occur;[123]and
  • Mr Beattie's evidence that there was no other chassis of any other vehicle present at the Gold Coast workshop on 17 November 2017[124]and noting Mr Beattie's evidence (in cross-examination) that he was there on 16 November 2017 and every other day that week[125](other than 17 November 2017).[126]
  1. [70]
    Secondly, Mr Beattie's evidence was that while he had two-door filing cabinets at the Gold Coast workshop, they were empty and that they did not weigh 80 kgs.[127]
  1. [71]
    Thirdly, on Mr Statham's own evidence, while he mentioned back pain to Mr Budgen on the trip back to Brisbane on 17 November 2017 (which Mr Budgen ultimately accepted in cross-examination), there is no evidence Mr Statham mentioned or reported to Mr Budgen, at any time, that the pain he said he felt was connected with putting a filing cabinet back onto a table that same day. It seems implausible that if Mr Statham's lifting of the filing cabinet (with Mr Budgen) back onto a table was the activity that caused his back pain, he would not have told Mr Budgen that incident was the cause of the back pain that he (Mr Statham) did mention to Mr Budgen during the drive back to Brisbane.
  1. [72]
    Fourthly, on the evidence before me, the lifting event as described by Mr Statham in his evidence was not reported to Dr O'Brien when Mr Statham consulted him two weeks later on 1 December 2017. Dr O'Brien made no note of that specific issue and his evidence was that he could not remember Mr Statham raising that specific event. It was not until 2 September 2019 that Mr Statham reported the filing cabinet lifting issue to Dr O'Brien.
  1. [73]
    Fifthly, the first time Mr Statham reported the filing cabinet lifting issue (on 17 November 2017) to a medical practitioner was to Dr Hii when he consulted her on 26 February 2018. Dr Hii recorded that Mr Statham reported he '… felt low back pain and pain down on R side of groin into testicle pain scale about 8-9/10' and that '… low back pain resolved within 3-4 days.' Yet, in his evidence-in-chief, Mr Statham stated that:
  • at the point of putting the filing cabinet back on the table, he assessed the pain to be one or two on a scale of ten;[128]
  • on the way back to Brisbane with Mr Budgen, his pain was up to 10 on a scale of 10;[129]and
  • between 17 November 2017 and 1 December 2017 (when he saw Dr O'Brien), the pain was extending from the rear of his back, down his right side and to his testicles which was very painful, the pain varied and to lessen the pain he took Panamax and rested.[130]
  1. [74]
    These issues in the evidence and the inconsistencies between Mr Statham's evidence and other established facts give me cause to not accept Mr Statham's evidence.
  1. [75]
    I acknowledge that Mr Budgen's evidence of Mr Statham as being an honest man.[131]However, this very broad evidence of Mr Budgen's evidence, in light of my analysis of the objectively established and specific evidence I have referred to immediately above, does not persuade me that the event Mr Statham said occurred on 17 November 2017 did in fact occur.
  1. [76]
    For these reasons, my view is that, on the balance of probabilities, the event Mr Statham says occurred on 17 November 2017 did not occur.

Conclusion

  1. [77]
    As a consequence, the event Mr Statham said occurred on 17 November 2017 could not have aggravated Mr Statham's pre-existing lower back injury within the meaning of s 32(3)(b)(i) of the Act.

Did the 8 February 2018 incident occur as alleged by Mr Statham?

Mr Statham's evidence

  1. [78]
    Mr Statham stated that:
  • he was lifting up a fairly heavy Land Rover Discovery sign to be used as a welding screen to stop sparks from getting on the other articles in the area (which was in the garage at St David's Hall), and, in the course of doing so, he was standing on a small child's chair, he was reaching with his left hand holding the sign and then, with a screw in the (electric) drill, he was screwing the sign onto a wooden beam and that he completed that process every few feet;[132]
  • the room (where the screen was being put up) was very hot on that day;[133]
  • the sign was six to eight metres in length and about three metres high, it was an old sign, he did not know where it came from but that Mr Budgen had brought the sign, he did not know the date Mr Budgen brought it to St David's Hall[134] but he helped MrBudgen unload the sign from the car;[135]
  • Mr Budgen said he paid about $60 for it;[136]
  • the sign had written on it 'Land Rover Discovery';[137]
  • around half an hour into putting up the sign, he began to experience pain, there was no one there when he was putting up the sign, and the pain, on a scale of 10, was at 10;[138]
  • he recorded what occurred on the day in his diary,[139]being 8 February 2018, in which he stated: 'CEA - welding screen - Pain down right side down to my testicles on right';[140]
  • there was no other person with him when he was putting up the screen, but while he was putting up the sign, a woman did come into that area and he said to her that his back was killing him;[141]
  • on 13 and 26 February 2018, he went to see Dr Hii, he thought he explained to her how his injury occurred and that she gave him a workers' compensation medical certificate, dated 26 February 2018 (Exhibit 6);[142]and
  • on 27 February 2018, he left that medical certificate on Mr Budgen's desk and around lunchtime, Mr Budgen asked him to come and see him and when he did, Mr Budgen held up the medical certificate and said: 'Because you're giving me this, you're sacked', following which he (Mr Statham) went home.[143]
  1. [79]
    In cross-examination, Mr Statham:
  • stated that he could not remember the time of day the incident occurred, but thought it was probably mid-morning, and that he could not remember the date he made the entry in the diary but that he '… would have put it on the same day';[144]
  • disagreed with a suggestion that Mr Budgen did not purchase the Land Rover Discovery sign until the afternoon of 8 February 2018;[145]
  • disagreed with the suggestion that he did not help Mr Budgen unload the sign, disagreed that the Land Rover Discovery sign was cut up into small pieces to make individual screens like a curtain, and disagreed it was those pieces which he helped Mr Budgen screw up and put into the rafters;[146]
  • disagreed with a suggestion that it was the next week, with Mr Budgen, that he put the sign up;[147]
  • agreed that:
  1. –he saw Dr Hii on 5 February 2018 and told her that he had had two to three weeks of pain in his right groin and Dr Hii ordered ultrasounds to be taken of that area;
  1. –when he saw Dr Hii on 16 February 2018, Dr Hii told him the results of the ultrasound and he was still discussing the pain he was having around the hernia site in his groin; and
  1. –on 26 February 2018, Dr Hii gave him the workers' compensation medical certificate which was for the same injury in respect of which he had seen Dr Hii on 5 February 2018 and on that day he told her about an incident that occurred when lifting a filing cabinet on 17 November 2017;[148]
  • disagreed that when he told Dr Hii on 26 February 2018, about the incident lifting the filing cabinet, that the back pain had resolved within three to four days, and stated that the pain had not gone away by the time he reached up to drill in the screw at Chelmer;[149]
  • agreed that he had had a pattern, for many years, including in 2017, of regular episodes of back pain and was suffering from the same type of symptoms in 2018 that he described to Dr Hii;[150]and
  • disagreed, when put to him that on the date he left the workers' compensation medical certificate on Mr Budgen's desk, that Mr Budgen stated:
  1. –the certificate restricted him (Mr Statham) in the type of activities he could do;
  1. –because he already had a bad back and now had a claim for a hernia, he (Mr Budgen) could not give him any work because it would aggravate his symptoms; and
  1. –that he (Mr Budgen) did not have any roles for him and it was best that he (Mr Statham) go home.[151]
  1. [80]
    In re-examination, Mr Statham stated that:
  • the only thing that Mr Budgen said to him after he attended Mr Budgen's office after leaving the workers' compensation medical certificate on his desk was: 'Because you've given me this, you're sacked' and that was the totality of the conversation;[152]and
  • the reason he changed his claim for the injuries he said he suffered on 17 November 2017 and 8 February 2018, from being a hernia to being a back injury, was because of the medical advice he received from Dr Hii.[153]

