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Gay v Workers' Compensation Regulator[2024] QIRC 141

Gay v Workers' Compensation Regulator[2024] QIRC 141

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Gay v Workers' Compensation Regulator [2024] QIRC 141

PARTIES:

Gay, Aaron

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2017/111

PROCEEDING:

Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:

31 May 2024

HEARING DATES:

14 December 2020, 15 December 2020

Appellant's written submissions filed on 2 February 2021 and Respondent's written submissions filed on 17 February 2021

MEMBER:

Hartigan DP

HEARD AT:

Brisbane

ORDER:

  1. The appeal is dismissed.
  1. Any application for the costs by the Regulator is to be served and filed in the Industrial Registry within 28 days of this decision.

CATCHWORDS:

WORKERS' COMPENSATION – APPLICATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – where decision of Commission appealed and set aside – where matter was remitted back to the Commission to decide according to law –  where application for assessment of degree of permanent impairment under s 132A of the Workers' Compensation and Rehabilitation Act 2003 (Qld) rejected by Regulator – whether Appellant is prohibited from applying for assessment of permanent impairment pursuant to s 132A of the WCR Act – where the Appellant has previously made a claim for compensation under s 132 of the WCR Act – where the injury referred to in the s 132A application is found to be for the same injury as the s 132 application for compensation – where Appellant is not entitled to make a claim for assessment of permanent impairment – appeal dismissed.

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003 (Qld), ss 31, 32, 108, 131, 179, 185, 187, 189, 237

Worker's Compensation and Rehabilitation and other Legislation Amendment Act 2013 (Qld)

Explanatory Notes, Workers' Compensation and Rehabilitation and Other Legislative Amendment Bill 2013 (Qld)

Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2015 (Qld)

CASES:

Gay v Workers' Compensation Regulator [2018] QIRC 125

Gay v Workers' Compensation Regulator [2019] ICQ 011

Lake City Freighters Pty Ltd v Goram & Gotch Limited [1985] HCA 48; 157 CLR 309

Langridge v Workers Compensation Regulator [2021] QIRC 251

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

R v A2; R v Magennis; R v Vaziri (2019) 269 CLR 507

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

Reasons for Decision

Introduction

  1. [1]
    Mr Aaron Gay ('Mr Gay') successfully appealed a decision of the Commission[1], which determined, inter alia¸ that the appeal against a decision of the Workers' Compensation Regulator ('the Regulator') be set aside and the matter be remitted back to the Commission to decide according to law ('the appeal decision').[2]
  1. [2]
    The Commissioner who originally heard the matter did not hold office by the time it was re-listed for hearing and the matter was subsequently allocated to another member of the Commission.
  1. [3]
    The issue to be determined is whether Mr Gay is precluded from applying for assessment of degree of permanent impairment ('DPI') before applying for compensation pursuant to s 132A of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('WCR Act').

Relevant Background

  1. [4]
    Mr Gay lodged a Notice of Appeal with the Industrial Registry in respect of a decision made by the Regulator ('the Regulator's decision'). The Regulator's decision upheld the decision of WorkCover to reject Mr Gay's application for assessment of DPI in reliance on s 132A(1) of the WCR Act on the basis that Mr Gay had previously made an application for compensation for the injury.
  1. [5]
    Section 132A(1)  provides that the provision applies to a worker who has not made an application for compensation pursuant to s 132 of the WCR Act.
  1. [6]
    Mr Gay's s 132A application sought an assessment of DPI arising from what could be described as a soft tissue injury to his lumbar spine which he alleges was caused by repetitive and excessive physical strain between 28 July 2014 and 10 August 2014 (the 's 132A application').
  1. [7]
    Mr Gay had previously made an application for compensation pursuant to s 132 of the WCR Act (the 's 132 application').  Mr Gay's application for compensation recorded that he had suffered an injury described as "lower back, trauma to muscles/tendon not classified" on 9 August 2014[3] when lifting filing cabinets.
  1. [8]
    The Regulator contends that Mr Gay bears the onus of proof in demonstrating that he sustained an injury as described in the s 132A application which is separate and distinct from the personal injury which is the subject of the s 132 application.
  1. [9]
    To determine these matters, it is necessary to conduct an analysis of the s 132 application and the s 132A application. However, before such analysis, I will consider the relevant statutory scheme applicable at the relevant time. Notably, the consideration of the applicable statutory scheme is the scheme in force between 21 January 2014 and when those provisions were amended, relevantly, with effect from 31 January 2015.

Approach to the appeal

  1. [10]
    Mr Gay identified the issue to be determined by the Commission as being whether the application for compensation of the lumbar spine soft tissue injury resulting from lifting a filing cabinet on 14 August 2014[4]  was for the same injury as the injury alleged in Mr Gay's application for assessment of DPI resulting from the earlier repeated exposure to lifting pianos.[5]
  1. [11]
    It was submitted by Mr Gay that if the answer to the question is "yes" on the basis that each application is for the same injury, then the operative effect of s 132A(1) of the WCR Act is triggered and the appeal should be dismissed.
  1. [12]
    However, if the answer to the question is "no", then the Commission is required to determine whether there is a further question to be resolved in the appeal, namely, whether s 132A impliedly imposes an obligation upon the insurer (and the Regulator) to determine whether Mr Gay in fact suffered an injury before referring the application for an assessment of DPI pursuant to s 179 of the WCR Act.
  1. [13]
    Mr Gay submits that the issue with respect to whether it is necessary to consider if he suffered an injury within the meaning of s 32 of the WCR Act arises from the approach taken by the Regulator, in the reasons for the decision, to consider whether Mr Gay suffered an injury.
  1. [14]
    The Regulator summarised its position in its submissions[6] as follows:

… Contrary to the submissions of the appellant:

  1. the reasons WorkCover initially rejected the application are not relevant to this appeal – the appeal is against the decision of the Regulator;
  2. if the reasoning of the decision of WorkCover was wrong, the appellant had a remedy in seeking a review by the Regulator and proceeding further to appeal on that issue if necessary, within the statutory time frames. That issue is not subject of this appeal;
  3. the appeal is in relation to the Regulator's decision, not the Regulator's reasons;
  4. the decision of the Regulator is clearly set out on the last page decision. Despite an erroneous reference to an issue for determination being whether the appellant suffered an injury for the purposes of section 32 of the Act, the decision properly does not contain any such determination or reasons for such a determination.
  5. The Regulator has not "joined issue" on whether the appellant suffered an injury for the purposes of the Act but says the appellant, to satisfy its onus of proof must prove that the appellant suffered a personal injury as claimed, which is separate and distinct from the personal injury subject of the earlier application for compensation.

…

  1. [15]
    However, the Regulator submitted that if the appeal was allowed, the matter should be remitted to the Review Unit of the Regulator for the determination of whether Mr Gay has sustained an 'injury' pursuant to the WCR Act such that s 132A(2) may come into operation.
  1. [16]
    To this end, the parties agreed to call evidence from witnesses[7] which not only addressed matters relevant to whether the injury the subject of the s 132A application is the same as the claimed injury in the s 132 application, but also addressed whether Mr Gay suffered an injury for the purpose of s 32 of the WCR Act.[8]
  1. [17]
    In this regard, some of the issues raised in this appeal are akin to the matters raised in the subsequent decision of Langridge v Workers Compensation Regulator.[9]
  1. [18]
    Relevantly, the s 132A application made by Mr Langridge also required consideration of s 132A of the WCR Act in force between 21 January 2014 and 31 January 2015.
  1. [19]
    In that matter, the appellant argued that the proper construction of s 132A required WorkCover, on receipt of an application in the approved form and where the applicant has not claimed compensation for the same injury, to refer the applicant for an assessment.
  1. [20]
    Conversely, the Regulator argued that, upon the proper consideration of the whole of the statutory scheme, WorkCover must be able to determine the qualifying issues of 'worker' and 'injury' before the process of assessment of DPI is engaged.
  1. [21]
    His honour, O'Connor VP ultimately held at [60] and [61]:

[60] Having regard to the legislative history and the clear words of s 132A, WorkCover was obliged: upon receipt of an application in the approved form, accompanied by a certificate and any other evidence or particulars prescribed by a regulation; where the applicant has not made an application under s 132; to refer the applicant for an assessment under s 179.

[61] Section 132A in its pre-amended form did not, in my view, give the Respondent the capacity to reject the Appellant's application for assessment.

  1. [22]
    The decision in Langridge has been appealed to the Industrial Court of Queensland. The decision of the Court is yet to be published. When determined, the decision will be authoritative with respect to the construction of s 132A and the approach to be taken by the insurer on receipt of a s 132A application. However, in the absence of that decision, I will consider the statutory construction of s 132A. It is necessary to do so at the outset of this appeal, in order to determine whether it is necessary to consider the evidence called and relied upon going to the issue of whether Mr Gay suffered an injury within the meaning of s 32 of the WCR Act.

