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Thiess Pty Ltd v Workers' Compensation Regulator[2025] QIRC 101

Thiess Pty Ltd v Workers' Compensation Regulator[2025] QIRC 101

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Thiess Pty Ltd v Workers' Compensation Regulator [2025] QIRC 101

PARTIES: 

Thiess Pty Ltd

Appellant

v

Workers' Compensation Regulator

Respondent

CASE NO:

WC/2022/208

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

14 April 2025

HEARING DATES:

15, 16, 17 and 18 April 2024

DATES OF WRITTEN CLOSING SUBMISSIONS:

Appellant's submissions filed 3 July 2024

Respondent's submissions filed 5 August 2024

Appellant's submissions in reply filed 20 August 2024

MEMBER:

McLennan IC

HEARD AT:

Mackay

ORDERS:

1. The appeal is dismissed.

2. The Respondent's review decision of 24 November 2022 is confirmed.

3. The Appellant is to pay the Respondent's costs of the hearing, to be agreed or, failing agreement, to be subject to a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – physical injury – employer appeals against decision of Workers' Compensation Regulator to accept worker's application for compensation – whether the appellant suffered a personal injury – whether the appellant's employment was a significant contributing factor to the injury – appeal dismissed

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32, s 34, s 558

Workers' Compensation and Rehabilitation Regulation 2014 (Qld) s 132

CASES:

Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031

Davidson v Blackwood [2014] ICQ 008

Ribeiro v Workers' Compensation Regulator [2019] QIRC 203

Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262

SPE Pty Ltd v Q-COMP and Gary Clifford Fuller [2010] ICQ 32

State of Queensland (Queensland Health) v Q–Comp and Beverley Coyne (2003) 172 QGIG 1447

Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2) [2021] ICQ 13

APPEARANCES:

Mr S. P. Gray of counsel, instructed by HWL Ebsworth Lawyers for the Appellant.

Mr P. B. O'Neill of counsel, directly instructed by the Respondent.

Reasons for Decision

  1. [1]
    This appeal concerns Ms Sandy Gray, a lady in her mid-forties who worked for Thiess Pty Ltd at the Lake Vermont Coal Mine, Dysart in Central Queensland.[1] 
  1. [2]
    On 4 May 2022, there was a mechanical failure in the dump truck operated by Ms Gray.  She was injured when the truck jolted back and forth. 
  1. [3]
    WorkCover rejected Ms Gray's application for compensation,[2] so she appealed to the Workers' Compensation Regulator to review that decision.[3]  The Regulator found in favour of Ms Gray.[4] 
  1. [4]
    Thiess has now appealed the Regulator's decision to compensate Ms Gray for her workplace injury.  That is the subject of this Decision.

Medical history

  1. [5]
    Less than four years earlier, Ms Gray was violently assaulted. 
  1. [6]
    She developed secondary right arm brachialgia, resulting in "some right sided neck pain, some sporadic right arm pain, and some numbness around the radial border of her right wrist." 
  1. [7]
    To relieve the pain of her symptoms, Ms Gray took prescribed pain relief medications[5] and also had a spinal cord stimulator surgically implanted in January 2020.[6] 
  1. [8]
    Ms Gray applied for a job at the mine in August 2020 and was assessed to be fit for duty by three doctors.[7]  That included "a musculoskeletal assessment with all components, including the cervical spine, being reported as normal" and clearance to "work in any capacity at the mine, including operating heavy vehicles and performing heavy manual handling."[8]
  1. [9]
    She commenced with Thiess as a truck driver the following month.[9]
  1. [10]
    The medical records, and Declaration of Medication disclosures made to the company, show Ms Gray's use of prescribed pain relief medications between 9 June 2021 and 3 March 2022 continuing.[10]

Claim details

  1. [11]
    On 11 May 2022, Ms Gray lodged an application for compensation by telephone.[11]
  1. [12]
    WorkCover rejected Ms Gray's application for compensation on 15 June 2022.[12]
  1. [13]
    On 7 September 2022, an application was made to the Workers' Compensation Regulator ('the Regulator'; 'the Respondent') to review that decision.[13]
  1. [14]
    The Regulator set aside WorkCover's decision to reject Ms Gray's application for compensation in its review decision of 24 November 2022.[14]
  1. [15]
    Thiess Pty Ltd ('Thiess'; 'the Appellant') subsequently filed this appeal against the Regulator's decision on 21 December 2022.[15]