Mr Budgen's evidence

  1. [81]
    Mr Budgen stated that he had a discussion with the local priest at Chelmer about undertaking the MG project. The priest informed Mr Budgen of a concern about welding and grinding sparks flying in the garage area and asked Mr Budgen to make sure the area was 100% fireproof due to wooden furniture stored in the same location.[154]
  1. [82]
    In that regard, the action taken by Mr Budgen was to create a separate welding booth with green welding screens and then a second barrier with white vinyl screens, and that he purchased a white vinyl screen from Prime Signs at Springwood at 2.00 pm on 8 February 2018.[155]Mr Budgen's evidence was that after he purchased the vinyl screen, he loaded it (and another floor cover screen he purchased on the same day) into the boot of his vehicle, came back to his office at Chelmer and that he then unloaded, unassisted, the vinyl sign and the floor cover screen into his office at Chelmer.[156]
  1. [83]
    Mr Budgen referred to Exhibit 15 which was a photograph of a Land Rover Discovery screen. Mr Budgen stated that the screen was cut to fit between the blue poles depicted in Exhibit 7, being the garage at St David's Hall.[157]Mr Budgen further stated that the screen was cut so that the pieces could overlap so that sparks would not get through, but that the screens could be lifted to be able to walk through and that members of the church could walk through as well to remove items they wanted to move.[158]Mr Budgen further stated that he cut the screen.[159]
  1. [84]
    Mr Budgen was asked when the screens were put up in the garage at St David's Hall. Mr Budgen stated that he did not know the exact date because he had not recorded the date (in his diary) but that it would have been in the week following the screen being purchased.[160]
  1. [85]
    Exhibit 14 included Mr Budgen's diary for 8 February 2018. The diary relevantly records, in respect of the time of 2.00 pm: 'Prime Signs Springwood'. Mr Budgen's diary entry for that date and that time does not specify any other information.
  1. [86]
    Mr Budgen then stated that:
  • he and Mr Statham put (the cut screens) up on the rafters, that Mr Statham was up on the stand, Mr Statham had a power drill and he was screwing the screws in and that he (Mr Budgen) was feeding (the cut screens) up to Mr Statham as he (Mr Statham) went;[161]
  • during the course of putting the screen up on the rafters, Mr Statham stated a couple of times that '… Oh, this is not easy' and '… It's not easy';[162]
  • (what Mr Statham was doing) was not easy '… when you have to reach above your head to screw stuff in' but that Mr Statham did not talk about any groin pain;[163]
  • in relation to the workers' compensation medical certificate dated 26 February 2018, it was left on his desk by Mr Statham, Mr Statham rang him to tell him that he had left it on his desk and Mr Budgen told Mr Statham: 'Well, we're going to have to pull the pin on the - on the project because you can't work any further on the project'[164]and the reason he told Mr Statham that was because there was no work for him other than the manual work of building the car;[165]and
  • he told Mr Statham he would have to leave and take his gear because he could not offer him any further work because any further work he did do was going to create harm.[166]
  1. [87]
    In cross-examination, Mr Budgen:
  • agreed that, having regard to Exhibit 7, the 'sheet' went down from the bookcase to the end of the wall across the end of the back, and back up somewhat on the left;[167]
  • generally agreed the size of the second-hand 'canvas shield' brought to St David's Hall by him was about five to six metres by about two to three metres;[168]
  • agreed that he advised Mr Statham when he bought the sheet second hand it was either $50 or $60 and that he and Mr Statham took the sign out of his boot;[169]
  • agreed that he then required Mr Statham to erect the sign in the area previously referred to in Exhibit 7, namely, in the area on the right of the area depicted in Exhibit 7, across the back of that area and down a bit to the left of that area; but in so agreeing, stated he and Mr Statham erected the sign;[170]
  • stated that the purpose of putting up the canvas sign, which was about five to six metres by three to five metres, was to provide a secondary barrier for sparks flying from metal grinding;[171]
  • stated that there were several young ladies who worked in the CEA office;[172]
  • denied that the vinyl sign was not cut up and denied it was erected at St David's Hall in one piece;[173]
  • stated he was aware that the physical activities Mr Statham was performing at work was aggravating his back pain;[174]
  • stated that he had never known Mr Statham to lie to him, to be dishonest or to make a false statement to him (Mr Budgen) and that Mr Statham was a very good worker;[175]and
  • stated that Mr Statham was a person who '… loved doing the work, particularly seeing it was a Lotus and he particularly loved working with disadvantaged boys' and that he (Mr Statham) was very keen to continue his involvement in those activities.[176]
  1. [88]
    In re-examination, Mr Budgen stated that he was aware that in 2017 Mr Statham was continuing to do his own projects constructing vehicles at home, as well as working for CEA.[177]