Relevant provisions of the WCR Act

  1. [23]
    Section 132 of the WCR Act provides for the making of an application for compensation as follows:
  1. 132 Applying for compensation
  1. An application for compensation must be made in the approved form by the claimant.
  1. The application must be lodged with the insurer.
  1. The application must be accompanied by—
  1. a certificate in the approved form given by—
    1. a doctor who attended the claimant; or
    2. if the application relates to a minor injury—a nurse practitioner who attended the claimant and who is acting in accordance with the workers’ compensation certificate protocol; and
  1. any other evidence or particulars prescribed under a regulation.
  1. A registered dentist may issue the certificate mentioned in subsection (3)(a) for an oral injury.
  1. If the claimant can not complete an application because of a physical or mental incapacity, someone else may complete it on the claimant’s behalf.
  1. [24]
    At the relevant time of injury, s 132A of the WCR Act provided for a means to apply for assessment of DPI before applying for compensation as follows:

132A  Applying for assessment of DPI before applying for compensation

  1. This section applies to a worker who has not made an application under section 132.
  2. The worker may apply to the insurer to have the worker’s injury assessed under section 179 to decide if the worker’s injury has resulted in a DPI.
  1. An application under subsection (1) must be—
  1. lodged with the insurer; and
  2. in the approved form; and
  3. accompanied by—
  1. a certificate in the approved form given by a doctor who attended the worker; and
  2. any other evidence or particulars prescribed under a regulation.
  1. A registered dentist may issue the certificate mentioned in subsection (3)(c)(i) for an oral injury.
  1. If the worker can not complete an application because of a physical or mental incapacity, someone else may complete it on the worker’s behalf.
  1. [25]
    Section 179, which is referred to in s 132A, relevantly provides an assessment of permanent impairment as follows:

179  Assessment of permanent impairment

  1. An insurer may decide, or a worker who has made an application under section 132 may ask the insurer, to have the worker’s injury assessed to decide if the worker’s injury has resulted in a degree of permanent impairment.
  2. The insurer must have the degree of permanent impairment assessed—
  1. for industrial deafness—by an audiologist; or
  2. for a psychiatric or psychological injury—by a medical assessment tribunal; or
  3. or another injury—by a doctor.
  1. The degree of permanent impairment must be assessed in accordance with the GEPI to decide the DPI for the injury, and a report complying with the GEPI must be given to the insurer.
  2. If the worker sustains permanent impairment from multiple injuries sustained in 1 event—
  1. the degree of permanent impairment for the injuries, other than a psychiatric or psychological injury, must be assessed together to decide the DPI for the injuries; and
  2. the degree of permanent impairment for the psychiatric or psychological injury must be assessed separately to decide the DPI for the injury.
  1. [26]
    Section 180 identifies how the calculation of lump sum compensation may occur:
  1. 180 Calculation of lump sum compensation
  1. If, as a result of an assessment under section 179, a worker is entitled to lump sum compensation, the amount of the lump sum compensation must be calculated under a regulation having regard to the DPI.
  2. Without limiting subsection (1), lump sum compensation for injury must not include an amount for a degree of impairment attributable to——
  1. a condition existing before the injury; or
  2. a condition for which the worker is not entitled to compensation.
  1. The amount of lump sum compensation is to be calculated as at the day the insurer makes an offer of lump sum compensation to the worker under section 187.
  1. [27]
    Section 108 of the WCR Act provides the compensation entitlements is as follows:

108  Compensation entitlement

  1. Compensation is payable under this Act for an injury sustained by a worker.
  2. However, if a worker’s injury is an aggravation mentioned in section 32 (3) (b) or (ba), the worker is entitled to compensation for the injury only to the extent of the effects of the aggravation.

Note –

See also division 5 in relation to the effect of compensation on workers' leave entitlements.

  1. [28]
    Section 32 of the WCR Act relevantly provides for the definition of 'injury' as follows:

32 Meaning of injury

  1. An injury is personal injury arising out of, or in the course of, employment if —
  1. for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or
  2. for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury.
  1. However, employment need not be a contributing factor to the injury if section 34 (2) or 35 (2) applies.
  2. Injury includes the following —
  1. a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
  2. 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. a personal injury other than a psychiatric or psychological disorder;
  2. a disease;
  3. a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation;
  1. For subsection (3) (b) and (ba), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
  1. [29]
    Section 31 of the WCR Act provides for the definition of 'event' as follows:

31 Meaning of event

  1. An event is anything that results in injury, including a latent onset injury, to a worker.
  2. An event includes continuous or repeated exposure to substantially the same conditions that results in an injury to a worker.
  3. A worker may sustain 1 or multiple injuries as a result of an event whether the injury happens or injuries happen immediately or over a period.
  4. If multiple injuries result from an event, they are taken to have happened in 1 event.
  1. [30]
    Section 237 of the WCR Act provides for the general limitations on persons entitled to seek damages and is set out as follows:

 237  General limitation on persons entitled to seek damages

  1. The following are the only persons entitled to seek damages for an injury sustained by a worker—
    1. the worker, if the worker—
      1. has received a notice of assessment from the insurer for the injury and the DPI for the assessed injury is more than 5%; or
      2. has a terminal condition;
    2. a dependant of the deceased worker, if the injury results in the worker’s death.
  2. The entitlement of a worker, or a dependant of a deceased worker, to seek damages is subject to the provisions of this chapter.
  3. If a worker—
    1. is required under section 239 to make an election to seek damages for an injury; and
    2. has accepted an offer of payment of lump sum compensation under chapter 3, part 10, division 3 for the injury;

the worker is not entitled to seek damages.

  1. However, subsection (3) does not prevent a worker from seeking damages under section 266.
  2. To remove any doubt, it is declared that subsection (1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker.

Legislative amendments effective from 31 January 2015

  1. [31]
    Mr Gay has made submissions with respect to the relevant provisions that were applicable at the relevant time and the amendments that were subsequently made to those provisions.
  1. [32]
    The provisions referred to, and extracted above, were those provisions that were in force from 15 October 2013.[10]
  1. [33]
    Section 132A was amended by the Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2015 (Qld) ('the Amendment Act'). The Amendment Act was assented to on 24 September 2015 however, some of the amended provisions, including s 132A, retrospectively commenced on 31 January 2015. 
  1. [34]
    Relevantly, s 132A was amended to include sub-sections (6)-(12) as follows:

(6) The insurer must, within 40 business days after an application under subsection (2) is made, decide to allow or reject the application.

(7) The insurer may reject the application only if satisfied the worker—

(a) was not a worker when the injury was sustained; or

(b) has not sustained an injury.

(8) The insurer must notify the worker of its decision on the application.

(9) If the insurer rejects the application, the insurer must also, when giving the worker notice of its decision, give the worker written reasons for the decision and the information prescribed by regulation.

(10) If the worker is aggrieved by the insurer’s decision on the application, the worker may have the decision reviewed under chapter 13.

(11) If the insurer does not decide the application within the time stated in subsection (6)—

(a) the insurer must, within 5 business days after the end of the time stated in subsection (6), notify the worker—

(i) of its reasons for not deciding the application; and

(ii) that the worker may have the insurer’s failure to decide the application reviewed under chapter 13; and

(b) the worker may have the insurer’s failure to decide the application reviewed under chapter 13.

(12) To remove any doubt, it is declared that a decision of the insurer to allow the application does not entitle the worker to compensation for the injury.

  1. [35]
    As is apparent from the new provisions introduced by the amendments, s 132A(7)(a)-(b) provides that the insurer may reject the application if satisfied that the worker was not a worker at the time they were injured, or they have not suffered an injury.
  1. [36]
    Relevantly, the Amendment Act inserted two transitional provisions, ss 708 and 709.
  1. [37]
    Section 708 is a definitional provision and provided the meaning for the following terms:
  1. 'pre-amended Act' means this Act in force before 31 January 2015; and
  1. 'transitional period' means the period starting on 31 January 2015 and ending on the date of assent of the amendment act.
  1. [38]
    Section 709 applies if a worker sustained an injury before 31 January 2015. Section 709(2) provides that the pre-amended Act continues to apply in relation to the injury as if the Amendment Act had not been enacted.
  1. [39]
    Given that the alleged injury was said to have occurred on 14 August 2014, the pre-amended Act applies to the consideration of this matter. Relevantly, ss 132A(7)(a) and (b) were not in force at the relevant time of injury.

The parties' submission as to the operation of the provisions

  1. [40]
    Mr Gay submits that the approved form for the s 132A application required the applicant to provide information about the event causing the injury. Mr Gay further submits that the repeated references to the 'event' in the approved form is drawn from s 31 of the WCR Act which defines an 'event' as "anything that results in an injury including repeated exposure to substantially the same condition, including over a period of time."
  1. [41]
    Mr Gay further submits that 'injury' is defined in s 31(1)(a) as "personal injury arising out of, or in the course of the employment… if the employment is a significant contributing factor." In this regard, he submits that an injury includes an aggravation of a personal injury but only to the extent of the aggravation. Mr Gay submits that the restricted definition of 'injury' in the context of an aggravation is reflective of the restricted entitlement to compensation provided for by s 108(2) of the WCR Act.
  1. [42]
    Mr Gay contends that it is within this context that s 132A establishes a procedure whereby a person who has not made an application for compensation under s 132 of the WCR Act, and therefore is not entitled to workers' compensation for the injury, could obtain an assessment of permanent impairment for a claimed injury. An assessment of permanent impairment under s 179 of the WCR Act enables a calculation of lump sum compensation under s 180(1) of the WCR Act. That offer is calculated by excluding any pre-existing condition or conditions for which the worker is not entitled to workers' compensation. Sections 185 and 189 of the WCR Act provide for the worker to be notified of the calculation of the lump sum and to be offered the lump sum. Section 189 of the WCR Act requires that the worker make an irrevocable election as to whether to accept a lump sum offer or seek damages for the injury. Simultaneously, the WCR Act was amended to preclude workers from seeking damages for workplace injuries unless they have received a notice of assessment greater than 5%.
  1. [43]
    Mr Gay contends that s 132A provides a straightforward procedure by which a worker could obtain an assessment of DPI for the purpose of deciding whether to commence a claim for damages having regard to the DPI threshold which was simultaneously introduced.
  1. [44]
    Mr Gay relies on the Explanatory Notes to the Workers' Compensation and Rehabilitation and Other Legislative Amendment Bill 2013[11] which introduced the provision as follows:

Clause 9 inserts new section 132A outlining the process for applying to an insurer for an assessment of the degree of permanent impairment in situations where an application for statutory compensation has not been made, for example if the applicant is seeking to lodge a notice of claim for damages.