Relevant legislation

  1. [16]
    The definition of injury, per the iteration of the Workers' Compensation and Rehabilitation Act 2003 (Qld) (the Act) at the relevant time,[16] was (emphasis added):

32    Meaning of injury

  1. An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.

…

  1. 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;
  1. 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;
  2. a disease;
  3. a medical condition, if the condition becomes a personal injury or disease because of the aggravation;

…

  1. For subsection (3)(b), 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.

…

34 Injury while at or after worker attends place of employment

  1. An injury to a worker is taken to arise out of, or in the course of, the worker's employment if the event happens on a day on which the worker has attended at the place of employment as required under the terms of the worker's employment –
  1. While the worker is at the place of employment and is engaged in an activity for, or in connection with, the employer's trade or business; or

…

  1. [17]
    An appeal such as this is a hearing de novo.[17]  The Appellant bears the onus of proving Ms Gray has not suffered an injury in accordance with s 32 of the Act.[18]  As explained by Deputy President Merrell in Ribeiro v Workers' Compensation Regulator: [19]

The balance of probabilities test requires a court to reach a level of actual persuasion and that process does not involve a mechanical application of probabilities.[20]

What are the questions to be determined?

  1. [18]
    There is no dispute between the parties that Ms Gray was a 'worker' at the relevant time.
  1. [19]
    As agreed at the Mention held on 19 October 2023, the questions to be determined are:[21]
  • Whether Ms Gray suffered a personal injury;

(If the Commission finds Ms Gray did so, then Thiess accepts the personal injury arose in the course of her employment);

and

  • If so, whether Ms Gray's employment was a significant contributing factor to her personal injury.
  1. [20]
    Notwithstanding that, the parties suggested further issues for determination in their respective closing written submissions. 
  1. [21]
    Thiess proposed the following additional matters for the Commission to determine:
  1. when did the hoist failure occur
  1. what was the result of that failure on Ms Gray as an operator;[22]

…

  1. [22]
    The Regulator instead contended the issues in dispute for the Commission's determination are:
  1. During the unloading phase of the truck on 4 May 2022 was Ms Gray subject to a jolting force?
  1. Did that jolting force cause Ms Gray to sustain an injury?
  1. If so, what was the nature of the injury?[23]

…

Summary of Findings

  1. [23]
    For the reasons that follow, I find that:
  • Ms Gray did suffer a personal injury on 4 May 2022;
  • The personal injury is a musculo-ligamentous strain to Ms Gray' cervical spine;
  • On the basis of that finding, it is then not disputed that Ms Gray's personal injury did arise out of, or in the course of, her employment;[24]

and

  • Ms Gray's employment was a significant contributing factor to her personal injury.

Evidence and submissions

  1. [24]
    Written closing submissions were directed in the order Appellant – Respondent – Appellant (in reply, on issues of law only).
  1. [25]
    The Appellant's written closing submissions were filed on 3 July 2024.
  1. [26]
    The Respondent's written closing submissions were filed on 5 August 2024.
  1. [27]
    The Appellant's further written closing submissions in reply were filed on 20 August 2024.
  1. [28]
    The evidence of the 11 witnesses and Exhibits tendered at the Hearing, together with the written closing submissions, the Statements of Facts and Contentions, the Workers' Compensation Regulator notice of appeal and other materials filed in this matter were considered in this Decision.  I have determined not to approach the writing of this Decision by summarising the entirety of the evidence provided and submissions made, but will instead refer to the parties' positions in my consideration of each question to be decided.

Witnesses

  1. [29]
    The witnesses for the Appellant's case were:
  • Ms Adriana Doncilapop (Thiess – Open Cut Examiner and Emergency Response Team Captain);
  • Mr Aaron Geisler (Thiess – Diesel Fitter);
  • Mr Luke Hart (formerly Thiess – Open Cut Examiner);
  • Mr Brett Stainkey (formerly Thiess – Supervisor);
  • Mr Tim Barrett (Thiess – High Voltage Electrical Leading Hand and Emergency Response Team)
  • Mr Ian Corr (formerly Thiess – Health, Safety and Training Manager);
  • Dr Robert Labrom (Orthopaedic Spinal Surgeon); and
  • Mr Jade Smith (Liebherr – Technical Services Advisor and Electrician).
  1. [30]
    The witnesses for the Respondent's case were:
  • Ms Sandra Gray;
  • Ms Robyn Winger (formerly Thiess – Machine Operator and Ms Gray's mother); and
  • Associate Professor Matthew Keyes (Specialist Pain and Medicine Physician).