The Regulator's submissions

  1. [89]
    The Regulator submitted that:
  • it should be accepted that Mr Budgen helped Mr Statham install, what it submits, were vinyl curtains (as opposed to one curtain);[178]
  • that event occurred in the week after 8 February 2018;[179]
  • Mr Budgen's evidence should be accepted that the sign was cut up into panels, so as to create a bit of a doorway between the posts seen in Exhibit 7, because it was a far more practical set up in that people could get to and from what was stored behind the screens;[180]and
  • on Mr Statham's version, there is a completely enclosed area that would prevent people from moving in and out when welding was not occurring.[181]

Mr Statham's submissions

  1. [90]
    Mr Statham submitted that:
  • there was no doubt that curtains were hung on 8 February 2018 at the premises;[182]
  • the work was described as hard work by Mr Budgen and that he described Mr Statham being on a stool reaching up screwing in the canvass;[183]and
  • whether or not there was a whole canvas sheet or pieces of the canvas sheeting, at the end of the day there was canvas sheeting and on both versions of events, he (Mr Statham) was carrying out the activity as described by Mr Budgen which was consistent with what he (Mr Statham) told Dr Hii on 26 February 2018.[184]
  1. [91]
    Mr Statham also submitted that:
  • it was the case that he had a degenerative back and a summary of his attendances at the Sunnybank Hills Medical Centre from 8 November 2013 to 26 February 2018 (summarised by Mr Statham in paragraph 31 of his written submissions) was that when he suffered back pain he usually gives a reason for it such that when he does have a back problem he tells the doctors the cause, for example:
  1. –on 21 March 2016, he reported that he had exacerbated back pain working on painting a fence;
  1. –on 22 August 2017, he reported a minor exacerbation when working on a car which resolved with rest; and
  1. –on 1 December 2017, back pain caused by heavy lifting working as a teacher;[185]and
  • he gave very detailed evidence about the work he said contributed to his back pain when he saw Dr Hii on 26 February 2018, such that it would be difficult to contend that that evidence was a fabrication.[186]
  1. [92]
    Mr Statham further submitted that Mr Budgen described the work on 8 February 2018 as 'hard work'[187]and that Mr Budgen confirmed that Mr Statham's work duties aggravated his back.[188]

The 8 February 2018 event did not happen as alleged by Mr Statham

  1. [93]
    It has not been an easy task to assess this allegation of fact by Mr Statham. The evidence of Mr Statham and Mr Budgen is consistent in some respects and inconsistent in others. Some other established evidence supports Mr Statham's version of events and other established evidence does not.
  1. [94]
    However, having regard to all the evidence, I am unable to find that, on the balance of probabilities, the event happened as Mr Statham alleges happened on 8 February 2018. There are a number of reasons for this.
  1. [95]
    First, in his 2018 application, Mr Statham contended that the event of reaching up to drill in a screw for a welding screen was in early February and he was then examined by Dr Hii on 5 February 2018.[189]Dr Hii, in cross-examination, stated that based on what Mr Statham had told her, the event (of reaching up with the drill to screw in the welding screen) occurred on 5 February 2018.[190]That evidence is inconsistent with MrStatham's evidence that the event occurred on the same day he said he diarised the event,[191]namely, 8 February 2018.
  1. [96]
    Secondly, the Regulator's submission that the Commission should accept Mr Budgen's evidence that the Land Rover Discovery sign was cut up into smaller pieces, and installed in pieces, is a meritorious submission.
  1. [97]
    Mr Budgen's evidence was that the sign was cut up into panels to fit between the blue posts depicted in Exhibit 7. Mr Budgen said this was so the screens would overlap to shield against sparks; and so that the screens could be lifted and people could walk through them to get to and from what was stored behind the screens.
  1. [98]
    It is not in dispute that the purpose of the screens was to provide a shield against welding and grinding sparks occurring in the area where CEA work was being undertaken. Having regard to what is depicted in Exhibit 7, if persons wished to enter the area to the right of the welding screens and remove items in that area, then Mr Budgen's evidence referred to above is more plausible than Mr Statham's evidence that the sign (measuring six to eight metres in length and about three metres high according to Mr Statham)[192]was put up in one piece.
  1. [99]
    As a matter of common sense, having regard to what is depicted in Exhibit 7, if a screen, in one piece, extended from the bookcase down to the back wall and then to the left, so as to enclose a welding area, it would be impracticable for persons to enter through that welding area to have access to an area to the right of the screen and remove items from behind the screen. However, if the Land Rover Discovery sign was cut into smaller pieces, about the size of the distance between the blue poles as depicted in Exhibit 7, then that would be a far more practicable way of persons being able to enter an area on the right side of the welding area and retrieve items.
  1. [100]
    Thirdly, accepting Mr Budgen's evidence that the Land Rover Discovery sign was cut up into smaller pieces for the purpose he gave, then that evidence is consistent with Mr Budgen's other evidence that:
  • it was he (Mr Budgen) who cut up the sign; and
  • both he and Mr Statham installed those smaller pieces as welding screens.
  1. [101]
    I accept Mr Budgen's evidence that, during the time they were installing the smaller pieces of the screen, that Mr Statham said to him words to the effect that that work was not easy. However, Mr Statham's precise claim is that his back pain was brought on from him installing the sign in circumstances where it had not been cut into smaller pieces and from him installing the sign on his own.
  1. [102]
    For these reasons, I am not persuaded that the event Mr Statham said occurred on 8 February 2018 at St David's Hall occurred.