  1. [45]
    Mr Gay also refers to the amendment made to s 132A[12] by the insertion of sub-sections (6)-(12). In this regard, s 132A(6) requires the insurer to decide whether to allow or reject the application. However, s 132A(7) provides that the application must be rejected if the insurer was satisfied the worker was not a worker or had not sustained an injury. Section 237 of the WCR Act was also amended to the effect that the threshold DPI of 5% was reviewed, a right to review to the Regulator from the insurer's decision was provided for by s 132A(1), and s 540(1)(a)(viii) was inserted.[13]
  1. [46]
    The Regulator contends that Mr Gay is not entitled to the benefit of s 132A of the WCR Act on the basis that Mr Gay had already lodged an application for the lumbar spine injury.
  1. [47]
    The Regulator contends that the Commission is not required to determine whether Mr Gay’s alleged personal injury (if it is found to be a separate personal injury) is an injury for the purposes of s 32 of the WCR Act. The Regulator described the threshold issue as being one in which s 132A will not apply where a worker has previously made an application for compensation for that injury.
  1. [48]
    The Regulator submits that the case law strongly supports its constructions of the provision. The Regulator contends that ss 132A, 132 and 108 should be read together with the consequence that the relevant issue for determination is whether there is a separate injury rather than a separate event.

Statutory construction of the relevant provision

  1. [49]
    The approach to be taken to ascertain the true meaning of the words used is well settled.[14] The approach requires that the text of the legislative provision in question be construed by reference to its context and its legislative purpose.[15]
  1. [50]
    The relevant principles with respect to statutory construction were considered and summarised in R v A2; R v Magennis; R v Vaziri[16] as follows:
  1. [32]
    The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.
  1. [33]
    Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. “Mischief” is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.
  1. [34]
    This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight.
  1. [35]
    The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen, it was necessary to reiterate that the question of whether there had been a “substantial miscarriage of justice” within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation.
  1. [36]
    These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.
  1. [37]
    None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular, “if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance”. When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.

…

(citations omitted).

  1. [51]
    In SZTAL v Minister for Immigration and Border Protection[17] the High Court identified that consideration of context may include consideration of statutory, historical and other context as follows:[18]

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

…

(citations omitted).

  1. [52]
    Additionally, s 14A of the Acts Interpretation Act 1954 (Qld) provides that, when interpreting a provision, the interpretation that best achieves the purpose of the Act is to be preferred.
  1. [53]
    Relevant to the statutory context as a whole, the objects of the WCR Act provide:

5  Workers’ compensation scheme

  1. This Act establishes a workers’ compensation scheme for Queensland—
  1. providing benefits for workers who sustain injury in their employment, for dependants if a worker’s injury results in the worker’s death, for persons other than workers, and for other benefits; and
  2. encouraging improved health and safety performance by employers.
  1. The main provisions of the scheme provide the following for injuries sustained by workers in their employment—
  1. compensation;
  2. regulation of access to damages;
  3. employers’ liability for compensation;
  4. employers’ obligation to be covered against liability for compensation and damages either under a WorkCover insurance policy or under a licence as a self-insurer;
  5. management of compensation claims by insurers;
  6. injury management, emphasising rehabilitation of workers particularly for return to work;
  7. procedures for assessment of injuries by appropriately qualified persons or by independent medical assessment tribunals;
  8. rights of review of, and appeal against, decisions made under this Act.
  1. There is some scope for the application of this Act to injuries sustained by persons other than workers, for example—
  1. under arrangements for specified benefits for specified persons or treatment of specified persons in some respects as workers; and
  2. under procedures for assessment of injuries under other Acts by medical assessment tribunals established under this Act.
  1. It is intended that the scheme should—
  1. maintain a balance between—

(i) providing fair and appropriate benefits for injured workers or dependants and persons other than workers; and

(ii) ensuring reasonable cost levels for employers; and

  1. ensure that injured workers or dependants are treated fairly by insurers; and
  2. provide for the protection of employers’ interests in relation to claims for damages for workers’ injuries; and
  3. provide for employers and injured workers to participate in effective return to work programs; and
  1. (da)
    provide for workers or prospective workers not to be prejudiced in employment because they have sustained injury to which this Act or a former Act applies; and
  1. provide for flexible insurance arrangements suited to the particular needs of industry.
  1. Because it is in the State’s interests that industry remain locally, nationally and internationally competitive, it is intended that compulsory insurance against injury in employment should not impose too heavy a burden on employers and the community.
  1. [54]
    Section 6 of the WCR Act provides how the scheme is to be administered.
  1. [55]
    Section 132 of the WCR Act provides a procedure for applying for compensation. Compensation, under the WCR Act, is an amount for a worker's injury payable under chapters 3, 4 and 4A by an insurer to, inter alia, a worker.
  1. [56]
    Accordingly, an application pursuant to s 132 of the WCR Act is an application for an amount of compensation to be paid for a worker's injury.
  1. [57]
    'Injury' is defined in s 32(a) relevantly, as a personally injury arising out of, or in the course of employment, if the employment is a significant contributing factor to the injury.
  1. [58]
    Section 132A(1) provides that the section applies to a worker who has not made an application under s 132, that is someone who has not applied for compensation to be payable for a worker's injury.
  1. [59]
    If it is the case that no application under s 132 has been made, then s 132A(2) provides that the worker may apply to the insurer to have the worker's injury assessed under s 179 to decide if the worker's injury has resulted in a DPI.
  1. [60]
    In order to determine whether s 132A(1) applies, it will be necessary to consider the subject matter of the s 132 application for compensation and the s 132A application. This will necessarily include consideration of what the 'worker's injury' is in each of the applications.
  1. [61]
    The purpose of s 179 is to assess if a worker has a permanent impairment and, if so, the DPI. This process entitles a worker to fill a notice of claim for damages. In order to seek damages a worker, inter alia, must have received a notice of assessment for the injury and the DPI for the assessed injury must be more than 5%. [19]
  1. [62]
    Accordingly, s 132A provides a process for a person who has not made an application for compensation under s 132 of the WCR Act, and consequently is not entitled to compensation for the injury, to seek an assessment of permanent impairment for their claimed injury pursuant to s 179 of the WCR Act and to then go down that path to apply to seek damages.
  1. [63]
    This approach to the construction of s 132A was the approach taken in Top Class Turf Pty Ltd v Parfitt[20] where it was relevantly held:[21]

The applicant contends that s 132A does not purport to extend the categories of workers entitled to seek damages pursuant to s 237(1) to include those workers who have had their applications for statutory compensation rejected, whether on the basis of late lodgement or on the merits of the application. Given the reasoning above, I consider this is incorrect, as no application under s 132 has been made. Further, the respondent contends that that s 132A does not provide any entitlement to damages but rather is merely a mechanism whereby a person can apply for an assessment of the injury where they have not made an application for compensation under s 132 of the Act. Thus, construing “application” in s 132A consistently with the decision in Jacobs does not, in the respondent’s submission, extend the categories of workers to which s 237(1) applies. That, in my view, is correct.

  1. [64]
    The Regulator contends[22] that if I determine the 'threshold' issue as to whether s 132A applies in Mr Gay's favour, the matter should then be remitted back to the Regulator to determine if Mr Gay suffered an injury within the meaning of s 32 of the WCR Act.
  1. [65]
    I do not accept that this is a proper construction of s 132A of the WCR Act.
  1. [66]
    The plain and ordinary meaning of the words in the pre-amended s 132A do not import a requirement on the Regulator to determine if Mr Gay is a 'worker' or has an 'injury' before an application is referred to an assessment. Following receipt of a s 132A application, the insurer is obliged to:
  1. be satisfied that the applicant had not made an application under s 132; and
  2. be satisfied the application was in the approved form, together with the documents prescribed in the Regulation that support the application,
  1. [67]
    Upon satisfaction of the matters in sub-paragraphs (a) and (b) above, the insurer is then required to refer the applicant for assessment pursuant to s 179.
  1. [68]
    This construction is consistent with the purpose of the provision within the context of the WCR Act. Relevantly, the process following the referral of a s 179 assessment includes determining if a worker has a permanent impairment and, if so, to what degree. Following that assessment, the insurer will determine if the applicant is entitled to lump sum compensation[23] which would include consideration of, inter alia, whether there was an 'injury'.
  1. [69]
    There is no basis for reading additional words into the pre-amended s 132A requiring the insurer to determine whether the applicant is a 'worker' or has an 'injury' within the meaning of s 32 of the WCR Act as a 'threshold issue' before the application is referred to an assessment for DPI.
  1. [70]
    Indeed an inference might be drawn from the inclusion of ss 132A(6) and (7) of the Amended Act that prior to the amendment, the issuer was not able to reject an application if, inter alia, the worker had not sustained an 'injury'. In any event, it is unnecessary for that inference to be drawn as an aid to the construction of s 132A in force at the relevant time.
  1. [71]
    Accordingly, at the relevant time there was no requirement for consideration of whether an applicant suffered an injury within the meaning of the WCR Act prior to the s 132A application being referred for assessment of DPI.
  1. [72]
    The consequence of this construction of s 132A as in force at the relevant time, is that it is unnecessary to consider the evidence relied on as to whether Mr Gay suffered an injury within the meaning of s 32 of the WCR Act within this appeal.
  1. [73]
    In order to determine whether a s 132 application for compensation has been made, for the purpose of determining whether s 132A applies, regard must be had to the injury that the application for compensation relates to.
  1. [74]
    The parties differ in terms of how such an assessment occurs.
  1. [75]
    Relevantly, Mr Gay contends regard should be had to the event causing the injury.
  1. [76]
    The relevance of this submission to this appeal is that Mr Gay submits that his injury was caused by lifting pianos during the period 28 July to 10 August 2014, rather than being caused by lifting the filing cabinet on 14 August 2014.
  1. [77]
    The Respondent takes a different approach and referred to an equivalent provision to s 132A in the previous Act being s 253 of the WorkCover Queensland Act 1996, and the case law considering that provision in its submissions as follows:[24]
  1. Section 132A is an equivalent provision to section 253 of WorkCover Queensland Act 1996 (the previous Act), which provided:

"General limitation on persons entitled to seek damages

253. (1)  The following are the only persons entitled to seek damages for an injury sustained by a  worker-

…

  1. the worker, if the worker has not lodged an application for compensation for the injury

…

  1. To remove any doubt, it is declared that subsection (]) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker."
  1. Similar disputes about the identification of the injury for which an application for compensation has been made, where they were or may have been different events nominated in the application for compensation and notice of claim for damages have been determined in the Supreme Court of Queensland, both Court of Appeal and Trial division, as well as in the District Court, and are instructive in this appeal.
  2. In Dowd v Swift Australia P/L [2008] QCA 228, the Court of Appeal dismissed an employer's application for leave to appeal against the decision of the District Court to dismiss an application to strike out some paragraphs of the employee's statement of claim. The basis for the application was that those paragraphs contained allegations that the employee may have injured his back in two alternative events - over a period of time between September 1999 and 13 April 2002 or alternatively, whilst performing light duties on 15 May 2002 - both in the alternative to the date of injury initially nominated in the notice of assessment and claim for compensation as 13 April  2002. 
  3. Dutney J, with whom Keane JA and Mackenzie AJA agreed stated:

[10] The submissions of the applicant before the primary judge, and before this court, were predicated upon the assumption that the Act requires an injury to be related to a specific event. By nominating alternative events as giving rise to the injury the respondent should be taken to be alleging three separate injuries

[12] Sections 253 and 266 of the Act in force at the time of the respondent's injury, limited the right to commence an action for damages for personal injury to a worker who had received a Notice of Assessment for the injury. Section 266 identified the Notice of Assessment as one under Chapter 3 Part 9 of the Act.