Workplace incident on 4 May 2022 – Up to the point that Ms Gray stopped the truck

  1. [31]
    It is not disputed that Ms Gray was operating a Rear Dump Truck at the mine, when one of the two hoist cylinders on the truck failed when dumping overburden.[25]
  1. [32]
    The dispute lies on whether or not "a jolt or abnormal movement resulting in Ms Gray's personal injury" occurred.[26]
  1. [33]
    At the time of the workplace incident, Ms Gray was operating a Liebherr Rear Dump Truck that "is a heavy vehicle, designed to operate in a harsh mining environment, and has a series of suspension cylinders, designed to provide comfort to the operator and mechanical resistance to the terrain in which the truck operates."[27] "The truck requires two multistage hoist cylinders to lift the tray body from the truck chassis when tipping loads."[28]

Appellant's position

  1. [34]
    Thiess stated Ms Gray was not aware of the mechanical failure until afterwards – and that there was no abnormal movement in the truck that could have caused a whiplash injury. 
  1. [35]
    Thiess asserted:

Ms Gray continued to operate the truck (while the cylinder lift was dragging along the ground behind the truck) and did not report any event, mechanical failure, incident or injury at any time whilst operating the truck, which supports Thiess' position that she was unaware of the failure.  It was only once instructed to stop by a colleague and then after exiting the truck that Ms Gray claimed to have sustained an injury.[29]

…

  1. [36]
    The Appellant stated that Ms Gray raised the truck's tray to "100% lift and began moving forward" in order to dump the load[30] but that:

… during this dumping operation of the third load, a hoist cylinder on the truck failed and the worker was unaware of the component failure because:

  1. the worker did not report any abnormal incident occurring during the dumping operation;
  2. the worker did not report any damage to the truck;
  3. the worker continued to operate the truck after the dumping;[31]

…

  1. [37]
    Thiess contends that, after the dumping operation of the third load was complete, Ms Gray:
  • drove the truck away to reload, without reporting any injury;[32] and
  • did not realise that the broken hoist cylinder was "being dragged across the road surface, causing gouge marks in the road."[33]
  1. [38]
    In support of its position, Thiess stated that:
  • … During a dumping operation, one of the four cylinder lifts on the truck failed.
  • Ms Gray claims to have suffered immediate pain, yet she continued to operate the truck and did not report any event, incident or injury whilst operating the truck at any time which is also in contravention of Thiess' policies.
  • Ms Gray continued her circuit back to the excavator to be loaded again.  She only stopped the truck after a colleague radioed her and instructed her to stop the truck, noting the cylinder lift was dragging on the ground.  On exiting the truck, Ms Gray became aware that the cylinder lift had failed.  Ms Gray stated on a number of occasions that she was fearful of losing her job.
  • Ms Gray could not state when the cylinder lift failed and her reporting to WorkCover is inconsistent with the data.  This also supports Thiess' position that Ms Gray was unaware that the cylinder lift had failed.
  • Having regard to the operational data, nil reporting of the injury / event, continuing to operate the truck, Ms Gray's significant pre-existing condition and her inconsistent statements throughout the WorkCover claim, Thiess are firmly of the view that there was no event which could have caused Ms Gray to 'shake back and forth' or suffer whiplash as alleged.  This is supported by objective evidence.  Rather, Thiess consider that Ms Gray's neck symptoms are entirely related to her long-standing pre-existing condition.[34]

Respondent's position

  1. [39]
    The Respondent contended that the workplace incident occurred as follows:
  1. the worker aligned the truck in preparation for dumping and observed the truck to be in a stable position;
  1. the worker commenced unloading the machine by pulling on the hoist lever;
  1. at the final stage of the tray lifting/unloading process, the tray of the machine jerked, causing the truck to move in a back and forward motion;
  1. the back and forwards motion caused the worker to experience an immediate, sharp pain in her neck;
  1. the worker took off the park brake, allowing the truck to move forward in first gear and the load emptied itself;
  1. the worker lowered the hoist;

…

…  [Ms Gray] continued to operate the truck [when a hoist cylinder on the truck failed] because she thought that the jolting was caused by a rock or lump of overburden hitting the tray or tailgate.