Conclusion

  1. [103]
    As a consequence, the event Mr Statham said occurred on 8 February 2018 could not have aggravated Mr Statham's pre-existing lower back injury within the meaning of s 32(3)(b)(i) of the Act.

In any event, did Mr Statham's employment aggravate his pre-existing lower back injury within the meaning of s 32(3)(b)(i) of the Act?

  1. [104]
    Both parties made submissions about whether, in any event, Mr Statham's employment aggravated Mr Statham's pre-existing lower back injury within the meaning of s 32(3)(b)(i) of the Act. As a matter of fairness to Mr Statham, I must consider those submissions.
  1. [105]
    In my view, having regard to the submissions made by the parties and to the evidence, a material consideration is whether Mr Statham's employment was a significant contributing factor to any aggravation of his lower back injury.

The Regulator's submissions

  1. [106]
    The Regulator submitted that Mr Statham has a long history of low back pain and from 2008 he attended at the Sunnybank Hills Medical Centre, mainly on Dr Hii.[193]
  1. [107]
    The Regulator, by reference to Exhibit 3, being Mr Statham's Patient Health Summary from the Sunnybank Hills Medical Centre, set out Mr Statham's complaints of low back pain, including the investigations and treatment undertaken, from 13 June 2008 to 14 December 2016.[194]In the record of the consultation on 16 June 2008, Dr Hii records Mr Statham's past history to include lumbar intervertebral disc degeneration at the L3/4, L4/5 and L5/S1.[195]
  1. [108]
    The Regulator further submitted:
  • the clinical note for Mr Statham's consultation with Dr Hii on 14 March 2016, recorded that a CT scan of Mr Statham's lumbar spine disclosed 'Right L5 nn root compression fr L4-5, L5s1 disc protrusion' and that the treatment prescribed would be that Mr Statham would start taking 75 mg of Lyrica, slowly increasing to 150 mg if there was no relief;[196]
  • by 27 June 2016, the 225 mg of Lyrica that Mr Statham had been taking was reduced to 150 mg;[197]
  • Mr Statham's back pain seemed to be controlled following that time;[198]and
  • Mr Statham continued to take Lyrica until 2 August 2017, when he complained of daytime sleepiness whilst taking that medication.[199]
  1. [109]
    The Regulator further submitted that Mr Statham noticed a recurrence of his back pain on 5 October 2017 and made a notation of that pain increasing on 6 October 2017.[200]
  1. [110]
    The Regulator then submitted that the entries made in Mr Statham's patient health summary from January 2018 to September 2019, do not record anything significant about Mr Statham suffering from back pain until the consultation with Dr O'Brien on 2 September 2019 which was for the purposes of obtaining a medical certificate for Mr Statham to apply for a permanent impairment assessment.[201]
  1. [111]
    In written submissions, the Regulator submitted that:
  • Mr Statham attended Dr Hii on 5 February 2018, complaining of two to three weeks of pain to his right groin and pain in the scrotum radiating up to the right groin, such that the reason for the visit is recorded as right inguinal hernia and prescription renewal;[202]
  • Dr Hii, in her evidence, accepted that Mr Statham had a significant degenerative condition which would have episodic exacerbations of pain;[203]
  • when Dr Hii's evidence is examined, it is not surprising that after Mr Statham stopped taking Lyrica, his episodes of back pain recurred;[204]and
  • Dr Hii accepted that the symptoms of pain described Mr Statham could be explained by his underlying degenerative condition.[205]
  1. [112]
    By way of summary, the Regulator submitted that:
  • the cause of Mr Statham's injury is his underlying lower back degenerative condition;[206]and
  • it was significant that (in August 2017) Mr Statham stopped taking Lyrica due to daytime sleepiness and then, after a period of time, from October 2017, became symptomatic and that Dr Hii conceded that the cessation of Lyrica could be a reason for the onset of his symptoms noting that on 31 May 2017, Dr Hii completed a management plan for Mr Statham's degenerative back condition.[207]

Mr Statham's submissions

  1. [113]
    Mr Statham submitted that:
  • the Regulator did not put to Dr O'Brien or Dr Hii that his is back would become symptomatic in any event without some triggering factor other than the underlying condition; and there was no evidence to connect his back pain to his work on another car such that if there was a credible alternative for the aggravation of his back pain, it should have been specifically put to him in cross‑examination;[208]and
  • Dr O'Brien's evidence was that work was a significant contributing factor to his symptoms.[209]
  1. [114]
    Mr Statham also submitted that the Commission does not need to make a finding of what exactly occurred on 17 November 2017 and 8 February 2018 and need only accept that work activities on those dates were causative of the symptoms of which he complained and that on the balance of probabilities, his employment was a significant contributing factor to the aggravations suffered on 17 November 2017 and 8 February 2018.[210]
  1. [115]
    Mr Statham also referred[211]to the decision of President Hall in Goodman Fielder v WorkCover[212]in which his Honour stated:

The medical evidence is such that one must accept, as has been accepted in other cases, that the degenerative spinal disease had reached the point at which it might be exacerbated and rendered symptomatic by stretching to get something out of a pantry, bending over to tie shoelaces or turning over in bed. What happened to the worker in this case might well have happened to him at his home, on a council bus or at a religious service. However, once the Industrial Magistrate accepted that the incident of 3 April 2001 did in fact occur and accepted that there was proximity of time between the incident and the onset of a pain it was, in the absence of any evidence about a competing causal incident, inevitable that the Industrial Magistrate would conclude on the balance of probability that the worker's employment had been "a significant contributing factor to the aggravation." On the state of the evidence any other conclusion would be speculation.[213]