[13] Chapter 3 Part 9 is concerned with the identification of, and assessment of permanent disability arising from an injury. While undoubtedly, the date an injury is suffered is significant in its identification, it is not per se a matter to which the statutory provisions make reference.

  1. The Court of Appeal agreed with the District Court judge that the injury for which the assessment for permanent impairment was being sought was the injury for which an application for compensation and notice of assessment had been given, despite the possibility of three contributing events rather than the one originally nominated (my underlining).
  1. In Andersen v Aged Care Employers Self Insurance [2011] QSC 101, the applicant sought a declaration  that her L5/S1 prolapsed disc had already  been assessed.  She had made a claim for compensation for a L5/SI prolapsed disc arising out of events at work on 22 or 23 August 2007 and had received a notice of assessment in relation to the injury. The notice of assessment referred to the injury on 23 August 2007.  Mrs Anderson then gave a notice of  claim for two injuries - one on 20 or 21 August and one on 23 August 2007. Her self-insurer employer stated that to claim for the first injury, it had to be assessed.
  1. Dalton J at [23] stated:

An injury is not the means by which damage is inflicted, but is the effect on the person of the worker of an event, as can be readily seen when the schedules to the WCR Regulation are perused. In common parlance one might speak of being injured by lifting a heavy load. But in terms of the WCRA definitions, lifting the heavy load is the event, the injury is what results from that, say a back strain.

  1. Dalton J found that the applicant had suffered from and had been assessed for one injury, being her LS/S1 disc prolapse or strain of her lower back with aggravation of pre-existing degeneration of the lumbosacral disc, whether there was one event or two.
  1. Dalton J at [24] stated:

Ms Andersen's application for compensation was for one injury within the meaning of the WCRA. That injury was described by her as "L5/S1 prolapsed disc" and ACES (self-insurer) accepted it as a "strain of lower back with aggravation of pre-existing degeneration of the lumbosacral disc", in accordance with the description of its doctor, Dr McPhee.

Ms Andersen's  of 11 September  2007 was manifestly  about one injury, as defined,  see the underlined parts extracted above. It described one set of symptoms: pain in her lower back and down her right leg, first temporarily, and then more permanently. It described her attendance on her doctor for that injury when the pain from it persisted, and the doctor's diagnosis of it. The statement  says that Ms Andersen did not know what  had caused  her  injury, but suggested two events within the meaning of the WCRA -on       22 and 23 August 2007 - as possibilities. Dr Martin thought the earlier event the likely cause; Dr McPhee the later. The point is, both of them assessed one injury, and this is evident from the underlined parts of their reports, above.

  1. Dalton J referred to the "artificiality of the exercise" of an orthopaedic surgeon attempting three years later, to separate the cause of one injury to the lower back into two "'injuries" because of two events occurring on subsequent days.
  1. In Otto v Mackay Sugar Ltd and Anor [2011] QSC 215, Douglas J considered whether the applicant worker was entitled to seek common law damages for a personal injury to his lower back which occurred over a period of time from September 2003 to October 2009. He was unable to seek those damages if he had previously lodged an application for compensation.
  1. The plaintiff had made an unsuccessful application for compensation for a low back injury which occurred on 13 February 2009 but it was also recorded on the forms that there was no specific injury time or date. Douglas J acknowledged there were various mistakes in the forms and the applicant had completed grade 10 but relied upon his employer to complete any paperwork they needed.
  1. In the Notice of Claim for damages, the applicant described the low back pain coming on between February 2009 and 25 September 2009 at which time he was unable to continue work due to excruciating pain.
  1. The appellant's evidence was that his pain commenced in about February 2009, then settled during a slack period but then was "niggling" from about June 2009 until he woke with excruciating pain on 25 September 2009 and was unable to continue work.
  1. Douglas J concluded that when "one examines the available evidence, it is artificial in my mind, to treat the workers' compensation application as referring to an event that actually happened on 13 February 2009", and made a declaration that it was the same injury that was the subject of the application for compensation and the notice of claim for damages.
  1. In Ley v Woolworths [2013] QSC 59, North J referred to earlier cases, including those discussed above. In particular, he referred to the "date of incident" on the application for compensation form as the date on which the applicant became aware of a potential injury (by the onset of symptoms) and was unlikely to have had medical opinion about the causation of the condition.
  1. North J found that:

"whilst different 'events ' within the meaning of that term found in s 31 of the WCRA have been expressly or by implication identified when the application for compensation is compared with the notice of claim for damages, I take the view that the same "injury" within the meaning of that term used in s 32 of the WCRA is the subject of both the application and notice of claim".

  1. Thus, as the cervical spine injury allegedly caused by a specific activity on a specific date in the application for compensation had been assessed, the claim for damages which was for an over a period of time injury could proceed pursuant to section 237(l)(a)(i).

    (Citations omitted).

  1. [78]
    Whilst it is accepted that two separate events might lead to two separate injuries within the meaning of s 32 of the WCR Act, what is critical for my consideration of this matter is whether the s 132 and s 132A application relate to the same injury.

The respective Applications made pursuant to ss 132 and 132A

  1. [79]
    Mr Gay contends that a different event to that described in the s 132 application caused the injury relevant to the s 132A application. Relevantly, Mr Gay's s 132 application for compensation dated 27 August 2014 referred to:[25]
  1. the nature and location of the injuries as being, "lower back, trauma to muscles/tendon not classified";
  2. the date of injury as being 9 August 2014 (all parties agree the correct date is 14 August 2014); and
  3. the injury having occurred when lifting filing cabinets.
  1. [80]
    This information was confirmed and expanded on in a conversation with a WorkCover representative on 3 September 2014.[26] The notes from that conversation record the following:

Spoke to Aaron

Are you wishing to proceed with your WorkCover Claim? YES

  • – YES full time worker – Worker is a furniture removalist – Been with company for 4 years

What was the event?

  • – Worker was picking up a small 3 drawer filing cabinet, as turning it over to place on top of another filing cabinet
  • – Worker felt "same pain as last time" when your back goes

Injury sustained? Lumbar back pain with right leg pain (Unsure if disc of muscular at this stage)

When did event occur? 09/08/204 What time? 8am (Worker starts at 6am)

Did anyone witness the event? YES – Joel Tanner

Who did you report the incident? Manager – Jason Flynn (DOI)

Did you complete an incident report? YES

  • – Worker did not go to the GP immediately as thought is [sic] would be okay
  • – Worker has back pain on and off (been removalist for 30 years)
  • – Worker has been off work since DOI
  • – Worker advised that [he] was at home on 23/08/2014 and took a step down and jarred his back and was taken to hospital in an ambulance

What are the symptoms you are currently experiencing?

  • – Pain in lumbar back, cannot stand up or lie down for too long
  • – Worker was taken from home on the 23/08/2014

Have you ever experienced these symptoms prior to DOI?

  • – YES, last time was extreme pain
  1. [81]
    On 1 October 2014, WorkCover rejected Mr Gay's s 132 application for compensation.
  1. [82]
    Mr Gay signed the s 132A application on 31 March 2016 and it was submitted by his legal representatives to WorkCover on 10 October 2016.
  1. [83]
    The s 132A application[27] included the following information:
  1. that the event resulting in the injury occurred over a period of time commencing on 28 July 2014 and ending on 10 August 2014;
  2. that symptoms first began on 9 August 2014;
  3. that Mr Gay first consulted a medical practitioner on 23 August 2014 when he attended the Townsville Hospital;
  4. that the injury said to have been sustained was located in Mr Gay's lumbar spine and the nature of the injury was a soft tissue injury; and
  5. that the specific incident was not reported to his employer.
  1. [84]
    Mr Gay provided the following description of the event causing the injury in the s 132A application as follows:

Between 28 July 2014 and 10 August 2014 the Applicant was required, together with his co-workers, to dissemble, package, transport and reassemble pianos to and from various locations in Townsville for use in performances during the Australian Festival of Chamber Music ("the task").

On each workday during the above period, the Applicant and his co-workers generally moved at least 5 or 6 pianos, and on occasions, up to 20 pianos per day.

The pianos were a combination of upright, baby grant, grant and a concert grand piano, each of which weight between approximately 250kgs and 750kgs.

As a consequence of the repetitive and excessive physical strain involved in the task, the Applicant suffered injuries to his lower back.

  1. [85]
    From the above, Mr Gay contends that each of the separate events relied on respectively in the s 132 application and the s 132A application, result in two separate injuries. The consequence of this, Mr Gay argues, is that s 132A(1) does not apply.

