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Granato v Workers' Compensation Regulator[2024] QIRC 162

Granato v Workers' Compensation Regulator[2024] QIRC 162

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Granato v Workers' Compensation Regulator [2024] QIRC 162

PARTIES:

Granato, Anthony

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2020/94

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

28 June 2024

HEARING DATE:

23 – 24 June 2021

15 July 2021 (Appellant's Closing Submissions)

2 August 2021 (Respondent's Closing Submissions)

MEMBER:

Knight IC

HEARD AT:

Brisbane

ORDERS:

  1. The appeal is dismissed;
  2. The decision of the Respondent dated 20 February 2018 is affirmed.
  3. 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 – ENTITLEMENT TO COMPENSATION – appeal against review decision of respondent – where appellant employed as a Window Assembler – appellant diagnosed with disc protrusion/degenerative lower back condition  – whether appellant suffered an aggravation of his personal injury which arose out of, or in the course of, his employment – whether employment was a significant contributing factor – appellant did not suffer an aggravation of his personal injury which arose out of, or in the course of, his employment – review decision of respondent confirmed

LEGISLATION:

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

CASES:

Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538

Alsco Pty Ltd v VICA Mircevic [2013] VSCA 229

Avis v WorkCover Queensland (2000) 165 QGIG 788

Burton v Workers Compensation Regulator [2021] QIRC 437

Commissioner of Police v David Rea [2008] NSWCA 199

Croning v Workers Compensation Board (1997) 156 QGIG 100

Davidson v Blackwood [2014] ICQ 008

Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190

Heald v Q-Comp (2004) 177 QGIG 769

Holtman v Sampson [1985] Qd.R 472

JBS Australia Pty Ltd v Q-COMP [2013] ICQ 13

Kavanagh v Commonwealth (1960) CLR 547

MacArthur v WorkCover Queensland (2001) 167 QGIG 100

Monroe Australia Pty Ltd v Campbell [1995] 65 SASR 16

Nilsson v Q-Comp (2008) 189 QGIG 523

Nutley v Workers' Compensation Regulator [2019] ICQ 002

Omanski v Q-Comp [2013] ICQ 7

Ramsay v Watson (1961) 108 CLR 643

Ribeiro v Workers' Compensation Regulator [2019] QIRC 203

Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262

Theiss Pty Ltd v Q-Comp [2010] ICQ 27

Wiechmann v Lovering and WorkCover Corporation [1992] 59 SASR 203

APPEARANCES:

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

Mr B. I. McMillian of Counsel directly instructed by the Respondent.

Reasons for Decision

  1. [1]
    Mr Anthony Granato is appealing a decision of the Workers Compensation Regulator ('the Regulator') dated 19 June 2020, which confirmed a decision of Workcover to reject Mr Granato's application for assessment for permanent impairment in accordance with sections 32 and 132A of the Workers' Compensation and Rehabilitation Act 2003 ('the Act').
  2. [2]
    In that decision, the Regulator concluded Mr Granato's degenerative condition to his lower back, said to have occurred over a period of time, was not an injury within the meaning of sections 32 and 132A of the Act.[1]
  3. [3]
    In these proceedings, Mr Granato submits he sustained his lower back injury over a period of time from 1 May 2016 to 7 July 2018. Specifically, an aggravation of his degenerative back, as a result of undertaking his work duties.[2] Mr Granato further contends that his employment was a significant contributing factor to the aggravation.[3]
  4. [4]
    The Regulator maintains that any aggravation of Mr Granato's personal injury did not arise out of his employment and that his employment was not a significant contributing factor in any aggravation of his degenerative back condition in the relevant period. The Regulator further submits that while it may be the case that Mr Granato experienced back pain while working during this period, his employment was merely the setting in which the pain occurred or the background to its occurrence.[4]
  5. [5]
    The issues for my determination are:
  1. did Mr Granato suffer an aggravation of his degenerative spinal injury over a period of time from 1 May 2016 to 7 July 2018, which arose out of, or in the course of, his employment? And
  2. if yes, was Mr Granato's employment a significant contributing factor in the aggravation of his degenerative lower back condition?
  1. [6]
    For the reasons that follow, I am not persuaded that:
  1. any aggravation of Mr Granato's degenerative lower back condition arose out of or in the course of his employment; and
  1. Mr Granato's employment was a significant contributing factor to any aggravation of his degenerative lower back condition.
  1. The work performed by Mr Granato in the period 1 May 2016 to 7 July 2018
  1. [7]
    Prior to working for Breezeway Australia Pty Ltd ('Breezeway'), Mr Granato was engaged in various roles where his duties included tiling, general maintenance and window fixing.[5]
  2. [8]
    When Mr Granato initially commenced employment with Breezeway in 2002, he was employed to undertake general labouring duties, however, it wasn't long before he became a window frame assembler.[6]
  3. [9]
    In the period between 1 May 2016 and 7 July 2018 when he resigned from his position,[7] Mr Granato's role as a window frame assembler included manual handling of window frames of varying shapes, sizes and weights. As part of his duties, Mr Granato was required to lift or manoeuvre window frames to and from a worktable where they would be assembled and then set aside for distribution.[8] During the proceedings, Mr Granato described his duties in the following way:

…Revealing – it's like – it's like you make a big frame, lift the frame up and drop it in the reveal and staple all around. Then have to flick it over [indistinct] and, you know [indistinct] your body weight sort of. That's – that’s what revealing is like. Just that you put a border around the – the louvre – the window frame.[9]

  1. [10]
    Although Mr Granato's Statement of Facts and Contentions listed five pre-packaged framing parts with varying depths, heights and weights that he was required to assemble, he conceded during cross-examination that he primarily worked with three systems,[10] namely:
  • The Easyscreen System;
  • The Innoscreen System; and
  • The SL2 System.
  1. [11]
    While it is uncontroversial that Mr Granato was required to lift the frames as they were being assembled, there is some dispute within the proceedings about the extent to which Mr Granato lifted heavier frames either on his own or with the assistance of other employees.[11]
  2. [12]
    Mr Granato's further evidence in relation to his work duties was that:
  • the larger frames could be between three to four metres long;[12]
  • he would lift the frames above shoulder level to drop them into the 'reveal';[13]
  • the heaviest frames he moved without support could weigh up to 40 kilograms;[14]
  • the frames were awkward to move around;[15]
  • the frames would be dragged along the floor;[16]
  • he would occasionally receive help from others to move the frames;[17]
  • he worked at a fast pace;[18]
  • the work involved him twisting his body;[19]
  • he struggled to move frames weighing 40 kilograms;[20] and
  • the heavy lifting was performed over four hours of the day.[21]
  1. [13]
    Mr Granato confirmed he did not lift frames over 80 kilograms on his own[22] and occasionally received assistance from other employees to lift frames that weighed greater than 40 kilograms.[23]
  2. [14]
    Mr Granato initially denied being provided with training about manual handling practices while he worked at Breezeway. His evidence was that there were no policies, rules or directives setting out how many people were required to lift a frame, having regard to its weight.[24]
  3. [15]
    However, in cross-examination Mr Granato accepted he had participated in a safe work induction in 2013[25] and attended several toolbox sessions about safety measures on 22 February 2017, 23 May 2017, 30 June 2017, and 13 October 2017.[26]
  4. [16]
    Certainly, Exhibit 10 in the proceedings includes a series of forms recording employee attendance at toolbox meetings and accompanying information about ergonomics and safe lifting practices. These materials were attached to toolbox meeting attendance records, which captured Mr Granato's attendance and signature at the time of the safety meetings.
  5. [17]
    Mr Granato was critical of the toolbox talks and the way safety information was conveyed to employees during those sessions.[27] His evidence in relation to policies or materials that were provided to him during the course of his employment at Breezeway, was:

… so they never explained things properly, you know. They used to shove you a bit of paper in front of you, two minutes, you know, and just fill up things quick as – just hand it in.[28]

  1. [18]
    There were no other relevant training or induction materials containing information about lifting practices tendered during the proceedings, other than a Safe Work Instruction[29] for Glass Lifting and Handling Limits.
  2. [19]
    The stated purpose of this guide was to establish acceptable lifting ratios having regard to the sizes and weight of products. The guide included tables identifying circumstances where single, two person, mechanical or multi-person lifts should occur for product types depending on the width, height and calculated weight of the item.[30]
  3. [20]
    Within the guide, employees were directed to seek assistance in any situation where they were unsure of their ability to safely lift a piece of glass, mirror or any other product material.[31]
  4. [21]
    With an issue date of May 2018 and a version number of 4.1,[32] it is not clear on the evidence, whether Mr Granato was provided with a copy of the Safe Work Instruction or had access to an earlier version of the guide. However, Mr Harrison, an Operations Manager with Breezeway from November 2018 confirmed the Safe Work Instruction was in place prior to his appointment. His evidence was that the Safe Work Instruction sets out acceptable limits for single and multi-person lifts had been in place for quite some time.[33]
  5. [22]
    Mr Eugene Pearce, a current employee of Breezeway and team leader within the Surround Frames team where Mr Granato was engaged before he resigned, confirmed he had known Mr Granato, in a work sense, for approximately 10 years.[34]
  6. [23]
    Mr Pearce's evidence was that the Surround Frames team had responsibility for assembling the Easyscreen, the SL2 and the Innoscreen frames.[35] In the period between May 2016 and July 2018, he stated that the heaviest frames, once assembled, would weigh 60 kilograms. According to Mr Pearce, the heavier frames were required to be lifted by two workers.[36]
  7. [24]
    Mr Pearce confirmed that the way workers knew when two people were required to lift a frame was by observing the size of the frame.[37] His evidence was that if a worker was not physically capable of lifting a frame, they would ask for assistance.[38] Mr Pearce stated he lifted most of the heavier frames with the assistance of another employee.[39] He explained that he would provide workers with instructions on how to lift the frames, but he confirmed he did not give any instructions or directions to Mr Granato in circumstances where Mr Pearce had commenced at Breezeway after Mr Granato.[40]
  8. [25]
    Mr Pearce disagreed with the proposition that Mr Granato was lifting window frames that weighed between 40 to 50 kilograms, on his own.[41] His evidence was that he did not observe Mr Granato struggling with either his balance or his walking.[42]
  1. Mr Granato's evidence about the onset back pain and attribution of work duties to the aggravation of his degenerative back condition
  1. [26]
    Mr Granato told the Commission he resigned in mid-2018, noting he was "in pain. I had to just leave".[43] He recalled his supervisor, Mr Avi Lenieu had started to comment about his work performance around 2016.[44] His evidence was that his supervisor held the view he was not working fast enough.[45]
  2. [27]
    During examination-in-chief Mr Granato responded to a question posed by Dr Cross about the timeframe within which he first experienced back pain in the following way:

Now you started there in 2002 and it's not in issue that you attended upon a GP in, I think it was, May 2006, with back pain, Dr Perera, I think it was? --- Yeah.

And Dr Perera was at the – I think it was at the Edens Landing? --- That's right.

Now, in the period 2002 to 2016, do you remember suffering back pain at all? --- Nothing like that. No.

Nothing like what? --- Got – no.

Sorry? --- No back – no.

Any niggles or strains? --- Not that I know. I had no problem then.

You didn't miss any work – do you remember missing any work with back problems? --- Not for that – not for that reason.[46]

  1. [28]
    Mr Granato's evidence in relation to his back pain was that he recalled being at work, "lifting – making – assembling frame and revealing".[47] In response to a question about whether it was a sudden pain or had come on during the day he said:

Suddenly pain come – come during the day. You know, it happens.[48]

  1. [29]
    Mr Granato explained that his pain would ease when he went home and he would take painkillers provided to him by his doctor.[49] His initial evidence to the Commission was that the pain started around April or May 2016 and that over time his left leg gradually became weaker, and he felt a numbness in his feet.[50]
  2. [30]
    Mr Granato's further evidence in relation to his back pain was:
  • He was advised by his specialist that the problem with his back was a "worn out disc";[51]
  • The pain gradually worsened;[52]
  • He wanted to find out what was causing the loss of balance in his leg;[53]
  • He experienced weakness in his leg in 2017;[54]
  • He could barely walk in 2017;[55] and
  • He did not want to tell anyone about his pain because he was worried he would lose his job.[56]
  1. [31]
    In cross-examination, Mr Granato stated that he did not experience back pain prior to July 2016.[57] This account was at odds with earlier evidence where he stated the pain first arose in April or May 2016 and other evidence during the proceedings where he purportedly reported to other specialists that he had experienced back pain, albeit manageable, in the past.
  2. [32]
    During cross-examination, Mr Granato confirmed that:
  • The pain he experienced around Easter 2016 was 'small';[58]
  • He could not recall experiencing pain during Easter 2016;[59]
  • He recalled pain radiating down his left leg;[60]
  • The pain in his leg became worse in 2017;[61] and
  • He recalled that his supervisor, Mr Lenieu asked him why he was limping and he said, "I don't know what's wrong".[62]
  1. [33]
    Mr Granato was unwilling to accept in cross-examination that he had previously experienced sciatica in 2009.[63]
  2. [34]
    Exhibit 14 within the proceedings included a sick leave application form completed and signed by Mr Granato for the period 14 April 2009 until 21 April 2009. Exhibit 8 within the proceedings was a letter prepared by Ms Robyn Ehmen, a naturopath from Miller's Naturopathic Herbal Clinic advising:

14th April 2009

To whom it may concern

Mr Tony Granato is a patient of this Clinic. He has given his permission for me to inform you that he is being given physical treatment for severe sciatic pain.

In order for Mr Granato to make a full recovery he needs to rest from 14th April until 20th April.

Yours sincerely,

Robyn Ehmen N.D Medical Herbalist.

  1. [35]
    During cross-examination Mr Granato responded to Mr McMillan's questions about the sick leave application of 14 April 2009 and Ms Ehmen's letter of 14 April 2009 in the following way:

And that's – that means, doesn't it, that you had sciatica in 2009, first of all, and that it was bad enough that you needed five days off work? --- Well, I don't know if I had sciatica or whatever [indistinct] 2009 because I was working from there up to 10 – for another 10 years, so I'd – so I must have been all right, then, wouldn't it?