  1. [116]
    It was submitted on behalf of Mr Statham that President Hall's statement in Goodman Fielder v WorkCover is apt in the present case for the reason that it is mere speculation that Mr Statham injured himself at home working on his own car because there is no evidence of that and was not put to the doctors by the Regulator.[214]
  1. [117]
    Dr Cross, Counsel for Mr Statham, was asked by me about the Regulator's submission that when Mr Statham saw Dr O'Brien on 2 September 2019, Mr Statham stated to Dr O'Brien that he was still having pain on that day but that in the intervening period between early 2018 and 2019 when he consulted a general practitioner, he made no complaint about back pain.[215]In response, it was submitted that that evidence was entirely consistent with Mr Statham's case for three reasons. First, Mr Budgen had terminated Mr Statham's employment as soon as he put in his medical certificate, secondly, Mr Statham was on medication and thirdly, Mr Statham was attending physiotherapy, so that there were no reasons for Mr Statham to go to a doctor.[216]
  1. [118]
    In reply, Mr Gray, on behalf of the Regulator submitted that:
  • when the evidence is reviewed, it put to Dr Hii repeatedly that it was Mr Statham's underlying degenerative condition that could explain the symptoms from which he was suffering;[217]and
  • by way of reference to Exhibit 13, being Dr O'Brien's letter to WorkCover dated 9 November 2019, Dr O'Brien opined that it was difficult to say whether Mr Statham's current symptoms were as a direct result of the event of 17 November 2017 in that Dr O'Brien stated he was uncertain noting that Mr Statham had reported resolution of the back pain to Dr Hii in the February 2018 consultation.[218]

Mr Statham's employment was not a significant contributing factor to any aggravation of his degenerative back condition

  1. [119]
    I am not persuaded, on the balance of probabilities, that Mr Statham's employment was a significant contributing factor to any aggravation of his degenerative back condition.
  1. [120]
    True it was that Dr Hii's oral evidence-in-chief was that:
  • as at 26 February 2018, in respect of Mr Statham's groin pain, she thought he was still suffering from a hernia, but that was a consequence of a subsequent CT scan, she discounted the diagnosis of hernia which then left Mr Statham with a diagnosis of back pain;[219]and
  • the two activities Mr Statham described, namely, lifting a filing cabinet on 17 November 2017 and reaching up to drill a screw for welding screens in early February 2018, could have certainly aggravated Mr Statham's lower back pain and that at that time (26 February 2018) she thought Mr Statham sustained a groin injury and that he could have injured his back at that time as well.[220]
  1. [121]
    However, in cross-examination, Dr Hii agreed that:
  • Mr Statham had a long history of lower back pain going back to 2001, including that Mr Statham complained of sciatica and lumbar disc degeneration from when DrHii first started seeing him in 2008;[221]
  • from about June 2008, Mr Statham reported to Dr Hii, and another general practitioner he consulted at the Sunnybank Hills Medical Centre, that he was reporting low back pain due to heavy lifting, the manoeuvring of a heavy diesel engine into a car and mowing, walking or bending for any length of time greater than 30 minutes, being pain that Dr Hii agreed was because of his underlying lumbar degenerative condition;[222]
  • from when Mr Statham continued to consult Dr Hii from January 2013, Mr Statham continued to complain of low back pain after performing manual work which was managed by Dr Hii by prescribing Mobic, Endone, Oxycodone and Pregabalin (Lyrica) and for which a GP management plan was devised which was directed towards the continuing care of his chronic medical condition which included his low back pain;[223]
  • by October 2017, Mr Statham had not been taking Lyrica for about two and a half months;[224]
  • because of the nature of Mr Statham's lower back, stopping the pain relieving medication would mean it was more likely he was going to notice the back pain symptoms;[225]and
  • on 26 February 2018, Mr Statham told her that the low back pain he described from the lifting incident that occurred on 17 November 2017, had resolved in three to four days.[226]
  1. [122]
    The Regulator did put to Dr Hii (who had been seeing Mr Statham about his back pain since 2008) that it was Mr Statham's underlying degenerative condition, in the absence of him taking Lyrica, that could explain his lower back pain symptoms. The transcript relevantly records the following:

And if the Commission finds that Mr Statham didn’t lift the heavy weight on the 17th of November 2017, Mr Statham’s deteriorating back condition can be explained by the fact that he had stopped taking the Lyrica, he was still doing physical activities in his employment and that it is just the – what you would expect Mr Statham to suffer because of the nature of his degenerative condition, isn’t it?---The Lyrica is specifically prescribed for neuropathic pain, so that’s caused by nerve root irritation. And that can come and go. It’s not permanent, depending on how much swelling you have in your back. So once the swelling settles down we can withdraw the Lyrica without causing any increasing pain.

But, Doctor, if he’s continuing to do manual labouring activities, the bending, the twisting, the lifting and that sort of thing, without the medication you would expect him to suffer from symptoms, wouldn’t you?---That’s correct.[227]