The evidence

  1. [86]
    Mr Gay commenced employment with Kent Transport Industries Pty Ltd on 5 October 2011. Whilst Mr Gay's contract of employment[28] states that Mr Gay's position is that of a casual driver,[29] it seems agreed between the parties that Mr Gay performed duties as a Furniture Removalist as well as driving the removal truck.[30]
  1. [87]
    Indeed, the evidence is that, except for a brief period working as a truck driver, Mr Gay worked predominantly as a furniture removalist for 30 years.[31]
  1. [88]
    The Q-Comp Worker Claim History attached to Mr Gay's s 132A application indicates that, prior to 2014, Mr Gay had made five WorkCover claims with respect to injuries to his lower back variously described as "muscle/tendon strain", "soft tissue injuries", or "sprains and strains of joints" to his back. Two of these claims were lost time claims in 2013.
  1. [89]
    This history is relevant as Mr Gay gave evidence about being required to be "at full capacity" to carry the pianos,[32] and also previously that he managed his sore back by taking rest days and utilising annual leave, following which his back "would come good."[33]
  1. [90]
    Mr Gay further gave evidence that following the WorkCover claims in 2013, and prior to the music festival in 2014, that it was not unusual for him to get a twinge or niggle in his back when both at work and at home. Mr Gay said when that occurred, to manage the symptoms he would take, "some drugs and probably laydown."[34] Mr Gay said he treated his back pain with Aspro mixed with Brufen for pain relief.[35]
  1. [91]
    Relevant to the appeal, Mr Gay and his colleagues loaded and unloaded and then reloaded pianos for a music festival in and around Townsville between 25 July 2014 and 11 August 2014, although the period claimed by Mr Gay in the s 132 Application was 28 July 2014 to 10 August 2014.[36]
  1. [92]
    Tendered into evidence was a table showing the movement of the pianos during the course of the festival, as well as the individual job dockets for each of the jobs.[37]
  1. [93]
    The evidence confirms that the last day of the music festival was 11 August 2014 and that Mr Gay worked that day.
  1. [94]
    Mr Gay did not work exclusively at the music festival throughout the period 25 July to 11 August 2014. The evidence was that he continued to perform a variety of work, with his team, during this period including, for example:
  1. driving a return trip from Townsville to Bowen in order to lift and pack 4000kg of household goods on 4 August 2014;[38]
  2. lifting and packing 2000kg of household goods on 4 August 2014;
  3. lifting and packing 3000kg of household goods on 7 August 2014;
  4. lifting and packing 3000kg of household goods on 8 August 2014; and
  5. lifting a granite bench-top and walking it up two storeys on 12 August 2014.
  1. [95]
    During the course of his evidence, Mr Gay gave evidence[39] of experiencing physical difficulty at St James' Cathedral on 1 August 2014 as follows:

What do you remember of that one?---On that day, I – I think we had to deliver them in the afternoon and I woke up late. Michael Daniels was there, and the rest of the crew was there. I couldn’t stand up straight. I couldn’t – couldn’t walk properly, couldn’t do much at all, but they were waiting for me when I got there.  They hadn’t

25 been fed.  And that was the last day that I really struggled to – yeah – do anything. Well, I did nothing on that day.

  1. [96]
    However, inconsistent with this evidence was evidence that later on in that same day, and on the following day, being 1 and 2 August respectively, Mr Gay also performed a furniture lift at Ergon Energy. Mr Gay also worked on 3 August 2014 including being involved in moving a piano. Indeed, Mr Gay continued to work both at the music festival and at other sites during the relevant period.
  1. [97]
    Further, and as noted above, Mr Gay performed the job in Bowen on 4 August 2014, which included driving to and from Bowen as well as packing and removing 2000kg of household goods.
  1. [98]
    Similarly, it was noted above that Mr Gay worked on 7 and 8 August 2014.
  1. [99]
    This evidence indicates that Mr Gay did not lose any work hours and that he continued to perform his duties as both a driver and furniture removalist, immediately following the event he describes on 1 August 2014.
  1. [100]
    It was contended by the Regulator that Mr Gay had not previously given evidence of an incident at the Cathedral on 1 August 2014, and that it was a recent invention. I also note that the evidence of Mr Gay's team members did not refer to an incident early in the music festival at the Cathedral. I consider that Mr Gay's evidence regarding the physical difficulties he experienced on 1 August to be confused or conflated with his later evidence regarding his difficulties at the Cathedral on 11 August 2014.
  1. [101]
    It appears that Mr Gay did not work on Saturday, 9 and Sunday, 10 August but he continued to work the following days. There was no contention put that Mr Gay was unable to physically work on those days.
  1. [102]
    Relevantly, 11 August 2014 was the last day of the music festival and Mr Gay worked that day. Mr Gay gave evidence[40] of suffering physically as follows:

15 What do you remember of the nature of that difficulty?---I was just bent over and couldn’t straighten up and, yeah, it was just – I just couldn’t walk. I drove a vehicle in there, they took control. Michael Daniels was there. He had left a vehicle at the airport which we had to go and get a piano trolley with a – they call it a semi. We had to go there to pick that up.  I just stayed at the – at the church.  He went and got

20   that. I had no more participation after that. I think that was the last piano that we done, I think. So I definitely remember it was up there at that church at Cleveland Terrace.

All right.  And what were you feeling when you say you were unable to - - -?---Just

25 pain.  My wife told me not to go to work, but I had the vehicle to move the piano, so I had to go to work. So – we’d been to work earlier in the morning and we’d gone home, and then they called us in to do it and I [indistinct] But, yeah, she just told me not to go to work, because I just couldn’t walk properly. I couldn’t straighten up. I was in - - -

30

How long had you not been able to walk properly for?---It just got worse and worse and worse. Just so – once you warm up, you’re sort of good. Have your back brace up. Once you lift constantly all the time, you sort of warm up. Once you cool down, you sort of go back to where you were with soreness, so – but, yes, I was sore. That

35day I just remember, I couldn’t do nothing, nothing at all.  So - - -

  1. [103]
    Mr Gay was asked if he recalled taking any time off following 11 August 2014.  His response was general in nature as follows:[41]

…If I’d go home and rest, two days, three days, my back

5 would come good, or good enough to go back to work, and – yeah, I went back to work.  I’d normally go back to light duties, but on the last time, they – they wouldn’t

– didn’t want to get – they wouldn’t take me back on light duties, but I had to be back to full – full – full capacity at work.

  1. [104]
    Relevantly, Mr Gay attended work and performed duties on 12 August 2014. Mr Gay states that he remembers being at home on 13 August 2014 and lying on the floor to relieve his back. Mr Gay attended work on 14 August 2014. This day will be considered further below.
  1. [105]
    The Commission heard evidence from three of the team Mr Gay worked with including Mr Bolhsen, Mr Taylor and Mr Gatcliffe.[42]
  1. [106]
    Each of the witnesses gave general evidence that they worked with Mr Gay during the relevant period including during the music festival. They were taken through the work dockets and whilst they confirmed that they performed work loading, unloading and re-assembling pianos, they did not seem to have an independent recollection of the individual jobs. [43] This is perhaps not remarkable given the passage of time between the events and when they each gave their evidence. Mr Gatcliffe also gave evidence that because they had done the music festival in previous years, he was not able to really distinguish that year from other years.
  1. [107]
    Mr Bolhsen gave evidence[44]  that he recalled Mr Gay walking around "stiff and sore" "after he moved an Ergon job on the Saturday and then had to move a piano after that, and then on the Sunday morning where he turned to pick the piano up."[45]
  1. [108]
    Mr Bolhsen indicated that when he saw Mr Gay bent over, he would tell him to do the easier jobs. To Mr Bolhsen's recollection, Mr Gay worked every day during the relevant period.[46]
  1. [109]
    When asked about whether he could recall Mr Gay injuring himself lifting a filing cabinet, Mr Bolhen's evidence was, "not off the top of my head at the moment, no."[47]
  1. [110]
    Mr Taylor also gave evidence of the event relied on by Mr Gay as follows:[48]

When you say “most of the heavy lifting” do you mean the most occasions or are you talking about the weight on a particular occasion?---The – the weight. Aaron and I were the ones that picked up the pianos as in he was the one helping me lift them up

25 onto the piano trolleys.

Right. Now, did you make any observations of Mr Gay and his – his body or his appearance during this period of time?---Only one occasion.

30 What do you recall of that occasion?---Aaron and I were squatting down to pick up a grand piano from the skid. As we’ve gone to lift up – Aaron’s pulled away from me and someone else has switched over with Aaron. He was on the – on a wall or somewhere like that, just hunched over with a – just saying he had a sore back.

35 Yes.  Do you recall that he said anything?---Pardon?

Do you recall if he said anything?---No.

  1. [111]
    Mr Taylor's evidence was that after this event he was partnered with someone else and hardly ever saw Mr Gay as a result. However, the evidence contained in the work docket suggests that Mr Taylor continued to work with Mr Gay throughout August 2014.
  1. [112]
    Mr Gatcliffe also gave evidence about the event at the Cathedral as follows:[49]

And what was he doing at the time he said, “Shit - - -?---He was on the end with the kidney which had to be tilted and lifted to get the trolley underneath it. So it would have been Aaron and another person at that end lifting it. I would

20  have been where 20 the keyboard is pulling it towards me and I’m trying to balance the weight while the trolley went under.

What did you see after he called that out?---I – I – he just hobbled over and sat on the

25  furniture pads and said, he – he’s hurt, so we just left him there for as long as we could and kept moving, because by that stage it was already to go. So then we didn’t have time to rest. We said, “Do you want to call it quits?” He said, “No, no, just let me sit for a minute – in a couple of minutes and see how I go”.

30  How did he go?---He was very sore. Like, we changed positions were we wasn’t taking so much weight and he stayed with us.

Sorry, just continued working?---That’s correct.