When you look at these two documents together, Mr Granato, accepting that you don't have a memory of submitting them to the work – to Breezeway, you must accept, mustn't you, that that demonstrates that you had sciatica in 2009 and you needed time off - - -? --- Nup.

- - - and you needed time off work for it? --- No, that what - - -

You don't accept that? --- No.[64]

  1. Medical evidence
  1. Dr Perera – General Practitioner
  1. [36]
    Dr Perera was unable to independently recall her consultations with Mr Granato and relied on medical records that included notes about his appointments. Dr Perera initially saw Mr Granato at the Bethania Family Practice in respect of complaints about his back pain on 3 May 2016 and later at the Qualitas Brisbane Medical Centre on 15 August 2017, 5 September 2017, 31 October 2017, 20 December 2017, 21 December 2017, 19 March 2018, 8 May 2018 and 12 June 2018.[65]
  2. [37]
    Dr Perera referred Mr Granato for an MRI scan on 3 May 2016.[66]
  3. [38]
    In a report dated 10 May 2016, a radiologist noted a history of back pain for many months with numbness in the left leg, concluding:

… [Disc] degeneration at L4/5 and L5/S1. The central disc protrusion at L5/S1 compromises the emerging left S1 nerve root. There is also indentation of the emerging L5 nerve roots at L4/5.[67]

  1. [39]
    Mr Granato attended Dr Perera's rooms for a review appointment on 13 May 2016. Under the heading 'Reason for Visit', Dr Perera noted:

Reason for Visit:

Degenerative lumbar disc disease[68]

  1. [40]
    Dr Perera referred Mr Granato for a further MRI scan in October 2017. In a report dated 11 November 2017, the radiologist concluded:

Comment: Moderate central canal stenosis at L4/5 disc level caused by large central posterior disc protrusion with crowding of the nerve roots within the thecal sac. The appearance is similar to prior MRI. Focal central disc protrusion at L5/S1 contacting the forming left S1 nerve root in the subarticular recess.[69]

  1. [41]
    Other than on one occasion in a consultation between Mr Granato and Dr Perera on 12 June 2018, it is not in dispute that there is no record of either he or Dr Perera connecting his back pain with his work duties. On that occasion, the consultation notes for Mr Granato's appointment recorded:

Tuesday June 12 2018  14:56:32

Dr Krishani Perera

Visit type:

Surgery Consultation

History:

on BP medication.

Back pain and poor sleep,

pain has got better when not working.

snoring at night.

Has done the sleep study, but has not followed up it [sic] properlly

Examination:

General:

BP (Sitting): 190/84

Pulse (sitting): 67

Reason for contact:

Back pain[70]

  1. [42]
    In a memorandum signed on 9 June 2021, recording the details of a  telephone conference with Dr Perera, in response to queries about Mr Granato's medical records and her opinion as to the cause of Mr Granato's back pain, she observed:
  • "it's not mentioned whether its work related or not so it could be either";[71]
  • Mr Granato had back pain for two years as of 15 August 2017 and he was mostly complaining of the same symptoms;[72]
  • "if Mr Granato continued working it [would have] aggravated the back pain";[73] and
  • "It would not be surprising that that [the lifting of 80 kilograms weights between two people] could cause a degenerative back condition to become symptomatic."[74]
  1. [43]
    In cross-examination, Dr Perera confirmed the sole basis for her conclusion that Mr Granato's work duties aggravated his back pain was his comment to her on 12 June 2018 that his pain improved when he was not working.[75]
  1. Dr Todman – Neurologist
  1. [44]
    Dr Todman's evidence in his report dated 1 October 2019,[76] was that as a result of undertaking work that involved the assembly of windows and window frames in the period 20 June 2017 to 7 July 2018, Mr Granato had aggravated his back condition.[77]
  2. [45]
    While the report acknowledged Mr Granato had pre-existing lower back symptoms before this time, Dr Todman concluded the symptoms increased around July 2016, whereafter he experienced left sciatica and numbness in his left leg, which was related to a lumbar disc protrusion at L5/S1.[78]
  3. [46]
    Dr Todman's evidence was that:
  • The heavy, physical duties undertaken by Mr Granato at work were the main cause of his back pain and subsequent condition;[79]
  • It was likely the disc protrusion was the reason for the numbness and referred pain;[80] and
  • The activities he undertook at work placed a strain on Mr Granato's back.[81]
  1. [47]
    Dr Todman's opinion as set out in a memorandum signed by him on 9 June 2021, in regard to Mr Granato lifting weights of 40 kilograms or a two person lift of 80 kilograms, was that it was probable that the work-related activities caused a disc protrusion. He observed that although Mr Granato complained of back pain prior to 2016 it was manageable until something happened in 2016 that changed things.[82]
  2. [48]
    In cross-examination, Dr Todman confirmed Mr Granato had advised him of a long history of manageable back pain prior to July 2016, which led him to conclude the back pain had been present for years preceding 2016.[83]
  3. [49]
    In response to a question as to whether he was able to determine when the disc protrusion in Mr Granato's back occurred, Dr Todman confirmed it was not possible to glean that information from the MRI reports and that he had instead relied on the history of symptoms reported by Mr Granato.[84] Moreover, he confirmed there was no significant change to the pathology between the time when the first and second MRI scans were undertaken.[85]
  1. Dr Labrom – Orthopaedic Spinal Surgeon
  1. [50]
    Dr Labrom's evidence within his reports dated 21 January 2020[86] and 18 February 2020[87] was that:
  • Mr Granato acknowledged a history of back pain and sciatic symptoms prior to 26 July 2016.[88]
  • Mr Granato's workplace activities between 26 July 2016 and 7 July 2018 should not be seen as a significant contributing factor to his condition.[89]
  • While Mr Granato's work activities may have resulted in temporary periods of exacerbation or discomfort, the [chronic changes of degenerative disc bulging and facet arthropathy] are constitutional, degenerative and not in any clear way related to the work activities.[90]
  • Mr Granato's condition should be viewed as a long-term chronic degenerative pathology affecting the lumbar spine in a widespread fashion.[91]
  1. [51]
    In a second report,[92] clarifying an earlier response to a question as to whether Mr Granato's work duties were a significant contributing factor to any injury, Dr Labrom opined:

… although Mr Granato's degenerative back may have become painful at work between 26 July 2016 and 7 July 2018, on the balance of probabilities, it has not caused any temporary nor permanent pathology. Rather, I would suggest that the activity between these dates mentioned may have resulted in a temporary period of pain or discomfort between those dates mentioned.[93]

  1. [52]
    In response to a request from the Commission for a simpler explanation of degenerative disc bulging and facet arthropathy and how the conditions arise, Dr Lebrom stated:

… so on the MRI scans [indistinct] which was the – the May '16 and the November '17 studies, he has very clear evidence of collapsing segmental discs. So between every vertebral body there's a shock absorber disc, and over time some people see significant dehydration and degenerate changes of those discs. Mr Granato has a very typical pattern of disc degeneration and associated osteoarthritis affecting the facet joints or the small joints of the lower back, and so those – that – that bulging of the discs can become a problem with compression of the nerves that pass by and the spinal cord that passes by. So he's got a very typical pattern of degenerate change which, you know, I see a lot of in my practice.[94]

  1. [53]
    And then:

… But the pattern of multi-segment bulging that we're talking about for Mr Granato is, if you like, the typical, you know, older person's back who has moved through middle age into older life becoming more and more stiff, more uncomfortable and correlated with other comorbid issues such as, you know, poor muscle control, poor aerobic fitness and obesity leaves people with all sorts of back pain and stiffness and discomfort with most aspects of their daily living. And, for better or for worse, I see those sorts of people all week. So it's a – it's a common condition.[95]

  1. [54]
    In cross-examination, in response to suggestions that Mr Granato's work activities led to his underlying back degeneration becoming symptomatic or painful sooner than would have otherwise occurred, Dr Labrom's evidence was that:
  • Mr Granato would have experienced pain that would have fluctuated with all of those work activities in the period between July 2016 and July 2018;[96]
  • Mr Granato would have had significant symptoms predating that time;[97] and
  • the work duties were a contributing factor to the pain, but he was not sure they were a significant factor.[98]
  1. [55]
    Dr Labrom confirmed he had been unable to observe any evidence of structural change within the MRIs of Mr Granato's back in the period May 2016 through to July 2018.[99] He was not prepared to accept Mr Granato's work activities had led to the claimed injury, stating:

… I can't feel confident that's the case. And it's based on the logic that this activity at work has been performed for many years proceeding and I cannot see a significant factor in changing – in a change, in that sense, at that particular moment, let's say April '16 as you've proposed, and the only thing that has changed is a -a-a- chronologically aging spine in a person who has markedly degenerate processes occurring over multiple levels.[100]

  1. [56]
    And later:

I think this has been a gradual degradation of pathology in this person's spinal column over decades -over decades preceding this over a period of time claim, and I think moreover, there is some evidence to suggest this person has even sought attention as early as 2009.[101]

  1. The parties' submissions
  1. Mr Granato
  1. [57]
    Mr Granato submits his lumbar spine condition was aggravated in the course of undertaking his work duties, which were the significant contributing factor in the onset of his injury.[102]
  2. [58]
    While his representatives acknowledged that it was more probable than not that the correspondence from the Millers Naturopathic Herbal Clinic[103] was in reference to earlier back pain, it is argued there is no evidence the back pain continued. Further, that in the period 16 March 2010 to 12 March 2016, despite many consultations at a medical centre Mr Granato regularly visited, none of the appointments related to back pain.[104]
  3. [59]
    It is also argued that Mr Granato was provided with very limited training in manual handling in an environment where the system of work was unsafe.[105]
  4. [60]
    Mr Granato relies on Dr Todman's view that the main cause of Mr Granato's back pain was the heavy physical activities he undertook at work,[106] which placed a strain on his back and aggravated his existing spinal condition.[107]
  1. The Regulator
  1. [61]
    Although the Regulator accepts Mr Granato's work involved heavy and sometimes awkward manual handling, it maintains the evidence does not support a connection between the work that was performed and any aggravation of Mr Granato's back injury in the period between 1 May 2016 and 7 July 2018. It is submitted the evidence, instead, supports a conclusion that any back pain Mr Granato experienced proceeded the period of injury pleaded in his amended statement of facts and contentions, and that his employment was merely the setting in which the pain occurred.[108]
  2. [62]
    Other than Mr Granato's views about the onset of the pain, it is argued there is no evidentiary correlation between the work activities undertaken by Mr Granato and the aggravation of his back condition.[109]
  1. [63]
    It is further submitted that Mr Granato is not a reliable witness because:
  • he was unable to recall with any particularity his consultations with Dr Perera or any other specialists;[110]
  • his assertions that he told Dr Perera that his work duties contributed to the onset of his back pain are not supported by the independent medical records;[111]
  • his assertions about presenting with a limp at work were not supported by either Mr Lenieu or Mr Pearce;[112] and
  • his own evidence about the onset of his back pain was inconsistent.[113]
  1. [64]
    The Regulator maintains the best evidence of Mr Granato reporting his back pain symptoms are the contemporaneous medical records,[114] which are consistent with the longitudinal history of pain reported to Dr Todman and Dr Labrom.[115]
  2. [65]
    It is argued that the objective evidence supports a conclusion that Mr Granato's back pain started as early as 2009 when he presented to his naturopath for 'severe sciatica', requiring five days off on sick leave. Moreover, Dr Todman confirmed that Mr Granato's back pain, while manageable had preceded his visit to Dr Perera in 2016 for several years. Similarly, Dr Labrom's evidence was that he wouldn't be surprised if Mr Granato had not complained of back pain before Easter 2016.[116]
  1. Did the aggravation of Mr Granato's lower back injury arise out of, or in the course of, his employment?
  1. [66]
    The determination of this matter requires an assessment of the nature of the work performed by Mr Granato having regard to the work environment and period in which it is claimed the injury arose and the circumstances that are said to have led to the onset of any injury.
  2. [67]
    It is also essential to consider the medical evidence, including medical opinions as to whether an aggravation of Mr Granato's back injury could have arisen out of, or in the course of employment and whether his employment was a significant contributing factor to that injury in the period between 1 May 2016 to 7 July 2018.
  1. Relevant Principles
  1. [68]
    In Burton v Workers Compensation Regulator,[117] his Honour, Deputy President Merrell helpfully set out several principles that are relevant in the determination of this matter.
  2. [69]
    Firstly, in respect of a claim of an aggravation of an injury:
  1. [142]
    In terms of the claim of an aggravation of an injury, there is no distinction between an 'exacerbation' and 'aggravation' of an injury. A degenerative condition may be aggravated in the sense that it may be made worse; that is, after the aggravation, the degenerative disorder is worse than it was before. There can also be an aggravation in the sense of an increase of symptoms associated with a degenerative condition which, after the cessation of the symptoms, returns to its pre-aggravation state. An aggravation, in both these senses, is compensable.[118]
  1. [70]
    Secondly, when determining whether an injury arises out of or in the course of employment:
  1. [141]
    An injury which arises out of employment occurs where there is a causal connection between the employment and the injury. Although the phrase 'arising out of' does not require the direct or proximate relationship which would be necessary if the phrase used was 'caused by', there must be some causal or consequential relationship between the worker's employment and the injury. An injury 'in the course of employment' means an injury sustained while the worker is engaged in the work which is part of the worker's employment but is also something which is incidental to his or her service.[119]
  1. [71]
    Thirdly, in relation to establishing whether the common law test of 'balance of probabilities' is satisfied:
  1. [143]
    The common law test of balance of probabilities is not satisfied by evidence which fails to do more than just establish possibility. In Seltsam Pty Ltd v McGuiness, Spigelman CJ relevantly stated:
  1. 79
    Evidence of possibility, including expert evidence of possibility expressed in opinion form and evidence of possibility from epidemiological research or other statistical indicators, is admissible and must be weighed in the balance with other factors, when determining whether or not, on the balance of probabilities, an inference of causation in a specific case could or should be drawn. Where, however, the whole of the evidence does not rise above the level of possibility, either alone or cumulatively, such an inference is not open to be drawn.[120]
  1. [72]
    Within the evidence there are competing medical opinions as to whether there is a causal connection between an aggravation of Mr Granato's degenerative back condition and his employment.
  2. [73]
    In Ribeiro v Workers' Compensation Regulator,[121] DP Merrell has summarised some established processes when resolving this issue, namely:

The relevant principles

  1. [43]
    The primary duty of a tribunal is to find ultimate facts, and so far as is reasonably possible to do so, to look not merely to the expertise of the expert witnesses, but to examine the substance of the opinion expressed; and in doing so, the tribunal may not accept the opinion of an expert witness, and in cases where the experts differ, the tribunal will apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted.
  1. [44]
    A qualified medical practitioner may, as an expert, express an opinion as to the nature and cause, or probable cause of an injury, but it is for the tribunal to weigh and determine the probabilities, and in doing so, the tribunal may be assisted by the medical evidence; however, that task is for the tribunal not the witnesses and the tribunal must ask itself whether, on the whole of the evidence, it is satisfied on the balance of probabilities of the fact.
  1. [45]
    A medical doctor's appreciation of the legal aspects of a case, if relevant, is of no probative value.
  1. [46]
    Whether a worker has suffered an injury within the meaning of the Act is a question of fact which is not necessarily resolved by acceptance or rejection of medical testimony. Thus, the tribunal may consider the medical evidence and by a course of reasoning which, combined with common sense and the application of logic to physiological facts infer, on the balance of probabilities, a causal connection with an injury.
  1. [47]
    A finding of a causal connection may be open even if there is no medical evidence to support it.
  1. [48]
    Where medical science is prepared to say it is possible there is such a causal connection, then the tribunal, after examining the lay evidence, may decide that it is probable there is such a connection.
  1. [49]
    It is only where the medical evidence denies any causal connection between an event and an injury, that a tribunal cannot act on its own intuitive reasoning as if there was such a connection.
  1. [50]
    In resolving disputes between experts, it is simply not a matter of adding up the witnesses on each side or by the mere perusal of a variety of documentary medical reports.
  1. [51]
    When faced with competing opinions, which are both supported by sound reasoning, the tribunal’s function is to decide the issue at hand and that may require the tribunal to accept one opinion over the other, and in doing so the tribunal would not normally substitute its opinion on the medical diagnosis for that of the experts and give scientific medical reasons for doing so; the tribunal's persuasion to prefer one opinion over another may well be based on factors such as that the expert's opinion was tested under cross examination, or that the opinion was given by a person eminent in his or her field, or that the opinion was supported by clinical observations.
  1. [52]
    Other guiding considerations include the expert's qualifications, impressiveness and cogency of reasoning and exposition (not always a decisive ground), preparation for and application to the problem in hand, and the extent to which the witness had a correct grasp of the basic, objective facts relevant to the problem.
  1. [53]
    If the factual underpinning of the report is disturbed by, for example, the rejection by the tribunal of parts of that underpinning, then it follows that the report itself is weakened to that extent.[122]
  1. Consideration – work duties performed by Mr Granato in the relevant period
  1. [74]
    The Regulator acknowledges Mr Granato's work at Breezeway involved manual handling of window frames of varying weights, which were sometimes awkward to move given their shape and size.
  2. [75]
    Mr Granato was required to lift these frames to and from a worktable and manually manipulate the frames during assembly.
  3. [76]
    Having regard to the evidence, I accept that the shape and size of the larger frames meant that moving and assembling the frames would have required Mr Granato to twist his body left and right and lift the frames multiple times a day.
  4. [77]
    I am satisfied there would have been occasions where the frames extended above shoulder height while being moved. I also accept that on occasion Mr Granato may have dragged  the frames across the floor of the factory when being transferred for distribution, particularly if he did not seek assistance from other workers.
  5. [78]
    Mr Granato's evidence was that he was required to lift frames weighing up to 40 kilograms on his own, whereas Mr Pearce's evidence was that the heaviest window frame that workers would be required to lift or move once assembled was 60 kilograms and that two workers were required to lift these frames.[123]
  6. [79]
    Mr Harrison was unable to say what the exact weight of the largest frame may have been, but accepted there would be some frames that weighed up to 80 kilograms without glass.[124] He explained that three or four people would be involved in lifting a frame of that size.[125] Further, that the business did not allow anyone to lift a frame on their own that weighed more than 35 kilograms.[126]
  7. [80]
    In considering the evidence about the number of frame systems Mr Granato assembled and the maximum weight of a frame an employee was permitted to lift within the surround frames assembly area, I prefer the evidence of Mr Pearce, who presented as an honest and reliable witness.
  8. [81]
    Mr Pearce confirmed Mr Granato primarily worked on three frame systems instead of the five listed in his statement of facts and contentions. In any event, I note that in cross-examination Mr Granato essentially conceded this was the case.
  9. [82]
    I am satisfied that the surround frames assembly area may well have assembled frames on occasion that weighed up to 80 kilograms. However, having regard to Mr Pearce and Mr Harrison's evidence I accept that where this occurred employees were required to engage in two person or multi-person lifts where the frames exceeded 35 kilograms.[127]
  10. [83]
    Mr Pearce's evidence in relation to how employees became aware of the weight of the frames was that a cutting sheet was attached to the frame systems which recorded the actual size and weight of the frame, along with a pick list which recorded the type of system for dispatch purposes.[128]
  11. [84]
    Mr Granato's evidence was that in the period he was working at Breezeway, it was not possible to discern the weight from the slips of paper attached to the frames, whereas Mr Pearce was confident the cutting sheet recorded the individual weights of the frames. He confirmed the sheets were used in the factory in the period from 2016 to 2018.
  12. [85]
    Mr Pearce stated that workers could determine whether they could lift a frame having regard to the size of the frame. Where they could not physically lift a frame, they would ask for assistance.[129]
  13. [86]
    While the evidence before the Commission in respect of the processes and policies that were in place to communicate expectations to employees about the lifting of frames could have been more comprehensive, on balance I am satisfied that Mr Granato, having worked as an assembler at Breezeway for more than a decade, where he primarily worked with three framing systems in the relevant period, would have possessed  a reasonable grasp of the weights of the frames and the circumstances where he was expected to enlist the support of other workers to help move the frames once they had been assembled. In this respect, I do not accept he was required by his employer to move frames weighing 40 kilograms on his own.
  14. [87]
    That is not to say, however, that on occasion when he was assembling larger frames the work undertaken by Mr Granato was not challenging, awkward or physical.
  15. [88]
    In this respect, Mr Granato initially stated in his evidence that he did not receive training about manual handling while he worked at Breezeway. Moreover, he considered there were limited policies, rules or directives setting out how employees were required to lift a frame, having regard to its weight.
  16. [89]
    However, the materials before the Commission, including records of toolbox meetings and manual handling training notes tendered by the Regulator demonstrate that during the relevant period, training was provided to Breezeway employees, including Mr Granato, in respect of safety and manual handling processes. Similarly, I accept Breezeway had an established Safe Work Instruction within the workplace which contained detailed instructions in respect of the safe lifting of glass and other products. In this respect I accept Mr Granato would, more likely than not, have possessed a reasonable understanding of the acceptable weights and circumstances where a multi-person lift of a frame was required.
  1. Consideration – the reporting of the onset of pain and the connection with Mr Granato's work activities
  1. [90]
    Mr Granato maintains he first experienced pain while he was at work. However, in his evidence, he was unable to identify the particular activities he was undertaking at the time or the date when he became aware of the pain, other than to say that he was lifting frames and twisting and turning when the pain came on around April or May 2016.[130] He explained that his condition worsened over time, and he experienced increasing pain and numbness in his left leg in 2017.[131]
  2. [91]
    The Regulator submits Mr Granato's evidence of when his back pain began is inconsistent and unreliable[132] for several reasons, including:
  • Initially he reported the onset of symptoms in July 2016, with the Form 132A recording the period of time over which the injury arose commencing as at 26 July 2016;[133]
  • During the proceedings he changed his position and said the pain commenced around Easter 2016, which was at the end of March of that year;[134]
  • He was not working over the Easter period in 2016, whereafter he claimed the pain began;[135] and
  • He was unable to identify a specific date when the pain commenced in his evidence, despite earlier confirming the pain commenced on 26 July 2016.[136]
  1. [92]
    It is further submitted that Mr Granato's assertion that he told Dr Perera about work contributing to his back pain is entirely unsupported by the independent medical records.[137]
  2. [93]
    Certainly, other than on one occasion when Mr Granato attended an appointment with Dr Perera on 12 June 2018, it is correct that there is no record of either he or Dr Perera connecting his back pain with his work duties. Even then, on that occasion, the consultation notes for Mr Granato's appointment recorded:

Tuesday June 12 2018  14:56:32

Dr Krishani Perera

Visit type:

Surgery Consultation

History:

on BP medication.

back pain and poor sleep,

pain has got better when not working.

snoring at night.

has done the sleep study, but has not followed up it [sic] properlly[138]

  1. [94]
    Having reviewed the evidence in relation to the onset of Mr Granato's pain, his views about the reason for the pain and his recollection of any history of pain prior to the relevant period, I have concluded that his evidence is not particularly persuasive both in respect of the period when his pain initially arose and the link between his symptoms and the performance of his work.
  2. [95]
    Relevantly, Dr Todman confirmed Mr Granato told him he had a long history of manageable back pain prior to July 2016. His impression of Mr Granato was that his pain had been present for years prior to July 2016.[139] Similarly, under the heading 'History' in his first report, Dr Labrom notes that "Mr Granato does acknowledge a prior history of back pain and some sciatica before 26 July 2016."[140]
  3. [96]
    While I acknowledge the submissions of Mr Granato's representatives that he was not a particularly sophisticated witness, during the proceedings he struggled to articulate, in a credible way when or how his back pain arose. He was also unwilling to concede that he had experienced sciatica in the past, albeit many years earlier, despite clear evidence to the contrary.
  4. [97]
    On balance, having considered Mr Granato's evidence in respect of when and where his back pain first arose, in addition to the evidence of Dr Perera, Dr Todman and Dr Lebrom in respect of Mr Granato's account of the pain and its origins, I have formed the view that his evidence in respect of both of these issues, is not reliable in determining whether an aggravation of his degenerative back condition occurred in the relevant period. This is significant when assessing whether there is a causal connection between the aggravation of his lower back condition and the performance of his duties.
  1. Consideration – Evidence of the specialists
  1. [98]
    As touched on earlier, when faced with competing medical opinions as to whether work was a significant contributing factor in the onset of an injury, which is the case in these proceedings, the Commission's determination may require the acceptance of one opinion over another.
  2. [99]
    While I accept that Mr Granato experienced pain in the period 1 May 2016 to 7 July 2018 while performing his work duties, I am not persuaded the evidence of either Dr Perera or Dr Todman supports a conclusion, on the balance of probabilities, that there is a causal connection with any aggravation of his degenerative back condition.
  3. [100]
    In a memorandum signed on 11 June 2021, Dr Perera observed "it would not be surprising that that [the lifting of up to 80 kilograms between two people] could cause a degenerative back condition to become symptomatic."[141]
  4. [101]
    The difficulty with this opinion is that other than a brief reference as late as June 2018 within Mr Granato's medical records of his pain subsiding when not working, there is no mention within the contemporaneous notes recorded at the time of the consultation with Dr Perrera about the nature of Mr Granato's work duties or how they may have contributed to his back pain.
  5. [102]
    Separately, although it is true there is no record of Mr Granato complaining about back pain within the notes taken during his appointments with Dr Perera before 3 May 2016, several references within the specialist medical reports, the MRI reports and correspondence from a naturopath suggest Mr Granato was experiencing back pain anywhere between several months to years prior to May 2016.
  6. [103]
    Dr Todman opined that Mr Granato sustained an injury to his back when assembling window frames. He held the view that the work duties being undertaken by Mr Granato, on the balance of probabilities, led to a disc protrusion.[142]
  7. [104]
    In a separate memorandum dated 9 June 2021,[143] Dr Todman expressed the opinion that the disc protrusion reported in the MRI report correlated with the development of back pain and left leg pain.
  8. [105]
    One of the challenges with Dr Todman's opinion is that in his evidence he agreed there was no significant change noted in the two MRI reports concerning Mr Granato's spine, firstly in May 2016[144] and then later in November 2017.[145] Similarly, Dr Labrom confirmed he had not observed any evidence of structural change within the MRIs taken of Mr Granato's spine in the period May 2016 through to July 2018.[146]
  9. [106]
    Having not directly viewed the MRI scans,[147] Dr Todman conceded he was unable to confirm when the disc protrusion in Mr Granato's spine occurred. Instead, Dr Todman based his conclusions on Mr Granato's own account of the onset of pain and other symptoms, which in my view is not particularly helpful given my findings around the uncertainty that exists in respect of when Mr Granato's lower back pain commenced and how this may have been connected to his work duties.
  10. [107]
    For Mr Granato to succeed in this matter, it is necessary for him to prove on the balance of probabilities that his aggravated lower back condition arose as a result of his work duties in the period 1 May 2016 to 7 July 2018. He does not prove his case merely by showing that it was possible that the aggravation arose out of or in the course of carrying out his duties.[148]
  11. [108]
    While I accept, having regard to the evidence of Mr Granato, Dr Perera and Dr Todman, that Mr Granato's employment may have resulted in temporary pain during the relevant period, their evidence is not enough to persuade me, on the balance of probabilities, that there is a causal connection between Mr Granato's employment and any aggravation of his lower back condition.
  12. [109]
    Instead, I consider Dr Labrom's evidence to be more persuasive.
  13. [110]
    While Dr Labrom accepted that Mr Granato was performing significant manoeuvres when assembling frames, he considered that the workplace activities undertaken by Mr Granato in the relevant period should not be seen as a significant contributing factor in the onset of his condition.[149]
  14. [111]
    Dr Labrom clarified that although Mr Granato's degenerative back may have become painful at work, it had not caused any temporary or permanent pathology.[150]
  15. [112]
    When asked about the fluctuations in pain reported by Mr Granato, Dr Labrom said:

… any person with an amount of pathology affecting their spine, who ordinarily has amounts of pain, discomfort, could see cyclical changes in those amounts of pain…[151]