  1. [123]
    In respect of this evidence, the Regulator submitted that:
  • the cause of Mr Statham's injury was his underlying lower back degenerative condition;[228]and
  • it was significant that (in August 2017) Mr Statham stopped taking Lyrica due to daytime sleepiness and then, after a period of time from October 2017, became symptomatic and that Dr Hii conceded that the cessation of Lyrica could be a reason for the onset of his symptoms noting that on 31 May 2017, Dr Hii completed a management plan for his degenerative back condition.[229]
  1. [124]
    I accept this submission.
  1. [125]
    There can be no dispute that Mr Statham has had a long history of lower back pain including from 2008 when he first consulted Dr Hii. By March 2016, Dr Hii had prescribed Lyrica to manage Mr Statham's lower back pain. A management plan was also devised directed towards continuing care of Mr Statham's chronic medical conditions which included his low back pain. Mr Statham's low back pain seem to be controlled by taking that medication up until about August 2017 when he stopped taking the medication and he (Mr Statham) made a notation of increasing pain from about October 2017. For these reasons, I accept the Regulator's submissions that because of the degenerative nature of Mr Statham's lower back, by stopping the pain relieving medication, it was more likely than not that he was going to notice his back symptoms, being symptoms he had had for a number of years, but which had been managed by the pain medication.
  1. [126]
    There is no evidence that Mr Statham was prescribed Lyrica again after August 2017 and up to February 2018 for his back pain.
  1. [127]
    Mr Statham also referred to the evidence given by Mr Budgen, in cross-examination, that he (Mr Budgen) accepted that Mr Statham's job was aggravating his back or affecting his health.[230]However, I am not prepared to rely on that evidence as determinative of the question of whether or not Mr Statham's employment was a significant contributing factor to the onset of his symptoms. This is because:
  • of the expert evidence I have referred to immediately above; and
  • Mr Budgen's observations as a lay person (which concluded by him stating that the physical activities Mr Statham was performing at work '… weren't helping'[231]), when compared to the evidence of Dr Hii about the effects of Mr Statham's cessation of taking pain medication from August 2017, is not evidence persuading me that Mr Statham's employment was a significant contributing factor to the onset of his symptoms in November 2017 and February 2018.
  1. [128]
    For these reasons, I do not find, on the balance of probabilities, that Mr Statham's employment was a significant contributing factor to the onset of his symptoms. In my view, on the basis of Dr Hii's evidence in cross-examination, because of the nature of Mr Statham's long standing lower back problems, the stopping of the pain relieving medication would mean it was more likely he was going to notice his back pain symptoms.

Conclusion

  1. [129]
    In this appeal, the onus was on Mr Statham to prove, on the balance of probabilities, that he suffered an injury within the meaning of s 32 of the Act.
  1. [130]
    For the reasons I have given, Mr Statham has not discharged that onus.
  1. [131]
    The review decision dated 19 May 2020 is confirmed.
  1. [132]
    I will hear the parties as to the costs of the hearing.

Orders

  1. [133]
    I make the following orders:
  1. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the decision of the Respondent, dated 19 May 2020, is confirmed.
  1. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:
  1. (a)
    the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Wednesday, 1 February 2023; and
  1. (b)
    unless otherwise ordered, the decision on costs be determined on the papers.

Footnotes

[1] Exhibit 10, page 6, paras. 13 and 15.

[2] Exhibit 10.

[3] Exhibit 9.

[4] Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031; (2015) 252 IR 461, [24]-[27] (Martin J, President).

[5] Ibid [37]-[39].

[6] State of Queensland (Queensland Health) v Q-Comp and Beverley Coyne [2003] ICQ 9; (2003) 172 QGIG 1447, 1448 (President Hall).

[7] The Workers' Compensation Regulator's written submissions dated 18 August 2021 ('the Regulator's submissions'), para. 5.

[8] T 1-2, ll 31-47.

[9] T 1-132, l 41 to T 1-133, l 4.

[10] T 1-133, ll 19-21.

[11] T 1-103, ll 42-46.

[12] T 1-103, ll 22-24.

[13] T 1-4, l 31 to T 1-5, l 7.

[14] T 1-37, l 28 to T 1-39, l 22.

[15] T 1-4, ll 36-37.

[16] T 1-102, l 34 to T 1-103, l 27.

[17] T 1-9, ll 14-17.

[18] T 1-104, l 42 to T 1-105, l 15.

[19] T 1-105, ll 8-15.

[20] T 1-104, ll 39-40.

[21] T 1-45, l 14.

[22] T 1-9, ll 23-33 and T 1-14, ll 7-10.

[23] T 1-109, ll 8-13.

[24] T 1-24, ll 35-44.

[25] T 1-15, ll 18-34.

[26] T 1-15, ll 36-37.

[27] T 1-19, ll 23-38.

[28] T 1-20, ll 8-18.

[29] T 1-20, ll 19-20.

[30] T 1-20, ll 39-43.

[31] T 1-20, l 30.

[32] T 1-21, l 10.

[33] T 1-21, ll 12-17.

[34] T 1-21, ll 45-46.

[35] Exhibit 3.

[36] T 1-22, ll 4-18.

[37] T 1-22, ll 30-34.

[38] T 1-23, ll 5-7.

[39] T 1-23, ll 9-13.

[40] T 1-23, l 17 to T 1-25, l 12.

[41] T 1-45, ll 4-14.

[42] T 1-45, ll 16-19.

[43] T 1-45, l 24 to T 1-46, l 6 and Exhibit 8.

[44] T 1-46, ll 43-47.

[45] T 1-47, ll 5-12.

[46] T 1-47, ll 14-28.

[47] T 1-47, ll 30-47.

[48] Exhibit 9.

[49] T 1-50, ll 12-20.

[50] T 1-50, ll 25-28.

[51] T 1-51, ll 9-15.

[52] T 1-51, ll 36-37.

[53] T 1-52, ll 11-14.

[54] T 1-51, l 43 to T 1-52, l 9.

[55] T 1-51, ll 27-34.

[56] T 1-52, ll 16-18.

[57] T 1-53, ll 6-7.

[58] T 1-65, ll 45-47.

[59] T 1-69, ll 1-6.

[60] T 1-69, l 22 to T 1-70, l 18.

[61] T 1-106, ll 30-41.

[62] T 1-107, ll 1-24.

[63] T 1-107, ll 21-22.

[64] T 1-107, ll 26-27.

[65] T 1-108, ll 1-19.

[66] T 1-109, ll 4-6.

[67] T 1-114, l 1 to T 1-115, l 5.

[68] T 1-121, ll 1-4.