35 With lighter weights?---Yep.

  1. [113]
    Mr Gatcliffe was not sure if an incident report was filled out about the event but claims he may have told management that Mr Gay hurt his back when they returned to the office. However, when cross-examined further about this, Mr Gatcliffe was unable to recall what was said during any discussions with management if it did occur.[50] The steps taken and the alleged reporting of this incident can be distinguished from Mr Gatcliffe's and others' conduct following the incident on 14 August 2014.
  1. [114]
    An incident report records an event occurring at 8am on 14 August 2014 which is considered further below.
  1. [115]
    Mr Gay was rostered to work on 14 August 2014. Mr Gay gave evidence that he recalled suffering a back strain when lifting a filing cabinet at work that day. His evidence was as follows:[51]

40… I was lifting one of the filing cabinets on to the other filing cabinet. I’ve just done the twist. Just hurt my back. I’ve told Joel that I’ve hurt my back. I couldn’t, sort of, move. He said don’t do no more and they rang Jason.  I think Danny come and got me, if I remember correctly. Took me back to the yard.  I think it was a Saturday morning because Jason Flynn had to come in and that’s when we

45done the incident report.

  1. [116]
    As 14 August 2014 was a Saturday, Mr Flynn, Mr Gay's manager, was not working and came into the office after being told of the incident by Mr Gatcliffe, in order to assist Mr Gay to complete the incident report.
  1. [117]
    Mr Gay was asked how he got through the remainder of the day following the incident on 14 August 2014. His response was as follows:[52]

…I think I just went home and rested. And the following day, rested as well. Jason told me to have the day off and Michael might’ve told me to have the day off.  And then that’s why, I think, they were down

5 as a no-show.  And I’d normally be laid down for a couple of days, just resting on the floor. My back would, sort of, come good enough to go back to work. Otherwise, I would be filling out incident reports all the time. And Mick was happy with that. Jason seemed happy with it. I could run that as sick days and holidays and normally go back on light duties.  If there was no light duties, they said I had to go back to full

10 capacity, which stated carrying pianos upstairs.  Had to be at full capacity for it, so.

  1. [118]
    The immediate step taken by Mr Gatcliffe to notify Mr Flynn who then came into work on Saturday 14 August 2014 in order to complete the incident report can be constrained to the alleged conduct of Mr Gatcliffe and Mr Flynn's alleged response to being advised that Mr Gay also injured his back on 11 August 2014.
  1. [119]
    Mr Gay was asked how his back was at the commencement of the music festival. He responded that, "it was all right, from what I can recall."[53] 
  1. [120]
    However, Mr Gay's evidence was that by the end of the festival his back had deteriorated. His evidence was as follows:[54]

And how was it at the end?---Yeah, as I said, it just got deteriorated worse and worse, so – but I couldn’t stand up, couldn’t straighten up, and I was no good to nobody.  I couldn’t – couldn’t work at all.

  1. [121]
    The evidence was that following the incident on 14 August 2014, Mr Gay was advised by his employer to take several days off work. He then returned to work. Relevantly, he was scheduled to work on 23 August 2014.
  1. [122]
    On 23 August 2014, Mr Gay was rostered to work which involved an office relocation. It was a Saturday and Mr Gay recalled commencing work early and working until approximately 2pm.
  1. [123]
    Mr Gay's evidence was that the office relocation required approximately four or five workers, including himself, to carry Dell computers up a stairwell. His evidence was that is something they would not ordinarily do as such computers are often located somewhere like a basement. Mr Gay gave the following evidence:[55]

What was happening when you went to the – before you went to the Townsville

40 Hospital?---We were carrying, I think, Dell computers or – I can’t think of the name of them. But we needed five – four or five of us to carry them up – up the stairwell. At the Tesla House, I think it is. At the Garbutt two building. And that’s something we wouldn’t normally do. Like, they don’t normally go upstairs. There would be section in the basement or something like that.  Michael Daniels told us that we were

45 taking them upstairs so we – we took them upstairs.

  1. [124]
    After completing this job, Mr Gay returned home. His evidence was that he commenced to walk out into his yard with the intention of cutting a palm frond. He said he took one step down into the yard and immediately started experiencing back pain and was required to lean on a wheelie bin for it to take his weight whilst he waited for the ambulance. The ambulance officers administered morphine before taking Mr Gay to the Townsville Hospital. 
  1. [125]
    The Townsville Hospital triage notes[56] record that Mr Gay presented as follows:

ACUTE ON CHRONIC LUMBAR BACK PAIN, ONSET WHILST BENDING OVER @1400, HX CHRONIC BACK PAIN 3ML METHOXY WITH QAS, NIL OTHER ANALGEISA TODAY…

  1. [126]
    The progress notes[57] completed by Dr Samson, JHO, in the emergency department, relevantly state:

Exacerbation of low back pain moving pianos x22! Today

Pain lower lumber…

  1. [127]
    From the evidence, Mr Gay did not move 22 pianos that day or any other dat. Relevantly, the last day of the music festival was some 12 days earlier. 
  1. [128]
    Mr Gay was discharged from Townsville Hospital later on 23 August 2014. The discharge letter[58] authored by Dr Samson relevantly states:

Dear NO GP,

AARON SCOTT GAY presented to the Emergency Department at TOWNSVILLE HOSPITAL on the 23 Aug 2014 at 16:18. The presenting problem was ACUTE ON CHRONIC LUMBAR BACK PAIN, ONSET WHILST BENDING OVER @ 1400, HX CHRONIC BACK PAIN, 3ML METHOXY WITH QAS, NIL OTHER ANALGEISA TODAY. NIL ALLERGIES, TAKES REFLEX TABLETS PRN..

The diagnosis was LOW BACK PAIN.

Dear Dr,

Aaron presented to TTH ED today with low back pain following moving heavy furniture at work today. Aaron was able to mobilize, had nil sciatic component to his pain and gives nil red flags such bladder [sic] or bowel dysfunction, altered perineal sensation, previous malignancy or previous IVDU with his history. He has had multiple previous exacerbations of his low back pain and sees a physiotherapist.

O/E lower limb power, tone, sensation and reflexes normal.

He has been managed in ED with paracetamol, codeine, oxycodone, diazepam and ibuprofen. I have discharged him home with scripts for regular TDS 400mg ibuprofen (with food), SR Paracetamol and a limited script of oxycodone (10x 5mg tablets only) as a PRN for uncontrolled pain. We have discussed the importance of staying as active as possible with his pain.

  1. [129]
    On 24 August 2014, Mr Gay attended a consultation with Dr Richard Jiang, GP. Dr Jiang was not called to give evidence but his notes were tendered into evidence. Dr Jiang relevantly recorded the following notes:

Reason for visit:

Worker's compensation.

Sustained injury at work on 9/8/2014 while [sic] was lifting a filing cabinet. The pain got worse when he was cutting garden hedges at home on 23/8/14.

There has been pins & needles in the R upper leg, lateral aspect

Back strain

  1. [130]
    Dr Jiang makes no record of Mr Gay advising him of having earlier injured himself when working during the music festival.
  1. [131]
    Dr Jiang also completed a worker's compensation medical certificate on 26 August 2014. That certificate records that Mr Gay suffered a lumbar back strain after lifting a filing cabinet on 9 August 2014.
  1. [132]
    On 27 August 2014, following the consultation with Dr Jiang, Mr Gay made the s 132 application for an injury to his "low back, trauma to muscles/tendon not classified which occurred on 9 August 2014" (as already noted, the agreed date is 14 August 2014).
  1. [133]
    Mr Gay's s 132 application for compensation was rejected by WorkCover on 1 October 2014.
  1. [134]
    On 31 March 2016, Mr Gay signed the s 132A application which was sent to WorkCover on 10 October 2016. In that application, Mr Gay nominated that the cause of his injury was lifting pianos at the music festival.
  1. [135]
    It is relevant to note that prior to Mr Gay's attendance at the Townsville Hospital, he had not sought any medical attention between 28 July 2014 and 23 August 2014.

Medical Reports of Dr Maquire

  1. [136]
    Mr Gay relied on two medical reports[59] of Dr Maguire, Orthopaedic Surgeon, who examined Mr Gay on 9 September 2016. No further evidence in chief was adduced from Dr Maguire and he was not cross-examined by the Regulator. Each of Dr Maguire's reports were tendered into evidence. 
  1. [137]
    The letter of instruction[60] from Mr Gay's solicitors to Dr Maguire was also tendered into evidence. The background that was provided to Dr Maguire was as follows:

Based on our understanding of the instructions from our client between 28 July 2014 and 10 August 2014, Mr Gay was required together with his co-worked [sic] to disassemble, package, transport and reassemble pianos to and from various locations in Townsville for use in performances during the Australian Festival of Chamber Music ("the task").

On each workday during the period, our client and his co-workers generally moved at least 5 or 6 pianos and on occasions up to 20 pianos per day. The pianos were a combination of upright, baby grand, grand and a concert grand piano each of which weighed between approximately 250kg to 750kg.

As a consequence of the repetitive and excessive physical strain involved in the task, Mr Gay suffered injuries to his lower back.

  1. [138]
    A chronology was provided in the letter of instruction which included the following events:

Date

Event

Source

20.03.69

Date of Birth of Aaron Scott Gay

 

PRE INJURY EVENTS

01.05.85

Lower back sprain while employed with Downard Pickfords when missed the walk board coming out of removalist  truck  while carrying a carton.

Did not attend on Doctor or take time off work, only notified WorkCover.

State Claim File (840932268)

20.12.10

Attendance with D Kerry Patane for acute exacerbation of  back pain. 

Prescribed Panadeine Forte and did not take any time off work.

Fairfield Waters Records

03.05.11

Lower back strain while employed with Nicholson Transport Holdings we Stat Claim carrying an organ up a flight of internal stairs in a Church.                           

Felt a pain in the top of his back, physio said lower back in   the centre, spasms (devils grip).

Was off work for approx 1 1/2 weeks and treated with rest, heat, medications (Valium / Voltaren) and physiotherapy (Cleverley Physio). Returned to full duties at work.

WC State Claim File No.

 

SC10CD870067

May 2011

Commenced employment with Kent Moving & Storage

Instructions from client

11.02.13

Soft tissue injury to lower back at work when moving a fridge  down two we Stat Claim flights of stairs with an inexperienced co-worker. When at   bottom of stairs and placing fridge down he was bearing the majority   of weight and felt pain in back.