  1. [113]
    Dr Labrom's opinion was that while Mr Granato's work activities may have resulted in temporary periods of exacerbation or discomfort, the degenerative disc bulging and facet arthropathy were constitutional, degenerative and not in any clear way related to the work activities.[152]
  2. [114]
    For these reasons, I am not persuaded that any aggravation of Mr Granato's degenerative lower back condition arose out of or in the course of his employment.
  1. Was Mr Granato's employment a significant contributing factor in the aggravation of his degenerative lower back condition?
  1. [115]
    When determining whether Mr Granato's employment was a significant contributing factor to his injury, it is necessary for the Commission to consider whether or not the exigencies of his employment contributed in some significant way to the occurrence of the injury.
  2. [116]
    For the reasons set out in [74] to [114], I am not persuaded Mr Granato's employment was a significant contributing factor to any aggravation of his degenerative lower back condition.
  1. Conclusion
  1. [117]
    For the reasons given, I consider Mr Granato has not discharged the onus on him.
  2. [118]
    I confirm the review decision of the Regulator.
  3. [119]
    I will hear from the parties as to costs.
  1. Orders
  1. The appeal is dismissed;
  2. The decision of the Respondent dated 20 February 2018 is affirmed.
  3. 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] WCR notice of appeal filed 16 July 2020, attached Reasons for decision issued on 19 June 2020.

[2] Mr Granato's Closing submissions filed 15 July 2021 [19].

[3] Ibid [19].

[4] The Regulator's Closing submissions filed 2 August 2021 [66].

[5] Exhibit 10, 6.

[6] T 1 – 11, ll 40 – 45.

[7] Exhibit 7.

[8] Mr Granato's Amended Statement of Facts and Contentions filed 17 June 2021; T 1 – 12, ll 20 – 22.

[9] T 1 – 12, ll 23 – 28.

[10] T 1 – 37, ll 5 – 47.

[11] The Regulator's Statement of facts and contentions filed 6 November 2020 [11].

[12] T 1 – 12, ll 36 – 40.

[13] T 1 – 14, ll 40 – 45.

[14] T 1 – 13, ll 34 – 39.

[15] T 1 – 14, ll 15 – 16.

[16] T 1 – 14, ll 10 – 13.

[17] T 1 – 14, ll 6 – 10.

[18] T 1 – 14, ll 20 – 23.

[19] T 1 – 15, ll 12 – 16.

[20] T 1 – 15, ll 20 – 21.

[21] T 1 – 15, ll 23 – 34.

[22] T 1 – 16, ll 8 – 10.

[23] T 1 – 14, ll 0 – 5.

[24] T 1 – 13, ll 6 – 26.

[25] T 1 – 59, l 25 – T 1 – 61, l 14; Exhibit 9.

[26] T 1 – 62, l 0 – T 1 – 64, l 46.

[27] T 1 – 65, ll 5 – 34.

[28] T 1 – 25, ll 26 -29.

[29] Exhibit 21.

[30] Ibid.

[31] Ibid.

[32] Ibid.

[33] T 1 – 126, l 7 – T 1 – 127, l 28.

[34] T 2 – 3, ll 16 – 46.

[35] T 2 – 4, ll 10 – 14.

[36] T 2 – 4, ll 40 – 45.

[37] T 2 – 5, ll 4 – 11.

[38] T 2 – 6, ll 0 – 10.

[39] T 2 – 5, ll 21 – 28.

[40] T 2 – 5, ll 21 – 34.

[41] T 2 – 11, ll 2 – 10.

[42] T 2 – 11, ll 31 – 35.

[43] T 1 – 26, ll 1 – 2.

[44] T 1 – 27, ll 5 – 9.

[45] T 1 – 27, ll 21 – 27.

[46] T 1 – 18, ll 0 – 16.

[47] T 1 – 18, ll 20 – 27.

[48] T 1 – 18, l 34.

[49] T 1 – 18, ll 39 – 45.

[50] T 1 – 19, ll 22 – 42.

[51] T 1 – 20, ll 0 – 9.

[52] T 1 – 22, ll 0 – 14.

[53] T 1 – 22, ll 10 – 11.

[54] T 1 – 22, ll 44 – 45.

[55] T 1 – 23, ll 0 – 5.

[56] T 1 – 23, ll 35 – 45.

[57] T 1 – 36, l 24.

[58] T 1 – 42, ll 21 – 25.

[59] T 1 – 42, l 35.

[60] T 1 – 42, ll 39 – 46.

[61] T 1 – 42, ll 45 – 46.

[62] T 1 – 66, ll 30 – 44.

[63] T 1 – 45, ll 25 – 28.

[64] T 1 – 45, ll 25 – 37.

[65] Exhibit 1; Exhibit 2.

[66] Exhibit 1; Exhibit 16.

[67] Exhibit 4.

[68] Exhibit 1, 5.

[69] Exhibit 5, 2.

[70] Exhibit 2, 7.

[71] Exhibit 16, 2.

[72] Exhibit 16, 3.

[73] Ibid, 3.

[74] Ibid, 3.

[75] T 1 – 110, ll 6 – 14.

[76] Exhibit 3.

[77] Ibid, 4.

[78] Ibid, 4.

[79] T 1 – 98, ll 10 – 15.

[80] T 1 – 98, ll 26 – 31.

[81] T 1 – 99, ll 20 – 24.

[82] Exhibit 17, 2.

[83] T 1 – 102, ll 8 – 22.

[84] T 1 – 104, ll 20 – 29.

[85] T 1 – 104, ll 31 – 38.

[86] Exhibit 10.

[87] Exhibit 11.

[88] Exhibit 10, 5.

[89] Ibid, 7.

[90] Ibid,7.

[91] Ibid, 7.

[92] Exhibit 11.

[93] Ibid, 2.

[94] T 1 – 94, ll 10 – 18.

[95] T 1 – 94, ll 26 – 33.

[96] T 1 – 88, ll 23 – 25.

[97] T 1 – 88, ll 26 – 27.

[98] T 1 – 89, ll 40 – 41.

[99] T 1 – 91, ll 0 – 6.

[100] T 1 – 91, ll 7 – 13.

[101] T 1 – 93, ll 23 – 25.

[102] Mr Granato's Closing submissions filed 17 June 2021, 21.

[103] Exhibit 8.

[104] Mr Granato's Closing submissions filed 17 June 2021 [143].

[105] Ibid, [148].

[106] Ibid, [152].

[107] Ibid, [153].

[108] The Regulator's Closing submissions filed 2 August 2021 [66]; Croning v Workers Compensation Board (1997) 156 QGIG 100 as applied in JBS Australia Pty Ltd v Q-COMP [2013] ICQ 13.

[109] The Regulator's Closing submissions filed 2 August 2021 [64].

[110] Ibid, [52].

[111] Ibid, [52].

[112] Ibid, [53].

[113] Ibid, [57].

[114] Ibid, [54].

[115] Ibid, [55].

[116] Ibid, [56].

[117] [2021] QIRC 437.

[118] Burton v Workers Compensation Regulator [2021] QIRC 437 [142] citing Omanski v Q-Comp [2013] ICQ 7, Heald v Q-Comp (2004) 177 QGIG 769, and JBS Australia Pty Ltd v Q-COMP [2013] ICQ 13.