[69] T 1-115, ll 12-19.

[70] T 1-115, ll 21-27.

[71] T 1-115, l 37 to T 1-116, l 1.

[72] T 1-119, ll 39-44.

[73] T 1-120, ll 1-11.

[74] T 1-120, ll 36-40.

[75] T 1-125, ll 3-21.

[76] T 1-125, l 40 to T 1-126, l 16.

[77] T 1-126, ll 36-37.

[78] T 1-127, ll 19-21.

[79] T 1-127, ll 25-32.

[80] T 1-127, l 42 to T 1-126, l 4.

[81] T 1-128, ll 6-46.

[82] T 1-129, ll 9-17.

[83] T 1-129, ll 19-30.

[84] T 1-129, ll 32-35 and T 1-130, ll 7-8.

[85] T 1-130, l 37 to T 1-131, l 7.

[86] Exhibit 3, the entry for 1 December 2017.

[87] T 1-93, ll 13-15.

[88] Exhibit 3, the entry for 2 September 2019.

[89] T 1-96, ll 17-18.

[90] T 1-97, ll 13-20.

[91] T 1-97, ll 22-25.

[92] T 1-98, ll 6-8.

[93] T 1-74, l 11 to T 1-77, l 35.

[94] Exhibit 3, the entry for 26 February 2018.

[95] Exhibit 3, the entry for 5 February 2018.

[96] The Regulator's submissions, paras. 42-45.

[97] T 2-9, ll 29-37.

[98] T 2-9, ll 39-47.

[99] T 2-10, ll 7-17.

[100] [2018] QCA 298; [2019] 3 Qd R 93.

[101] Ibid at [31]-[33].

[102] T 2-10, l 29 to T 2-11, l 25.

[103] T 2-10, ll 27-31.

[104] T 2-18, ll 15-17.

[105] T 2-18, ll 21-22.

[106] T 2-18, ll 22-31.

[107] T 2-18, ll 35-39.

[108] T 2-18, ll 39-42.

[109] T 2-18, l 46 to T 2-19, l 19. I cannot find, in the transcript where Mr Statham expressly stated the filing cabinet was cream in colour. At T 1-15, ll 29-30, his evidence was that the filing cabinet was similar to the ones depicted in Exhibit 1, photograph 8, but that it was different in colour.

[110] T 2-20, ll 12-16.

[111] T 2-20, ll 16-23.

[112] T 2-20, ll 25-27.

[113] T 2-20, ll 37-42.

[114] Mr Statham's written submissions filed on 18 August 2021 ('Mr Statham's submissions'), para. 27.

[115] Mr Statham's written submissions, para. 35.

[116] Mr Statham's written submissions, para. 36.

[117] Mr Statham's written submissions, para. 28.

[118] This seems to be a typographical error in the written submissions and should refer to 17 November 2017.

[119] Mr Statham's written submissions, paras. 174-188.

[120] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 ('Fox'), [30]-[31] (Gleason CJ, Gummow and Kirby JJ).

[121] Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 ('Rush'), [309] (Wigney J).

[122] Fox (n 120), [30] citing the decision of Atkin LJ in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 Ll L Rep 140, 15, Camden v McKenzie [2007] QCA 136; (2008) 1 Qd R 39, [34] (Keane JA) and Rush (n 121), [309] (Wigney J).

[123] T 1-106, ll 30-33.

[124] T 1-126, ll 32-37.

[125] T 1-130, ll 30-35.

[126] T 1-130, ll 19-20.

[127] T 1-128, ll 16-25.

[128] T 1-20, ll 39-43.

[129] T 1-21, ll 9-10.

[130] T 1-22, ll 4-19.

[131] T 1-122, ll 10-27.

[132] T 1-28, ll 8-19, T 1-29, ll 5-44 and T 1-30, ll 21-25.

[133] T 1-30, ll 15-17.

[134] T 1-28, ll 21-37.

[135] T 1-28, ll 39-41.

[136] T 1-28, ll 43-45.

[137] T 1-33, ll 29-32.

[138] T 1-33, ll 34-45.

[139] T 1-27, ll 16-20.

[140] Exhibit 4.

[141] T 1-33, l 41 to T 1-34, l 3.

[142] T 1-34, ll 11-36.

[143] T 1-34, l 42 to T 1-35, l 9.

[144] T 1-53, l 38 to T 1-54, l 6.

[145] T 1-54, ll 11-22.

[146] T 1-55, ll 3-13.

[147] T 1-55, ll 41-42.

[148] T 1-56, l 28 to T 1-58, l 41.

[149] T 1-58, l 43 to T 1-59, l 8.

[150] T 1-59, ll 20-25.

[151] T 1-63, ll 1-13.

[152] T 1-64, ll 15-32.

[153] T 1-64, l 38 to T 1-64, l 15.

[154] T 1-109, ll 15-21.

[155] T 1-110, ll 1-33.

[156] T 1-110, l 39 to T 1-111, l 4.

[157] T 1-111, ll 30-44.

[158] T 1-112, ll 1-5.

[159] T 1-112, l 7.

[160] T 1-111, ll 37-40.

[161] T 1-112, ll 12-15.

[162] T 1-112, ll 17-19.

[163] T 1-112, ll 19-22.

[164] T 1-112, ll 24-29.

[165] T 1-112, ll 31-32.

[166] T 1-112, ll 39-45.

[167] T 1-116, ll 33-37.

[168] T 1-116, ll 39-43 and T 1-117, ll 5-6.

[169] T 1-117, ll 8-10 and T 1-117, ll 18-19.

[170] T 1-117, ll 14-16.

[171] T 1-118, ll 1-3.

[172] T 1-119, ll 21-37.

[173] T 1-117, ll 21-25.

[174] T 1-121, ll 33-36 and T 1-122, ll 5-7.

[175] T 1-122, ll 23-30.

[176] T 1-122, ll 34-39.