Attended TTH Emergency Department for pain and referred for X- Ray/CT scan by GP.

Off work until 18 March 2013 and returned on suitable duties. Had further time off work from 17 April to 19 April 2013 and returned on suitable duties from 20 April 2013.

WC Stat Claim File No. S12AW040886

25.07.13

Assessed by Dr David Ness, Orthopaedic Surgeon at the request of WorkCover who diagnosed work-related exacerbation of underlying             

lumbar spondylosis which has ceased and current presentation due to underlying condition.

No permanent impairment and fit to return to normal duties.

Dr David Ness 25.07.13

02.08.13

Attendance with Dr Michael Khong for QComp Medical Certificate certifying fit for normal duties 

He has pretty much been doing full duties for several weeks. Understands his limitation. Not much point in seeing Dr Emery at this point. Accepts that he will need to watch his lifting practice and commitments carefully from now on. Stick to OHS guidelines.  Can come off WC now.

Fairfield Waters Records

28.08.13

(10 am)

Injury to lower back at work while moving large pot plants in   the back of courier van at the depot. Was bent over picking the heavy   pots up              and foot slipped backwards on dirt and jarred back, did not fall to ground.

Certified unfit for work until 13 September 2013, when he returned to work on suitable duties then full duties.

WC Stat Claim

File No.

S13AW091015

03.10.13

Attendance with Dr Shailesh Tripathi for QComp Medical Certificate certifying return for normal duties. 

Back pain is improved. Nil tender over lower spine, normal lumbar flexion.

Carlyle Medical Centre Records

PIANO MOVING EVENT

28.07.14 to 10.08.14

Employer contracted to facilitate the set up and movements of pianos for the Australian Festival of Chamber Music in   Townsville.

Instructions from client

21.08.14

Aaron sent home from work by Manager as he was still showing signs of not moving freely (limping) and business was   quiet.

WC Stat Claim File No.

S14QM175505

22.08.14

Worked 5 hours.

 

23.08.14

Worked 5 hours.

 

23.08.14

(4.18pm)

Attendance at The Townsville Hospital Emergency Department via Ambulance with sudden onset lumbar back pain from moving heavy furniture at work today

Exacerbation of low back pain moving pianos x22! Today Pain low lumbar nil radiation, able to mobilize ... No recent major trauma.

Past history: multiple episodes of low back pain

TTH Records

25.08.14

Off work and unable to return to full duties.

 

05.09.14

Attendance with Dr Richard Jiang for radiology results and QComp Medical Certificate certifying unfit for work to 26 September 2014

...reports that the back pain slightly improved, but still has tingling in   his lower back, unable to sit too long. He said that he has free ticket to attend function at the Casino (100 year Rugby League in Townsville)  he likes to go, but he  can't.

Carlyle Medical Centre Records

29.09.14

Attendance with Dr Richard Jiang for OComp Medical Certificate certifying unfit for work to 10 October   2014

Has been having pains (sic) and needles, numbness in the upper leg bilaterally since last Fri. The patient has been staying at home.

Carlyle Medical Centre Records

03.11.14

Attendance with Dr Richard Jiang for QComp Medical Certificate certifying fit for normal duties from 4 November   2014

The patient said that he is going to be in a supervisor role, no heavy lifting involved.  He employer provides a list of tasks for approval.

Carlyle Medical Centre Records

07.11.14

Kent Rehab and Return to Work write to Dr Jiang asking capacity to carry out inherent requires of normal role including:-

  • unrestricted lifting
  • at times un-assisted lifts
  • repetitive bending/stooping, twisting
  • and generally unsupervised as they  are on the road with other crew members

Carlyle Medical Centre Records

02.01.15

CT Spine Lumbosacral

History: Lumbar back pain and right leg pain

Findings: Broad based posterior disc protrusion at L3/4 and L4/5. At L4/5, there is significant indentation of the thecal sac, narrowing right L4/L5 neural foramen and possible compression of the right L5 nerve root within the right lateral recess. MRI recommended to assess further.

Dr Glenna Gibson 02.01.15

29.01.15

Attendance with Dr Richard Jiang for referral for MRI Lumbar Spine and Centrelink certificate

Carlyle Medical Centre

05.03.15

Attendance with Dr Richard Jiang for referral for MRI Lumbar Sacrum "Back pain with numbness in legs"

Carlyle Medical Centre

10.03.15

Kent  Removals terminate  employment effective  10 March 2015

Letter – Kent Removals

12.03.15

MRI Lumbar Spine

History:  L3/4 and L4/5 disc bulge on recent lumbar   CT

Findings:  Mild chronic disc degeneration L3/4 and L4/5. Left of  central disc bulging L3/4 with focal tear in the annulus fibrosus and early compression of the l4 nerve root intraspinally on the left. Central disc

bulging L4/5 with central tear in the annulus fibrosus but no nerve compression  on this level.

 

18.03.15

Attendance with Dr Richard Jiang for completion of  Centrelink Disability  Support  Pension forms

Carlyle Medical Centre

  1. [139]
    As can be seen from the above, the letter of instruction and the chronology included in it, is absent any reference to the filing cabinet incident on 14 August 2014, the attendance on, and the issuing of the workers' compensation medical certificate by Dr Jiang, and the s 132 application. Despite this absence, Mr Gay does refer to the filing cabinet incident in the history provided to Dr Maguire. Dr Maguire's report records that he took the following history from Mr Gay:[61]

Over the period in question, Mr Gay was employed by Kent Removals as a removalist driver. He had been employed by them for a period of five years. During this particular time, the Australian Festival of Chamber Music is undertaken in Townsville. The tasks required during this period were to shift between five and twenty pianos of varying types and size to various locations throughout the festival period. During the particular period in question, Mr Gay developed pain progressively throughout the period of 28 July 2014 to 10 August 2014. He states that he was then booked to see a medical officer. On the Saturday following the festival of music, he was lifting the filing cabinet when doing an office move when tipping the filing cabinet, he developed severe pain in the lumbosacral spinal region. Again,  he reported  the incident and when he was at home following the incident, he states that he was cutting  a  small palm frond and the pain became even more severe. The predominance of the pain was present at the time. He described  the activity of cutting the  frond  as  a very minimal  activity.  He developed severe pain in the lower back region with some pain to  his buttock  area,  though no pain in the lower limbs. He was taken by Ambulance to The Townsville Hospital and later discharged.

Since this particular episode, the pain has not resolved.  He  has  had  ongoing  issues  with his back with severe pain which is described as sharp and in the  mid  lumbar  region  on  the left  hand side. This causes severe muscle spasm associated with this and regularly puts  him  into what he describes  as the foetal position  as the pain is so  severe.

Mr Gay takes Targin, Valium, Endone, Brufen and Paracetamol for the pain. When it is particularly severe, he gets some relief with forward flexion and then traction over a bench.

Mr Gay has attended the local hospital on multiple  occasions  since the  most  recent  incident and is given narcotic medication to help relieve his discomfort. He has also  been reviewed  by  Dr Laurence Marshman at The Townsville Hospital and the use of epidural steroids has been discussed. He has been undergoing a course of physiotherapy with little resolution of his symptoms. He has attended hydrotherapy which exacerbated the symptoms. He also uses a lumbosacral  corset to relieve some of the  discomfort.

I note that Mr Gay has a long and extensive history of multiple  presentations. He has worked as a furniture removalist for most of his working life and has intermittent problems dating back as early as 1985. A significant amount of these presentations began increasing  in  2013 and then in 2014. There have been multiple presentations since the 2014 injury period.

(emphasis added).

  1. [140]
    Dr Maguire diagnosed Mr Gay as sustaining a degenerative disc disease (spinal spondylosis) with disc profusion at L3/4 and L4/5 which is left sided at L3/4 and central L4/5.
  1. [141]
    Dr Maguire expressed an opinion that Mr Gay's symptoms were consistent with the complaint in the following terms:

MEDICOLEGAL  OPINION:

Symptoms Consistent with Complaint:

It is my opinion your client's symptoms are consistent with the complaints he describes and the mechanism of injury described. Mr Gay is very open about his past history and ongoing problems and how severe they became following the most recent exacerbation whilst at work.

Attributability:

We acknowledge that Mr Gay had pre-existing degenerative problems prior to this most recent incident and many of the exacerbations have previously been related to work related activities, in particular the heaving lifting required of his employment as a furniture removalist.

(emphasis added).