[119] Burton v Workers Compensation Regulator [2021] QIRC 437 [142] citing Kavanagh v Commonwealth (1960) CLR 547, Avis v WorkCover Queensland (2000) 165 QGIG 788, and Theiss Pty Ltd v Q-Comp [2010] ICQ 27.

[120] Burton v Workers Compensation Regulator [2021] QIRC 437 [142] citing Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262.

[121] [2019] QIRC 203.

[122] Ribeiro v Workers' Compensation Regulator [2019] QIRC 203 citing Holtman v Sampson [1985] Qd.R 472, Ramsay v Watson (1961) 108 CLR 643, Davidson v Blackwood [2014] ICQ 008, Nilsson v Q-Comp (2008) 189 QGIG 523, Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538, Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190, Commissioner of Police v David Rea [2008] NSWCA 199, Wiechmann v Lovering and WorkCover Corporation [1992] 59 SASR 203, Alsco Pty Ltd v VICA Mircevic [2013] VSCA 229, Monroe Australia Pty Ltd v Campbell [1995] 65 SASR 16, and Nutley v Workers’ Compensation Regulator [2019] ICQ 002.

[123] T 2 – 4, ll 41 – 45.

[124] T 1 – 114, ll 28 – 34.

[125] T 1 – 114, ll 36 – 37.

[126] T 1 – 115, ll 0 – 5.

[127] T 2 – 5, ll 41 – 43.

[128] T 2 – 6, ll 5 – 31.

[129] T 2 – 5, ll 41 – 47.

[130] T 1 – 43, ll 5 – 14.

[131] T 1 – 23, ll 0 – 15.

[132] The Regulator's Closing submissions filed 2 August 2021 [57].

[133] Exhibit 13; The Regulator's Closing submissions filed 2 August 2021 [58].

[134] The Regulator's Closing submissions filed 2 August 2021 [58].

[135] Ibid, [59].

[136] Ibid, [58].

[137] Ibid, [52].

[138] Exhibit 2, 7.

[139] T 1 – 102, ll 14 – 22.

[140] Exhibit 10, 5.

[141] Exhibit 16, 3.

[142] Exhibit 3.

[143] Exhibit 17.

[144] Exhibit 4.

[145] Exhibit 5.

[146] T 1 – 91, ll 0 – 7.

[147] T 1 – 102, ll 40 – 41.

[148] MacArthur v WorkCover Queensland [2001] ICQ 20 (2001) 167 QGIG 100, 102. Emphasis added.

[149] Exhibit 10, 7.

[150] Exhibit 11.

[151] T 1 – 86, ll 41 – 43.

[152] Exhibit 10, 7.

Close

Editorial Notes

  • Published Case Name:

    Granato v Workers' Compensation Regulator

  • Shortened Case Name:

    Granato v Workers' Compensation Regulator

  • MNC:

    [2024] QIRC 162

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    28 Jun 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
Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
2 citations
Jump To
Cite 1 - (1940) 64 CLR 538
Cite 2 - (1940) 64 CLR 538
Alsco Pty Ltd v VICA Mircevic [2013] VSCA 229
2 citations
Jump To
Cite 1 - [2013] VSCA 229
Cite 2 - [2013] VSCA 229
Avis v WorkCover Queensland (2000) 165 QGIG 788
2 citations
Jump To
Cite 1 - (2000) 165 QGIG 788
Cite 2 - (2000) 165 QGIG 788
Burton v Workers' Compensation Regulator [2021] QIRC 437
5 citations
Jump To
Cite 1 - [2021] QIRC 437
Cite 2 - [2021] QIRC 437
Cite 3 - [2021] QIRC 437
Cite 4 - [2021] QIRC 437
Cite 5 - [2021] QIRC 437
Commissioner of Police v David Rea (2008) NSWCA 199
2 citations
Jump To
Cite 1 - (2008) NSWCA 199
Cite 2 - (2008) NSWCA 199
Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100
2 citations
Jump To
Cite 1 - (1997) 156 QGIG 100
Cite 2 - (1997) 156 QGIG 100
Davidson v Blackwood [2014] ICQ 8
2 citations
Jump To
Cite 1 - [2014] ICQ 8
Cite 2 - [2014] ICQ 8
Fernandez v Tubemakers of Australia (1975) 2 NSWLR 190
2 citations
Jump To
Cite 1 - (1975) 2 NSWLR 190
Cite 2 - (1975) 2 NSWLR 190
Heald v Q-COMP (2004) 177 QGIG 769
2 citations
Jump To
Cite 1 - (2004) 177 QGIG 769
Cite 2 - (2004) 177 QGIG 769
Holtman v Sampson [1985] Qd R 472
2 citations
Jump To
Cite 1 - [1985] Qd R 472
Cite 2 - [1985] Qd R 472
JBS Australia Pty Ltd v Q-COMP [2013] ICQ 13
3 citations
Jump To
Cite 1 - [2013] ICQ 13
Cite 2 - [2013] ICQ 13
Cite 3 - [2013] ICQ 13
Kavanagh v Commonwealth (1960) CLR 547
2 citations
Jump To
Cite 1 - (1960) CLR 547
Cite 2 - (1960) CLR 547
MacArthur v WorkCover Queensland [2001] ICQ 20
1 citation
Jump To
Cite 1 - [2001] ICQ 20
MacArthur v WorkCover Queensland (2001) 167 QGIG 100
2 citations
Jump To
Cite 1 - (2001) 167 QGIG 100
Cite 2 - (2001) 167 QGIG 100
Monroe Australia Pty Ltd v Campbell (1995) 65 SASR 16
2 citations
Jump To
Cite 1 - (1995) 65 SASR 16
Cite 2 - (1995) 65 SASR 16
Nilsson v Q-Comp (2008) 189 QGIG 523
2 citations
Jump To
Cite 1 - (2008) 189 QGIG 523
Cite 2 - (2008) 189 QGIG 523
Nutley v Workers' Compensation Regulator [2019] ICQ 2
2 citations
Jump To
Cite 1 - [2019] ICQ 2
Cite 2 - [2019] ICQ 2
Omanski v Q-COMP [2013] ICQ 7
2 citations
Jump To
Cite 1 - [2013] ICQ 7
Cite 2 - [2013] ICQ 7
Ramsay v Watson (1961) 108 CLR 643
2 citations
Jump To
Cite 1 - (1961) 108 CLR 643
Cite 2 - (1961) 108 CLR 643
Ribeiro v Workers' Compensation Regulator [2019] QIRC 203
3 citations
Jump To
Cite 1 - [2019] QIRC 203
Cite 2 - [2019] QIRC 203
Cite 3 - [2019] QIRC 203
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
2 citations
Jump To
Cite 1 - (2000) 49 NSWLR 262
Cite 2 - (2000) 49 NSWLR 262
Theiss Pty Ltd v Q-COMP [2010] ICQ 27
2 citations
Jump To
Cite 1 - [2010] ICQ 27
Cite 2 - [2010] ICQ 27
Wiechmann v Lovering and WorkCover Corporation [1992] 59 SASR 203
2 citations
Jump To
Cite 1 - [1992] 59 SASR 203
Cite 2 - [1992] 59 SASR 203

Cases Citing

Case NameFull CitationFrequency
State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2025] QIRC 1662 citations
1

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