[177] T 1-123, ll 27-31.

[178] T 2-12, ll 31-35.

[179] T 2-12, ll 34-35.

[180] T 2-12, ll 35-39.

[181] T 2-12, ll 41-43.

[182] T 2-20, ll 44-45.

[183] T 2-20, ll 45-47.

[184] T 2-20, l 44 to T 2-21, l 6.

[185] T 2-21, ll 25-31.

[186] T 2-22, ll 20-24.

[187] Mr Statham's written submissions, para. 182.

[188] Mr Statham's written submissions, para. 184.

[189] Exhibit 10, page 5, para. 7, last sentence.

[190] T 1-87, l 43 to T 1-88, l 13.

[191] T 1-27, ll 16-20, T 1-54, ll 1-6 and Exhibit 4.

[192] T 1-28, ll 21-22.

[193] The Regulator's submissions, para. 18.

[194] The Regulator's submissions, paras. 19-35.

[195] The Regulator's submissions, para. 21.

[196] The Regulator's submissions, para. 35(h).

[197] The Regulator's submissions, para. 35(n), which incorrectly referred to 7 June 2016.

[198] The Regulator's submissions, para. 35(o)-(s).

[199] The Regulator's submissions, para. 40.

[200] The Regulator's submissions, para. 41. This was a reference to Mr Statham's evidence in further cross‑examination where he stated that he made an entry in his diary on 6 October 2017, that on 5 October 2017, his pain had increased, both legs were very painful and that he was having trouble trying to work: T 1-71, l 25 to T 1‑72, l 20.

[201] T 2-13, l 30 to T 2-14, l 12.

[202] The Regulator's submissions, para. 46.

[203] The Regulator's submissions, para. 85.

[204] The Regulator's submissions, para. 86.

[205] The Regulator's submissions, para. 87.

[206] T 2-12, ll 4-14.

[207] T 2-12, ll 16-25.

[208] T 2-21, ll 35 to T 2-22, l 9.

[209] T 2-22, ll 20-21.

[210] Mr Statham's written submissions, paras. 189-191.

[211] Mr Statham's written submissions, para. 193.

[212] [2004] ICQ 8; (2004) 175 QGIG 871 ('Goodman').

[213] Goodman (n 211) 872.

[214] T 2-23, ll 30-35.

[215] T 2-24, ll 14-20.

[216] T 2-24, ll 14-41.

[217] T 2-26, ll 36-39.

[218] T 2-26, ll 40-45.

[219] T 1-77, l 31 to T 1-78, l 14.

[220] T 1-78, ll 27-47.

[221] T 1-79, l 39 to T 1-80, l 12.

[222] T 1-80, l 14 to T 1-82, l 9.

[223] T 1-82, l 31 to T 1-86, l 5.

[224] T 1-87, ll 1-2.

[225] T 1-86, ll 23-25.

[226] T 1-87, l 41.

[227] T 1-90, ll 18-30.

[228] T 2-12, ll 4-14.

[229] T 2-12, ll 14-25.

[230] T 1-121, l 13 to T 1-122, l 6.

[231] T 1-122, ll 5-6.

Close

Editorial Notes

  • Published Case Name:

    Statham v Workers' Compensation Regulator

  • Shortened Case Name:

    Statham v Workers' Compensation Regulator

  • MNC:

    [2023] QIRC 3

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    10 Jan 2023

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
Camden v McKenzie[2008] 1 Qd R 39; [2007] QCA 136
4 citations
Jump To
Cite 1 - [2007] QCA 136
Cite 2 - [2007] QCA 136
Cite 3 - [2008] 1 Qd R 39
Cite 4 - [2008] 1 Qd R 39
Church v Simon Blackwood (Workers' Compensation Regulator) (2015) 252 IR 461
3 citations
Jump To
Cite 1 - (2015) 252 IR 461
Cite 2 - (2015) 252 IR 461
Cite 3 - (2015) 252 IR 461
Church v Workers' Compensation Regulator [2015] ICQ 31
2 citations
Jump To
Cite 1 - [2015] ICQ 31
Cite 2 - [2015] ICQ 31
Fielder v WorkCover Queensland [2004] ICQ 8
2 citations
Jump To
Cite 1 - [2004] ICQ 8
Cite 2 - [2004] ICQ 8
Fielder v WorkCover Queensland (2004) 175 QGIG 871
3 citations
Jump To
Cite 1 - (2004) 175 QGIG 871
Cite 2 - (2004) 175 QGIG 871
Cite 3 - (2004) 175 QGIG 871
Fox v Percy (2003) 214 CLR 118
3 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Cite 3 - (2003) 214 CLR 118
Fox v Percy (2003) HCA 22
2 citations
Jump To
Cite 1 - (2003) HCA 22
Cite 2 - (2003) HCA 22
Hansen v Patrick[2019] 3 Qd R 93; [2018] QCA 298
5 citations
Jump To
Cite 1 - [2018] QCA 298
Cite 2 - [2018] QCA 298
Cite 3 - [2019] 3 Qd R 93
Cite 4 - [2019] 3 Qd R 93
Cite 5 - [2019] 3 Qd R 93
Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496
3 citations
Jump To
Cite 1 - [2019] FCA 496
Cite 2 - [2019] FCA 496
Cite 3 - [2019] FCA 496
Societe d'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co. (The Palitana) (1924) 20 Ll L Rep 140
2 citations
Jump To
Cite 1 - (1924) 20 Ll L Rep 140
Cite 2 - (1924) 20 Ll L Rep 140
State of Queensland (Queensland Health) v Q-Comp & Coyne [2003] ICQ 9
2 citations
Jump To
Cite 1 - [2003] ICQ 9
Cite 2 - [2003] ICQ 9
State of Queensland v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447
2 citations
Jump To
Cite 1 - (2003) 172 QGIG 1447
Cite 2 - (2003) 172 QGIG 1447

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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