  1. [142]
    It can be seen from the history taken by Dr Maguire that Mr Gay did refer to the filing cabinet event on 14 August 2014. Although the significance of that event as being one relied on in support of the s 132 application is not apparent from the history.
  1. [143]
    There is no attempt by Dr Maguire to express a view as to whether one particular event referred to by Mr Gay in the history he provided, caused the injury.
  1. [144]
    Relevantly, Dr Maguire considered the complete history provided by Mr Gay which included the history of moving the piano at the music festival, the filing cabinet incident and the presentation at the hospital after experiencing severe pain at home.
  1. [145]
    Dr Maguire refers to the "2014 injury period" when expressing his opinion. [62] I consider this period included the period of the music festival, the filing cabinet incident and the attendance at hospital on 23 August 2014 after experiencing pain at home. As Dr Maguire notes "[t]here have been multiple presentations since the "2014 injury period"." The opinion expressed by Dr Maguire takes Mr Gay's history into account and deals with the complicated history of the deterioration in the lumbar region of Mr Gay's back as a result of working as a furniture removalist for over thirty years. Relevantly, Dr Maguire records the history which includes events spanning from 28 July to 23 August 2014 and appears to deal with them together by referring to the "2014 injury period".
  1. [146]
    When expressing his opinion Dr Maguire refers to Mr Gay's symptoms as, "following the most recent exacerbation whilst at work." In the history taken, the most recent work exacerbation occurred on 14 August 2014, however, given his adoption of the phrase "2014 injury period", I consider it is open to conclude that Dr Maguire was referring to the period of 28 July 2014 to 23 August 2014.
  1. [147]
    I consider this to be consistent with the evidence of Mr Gay and his colleagues that he had ongoing back issues prior to July 2014, which would make him stiff and sore. It is also consistent with there being an incident on 11 August during which Mr Gay's back became sore and he rested on the job for a period before recommencing work on that day. Whilst this incident was recalled by Mr Gay's colleagues, they did not take any steps to formalise notification of the incident. Relevantly, I find they did not take Mr Gay back to the office and I further find that no incident report was completed following that incident.
  1. [148]
    After returning to work on 11 and 12 August, Mr Gay had a day off on 13 August 2014. On his return to work on 14 August 2014, the incident with the filing cabinet occurred. I consider that incident to have been more serious as Mr Gay did not keep working that day. Following the incident, Mr Gatcliffe drove Mr Gay back to the office and Mr Flynn came into work to complete the incident report for Mr Gay.
  1. [149]
    Mr Gay did not work for several more days but did return on 18 August 2014 and worked intermittently until 23 August 2014.
  1. [150]
    After working in the morning of 23 August 2014, an event occurred at Mr Gay's home causing significant pain to his back and he was taken to the hospital by ambulance.
  1. [151]
    I consider, using the words of Dr Maguire, that this history of events during the period 28 July 2014 to 23 August 2014 to be the the relevant "2014 injury period".
  1. [152]
    Dr Maguire does not specifically nominate any one of these events a being causative of the injury.
  1. [153]
    The closest Dr Maguire's report comes to nominating a cause of injury is when he expresses a view that Mr Gay was open about his past history and ongoing problems and how severe they became "following the most recent exacerbation while at work." From the history given by Mr Gay, the most recent exacerbation while at work occurred on 14 August 2014. Ultimately, I do not consider that Dr Maguire's report supports a conclusion that moving and lifting the pianos at the music festival between 28 July 2014 and 10 August 2014 was the causative event of the injury, so as to be a different injury than that claimed in the s 132 application for compensation.
  1. [154]
    It is evidenced from the above that Dr Maguire assessed one injury. There is no suggestion on the medical evidence that Mr Gay suffered separate injuries from each of the three separate events[63] encompassing the "2014 injury period."
  1. [155]
    To adopt the language of her honour Dalton J in Anderson, there is an artificiality of the exercise to attempt to separate the cause of one injury to the lower back into separate injuries based on separate events occurring within a period of time. I note relevantly, in this appeal Mr Gay only attempts to separate the two events of the music festival and the filing cabinet incident, presumably due to his assertion that they occurred whilst he was working.
  1. [156]
    I am satisfied that this view of the medical evidence is consistent with the Appellant's evidence. Mr Gay had a long history of back pain he says arising out of his employment as a furniture removalist. He had previously lodged, inter alia, claims relating to his lower back in 2013. He had time out off work because of this. He said he continued to experience pain and stiffness. He managed this by taking pain relief and utilising leave and taking time off to rest his back. Mr Gay's evidence was that his back deteriorated during the period of the music festival. It is relevant that during that period Mr Gay did not exclusively work at the music festival but continued to perform other jobs as a furniture removalist. On the final day of the music festival, the evidence was that Mr Gay felt pain whilst at work and rested for some time on the job but then resumed his duties that day, lifting lighter weights. Mr Gay worked the following day but says he stayed at home on 13 August 2014 in order to lie on the ground and rest his back. The following day Mr Gay attended work and experienced pain whilst lifting a filing cabinet. The response of Mr Gay and others implies that this incident was treated more seriously by him and his work colleagues as he was driven back to the office, an incident report was completed and he was told to stay at home and rest his back. On 18 August 2014, Mr Gay returned to work and worked intermittently until 23 August 2014. As noted already, Mr Gay experienced sharp pain at home and was taken to hospital by ambulance on 23 August 2014.
  1. [157]
    In the context of this history and the medical evidence, I consider that Mr Gay suffered one injury, as diagnosed by Dr Maguire, which he sustained during the 2014 injury period.
  1. [158]
    It follows that, I consider that the injury referred to in the s 132A application is for the same injury as the s 132 application for compensation. Consequently, s 132A(1) of the WCR Act is invoked and Mr Gay is not entitled to apply for assessment of DPI pursuant to s 132A of the WCR Act. 

Order

  1. [159]
    For the reasons set out above, I make the following order:
  1. The appeal is dismissed.
  2. Any application for the costs by the Regulator is to be served and filed in the Industrial Registry within 28 days of this decision.

Footnotes

[1] Gay v Workers' Compensation Regulator [2018] QIRC 25

[2] Gay v Workers' Compensation Regulator [2019] ICQ 011.

[3] Although Mr Gay contends that the reference to the date of 9 August 2014 was in error and the injury occurred on 14 August 2014.

[4] the s 132 application.

[5] the s 132A application.

[6] Respondent's submissions filed on 16 February 2021, [5].

[7] Although the Regulator did not ultimately call any witnesses.

[8] Transcript of proceedings T1-5 line 47; T1-6 line 12.

[9] [2021] QIRC 251.

[10] Introduced by the Workers' Compensation and Rehabilitation and other Legislation Amendment Act 2013 (Qld).

[11]  Explanatory Notes, Workers' Compensation and Rehabilitation and Other Legislative Amendment Bill 2013   (Qld), 4.

[12] Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2015 (Qld), which   commenced operation on 21 January 2015.

[13] Ibid.

[14] R v A2; R v Magennis; R v Vaziri (2019) 269 CLR 507, [32].

[15] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [78]; Lake City Freighters Pty Ltd v Goram & Gotch Limited [1985] HCA 48; 157 CLR 309, 436, 461.

[16] (2019) 269 CLR 507.

[17] [2017] HCA 34; (2017) 262 CLR 362 per Kiefel CJ, Nettle and Gordan JJ.

[18] Ibid [14].

[19] Workers' Compensation and Rehabilitation Act 2003 (Qld) s 237(1)(a)(i).

[20] [2018] 1 Qd R 390; [2018] QCA 127.

[21] Ibid [44].

[22] Respondent's submissions filed on 16 February 2021. 

[23] See ss 109, 180, 187, 188.

[24] Appellant's submissions filed on 23 February 2021, [13], [22]-[38].

[25] Appellant's submissions filed on 2 February 2021, [11]-[19].

[26] Exhibit 2, 41.

[27] Exhibit 3, 3.

[28] Exhibit 2, 1.

[29] Ibid.

[30] T1-2, 4-7.

[31] T1-14, 31; T1-15; 7.

[32] T1-34; 9-10.

[33] T1-30; 4-9.

[34] T1-58; 36.

[35] T1-57, 34.

[36] Exhibit 2.

[37] Exhibit 4.

[38] T1-44, 22-23.

[39] T1-24, 21-26.

[40] T1-27, 15-35.

[41] T1-30, 4-8.

[42] T1-75, 38-39.

[43] T1-88, 43; T1-89, 46.

[44] T1-71, 35.

[45] T1-71, 37-39.

[46] T1-74.

[47] T1-74, 38-39.

[48] T1-79, 22-37.

[49] T1-85,18-35.

[50] T1-90, 6-7.

[51] T1-31, 40-45.

[52] T1-34, 1-10. 

[53] T1-28, 4.

[54] T1-28, 6-8.

[55] T1-32, 39-45. 

[56] Exhibit 3, 79.

[57] Ibid, 80.

[58] Ibid, 94.

[59] Exhibit 5; Exhibit 6.

[60] Ibid. 

[61] Exhibit 5, 7.

[62] Exhibit 5, 8.

[63] The music festival, the filing cabinet incident, and the intense pain suffered at home on 23 August 2014.

Close

Editorial Notes

  • Published Case Name:

    Gay v Workers' Compensation Regulator

  • Shortened Case Name:

    Gay v Workers' Compensation Regulator

  • MNC:

    [2024] QIRC 141

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    31 May 2024

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
A Top Class Turf Pty Ltd v Parfitt[2019] 1 Qd R 390; [2018] QCA 127
1 citation
Jump To
Cite 1 - [2018] QCA 127
Andersen v Aged Care Employers Self Insurance [2011] QSC 101
1 citation
Jump To
Cite 1 - [2011] QSC 101
Dowd v Swift Australia Pty Ltd [2008] QCA 228
1 citation
Jump To
Cite 1 - [2008] QCA 228
Gay v Workers' Compensation Regulator [2018] QIRC 125
1 citation
Jump To
Cite 1 - [2018] QIRC 125
Gay v Workers' Compensation Regulator [2019] ICQ 11
2 citations
Jump To
Cite 1 - [2019] ICQ 11
Cite 2 - [2019] ICQ 11
In the termination of the Sunshine Coast Council Field-Based Employees Certified Agreement 2011 (No.2) [2018] QIRC 25
1 citation
Jump To
Cite 1 - [2018] QIRC 25
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48
2 citations
Jump To
Cite 1 - [1985] HCA 48
Cite 2 - [1985] HCA 48
Langridge v Workers' Compensation Regulator [2021] QIRC 251
2 citations
Jump To
Cite 1 - [2021] QIRC 251
Cite 2 - [2021] QIRC 251
Ley v Woolworths Limited [2013] QSC 59
1 citation
Jump To
Cite 1 - [2013] QSC 59
Otto v Mackay Sugar Ltd [2011] QSC 215
1 citation
Jump To
Cite 1 - [2011] QSC 215
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
R v A2 (2019) 269 CLR 507
3 citations
Jump To
Cite 1 - (2019) 269 CLR 507
Cite 2 - (2019) 269 CLR 507
Cite 3 - (2019) 269 CLR 507
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
2 citations
Jump To
Cite 1 - (2017) 262 CLR 362
Cite 2 - (2017) 262 CLR 362
Sztal v Minister for Immigration and Border Protection (2017) HCA 34
2 citations
Jump To
Cite 1 - (2017) HCA 34
Cite 2 - (2017) HCA 34

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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