…

[Ms Gray] denies that there was no jolting or unusual movement because of the incident …[35]

  1. [40]
    Ms Gray's account was that at approximately 11:45 am, she had contacted her supervisor, Mr Drew Wockner, to advise difficulties with the two-way communication on the UHF channel for the circuit.[36]  Before stopping her truck, Ms Gray called Mr Wockner on the main VHF channel asking him to come down to EX75 circuit as "we have a problem" (that is, the neck pain following the incident) – though Ms Gray did not specifically tell him she was injured and she did not know the truck was damaged.[37]
  1. [41]
    The Respondent submitted that the sequence of events leading to Ms Gray stopping the truck was that:
  1. she heard "Roscoe" on the dozer report that he could smell smoke from her tyres, to stop the truck and there was oil leaking;
  1. she applied the emergency STOP which shut down the engine;
  1. she asked the dozer driver nearby whether it was safe to leave the truck and come down to the floor;
  1. when he indicated it was safe, she retrieved her bag from the cabin and exited the truck;
  1. when she reached the floor, Mr Wockner had arrived in a light vehicle, and she advised him that she had jarred her neck and asked if she could go to the Central Starting Point (CSP);
  1. at around this time, she noticed, and Mr Wockner stated that the lift ram had broken away from the pin and welds and was on the ground in front of tyre position 3, or 4;[38]

Workplace incident on 4 May 2022 – Operational data obtained from the truck

Appellant's position

  1. [42]
    The Appellant relies on operational data obtained to support its position that there was no abnormal movement that could have caused Ms Gray to be injured.
  1. [43]
    In responding to Ms Gray's application for workers' compensation, Thiess "commissioned a review of the truck's operation data by the truck manufacturer, Liebherr" and was advised that:
  1. the analysis of the suspension pressures of the truck during the dumping of the third load found oscillations in the suspension that reflected typical suspension pressures during the dumping procedures;
  1. there were no detectable jolts or jars in the body of the truck, which would have been demonstrated by decreasing suspension, low frequency of oscillation and low magnitude; and
  1. there was no significant movement that occurred in the truck which would have exceeded normal operational parameters.[39]
  1. [44]
    The Appellant submitted that:
  1. the truck's operational data demonstrates that during the course of this dumping operation:
  1. the suspension pressures reflected typical suspension pressures;
  2. there were no detectable jolts or jars in the body of the truck;
  3. there was no movement that occurred in the truck which would have exceeded normal operational parameters;[40]
  1. [45]
    The Appellant explained that:
  • Thiess obtained technical operational data from Liebherr, the manufacturer of the rear dump truck which Ms Gray was operating.  The technical data obtained and analysed by Liebherr included the truck's speed, hand brake use, hoist raise command, accelerator pedal and service brake use, and suspension pressure data to analyse physical movement of the truck.  There was no evidence of any jolt or abnormal movement in the truck's operation.  This is likely because the 3 other cylinder lifts remained operational.  The truck's data was found to reflect normal and typical operation of the truck.[41]
  1. [46]
    Thiess stated that:

… there was no event which caused Ms Gray to shake back and forth or to suffer whiplash as alleged.  Thiess obtained technical operational data from Liebherr, the manufacturer of the rear dump truck which Ms Gray was operating.  Liebherr analysed the data and found no evidence of any jolts or irregular movement in the truck's suspension.  The data was also overlayed onto another truck's data for comparison.[42]

Respondent's position

  1. [47]
    The operational data obtained from the truck was contested by the Respondent, who asserted that:
  • WorkCover and Thiess have relied principally on the analytical data obtained from the manufacturer of the truck
  • The analytical data must be interpreted and is opinion evidence of the technical support advisor, whose qualifications are not apparent
  • There is no evidence to how and when the data was obtained, nor whether it has deteriorated or been damaged over time[43]
  1. [48]
    The Respondent does not accept the operational data and conclusions submitted by the employer because:
  1. The base data and the origin of the base data have not been confirmed or certified;
  2. The timing of this data collection and its veracity and reliability has not been confirmed or certified;
  3. The details of the data collecting system, the degree and source of error and unreliability have not been disclosed; and
  4. The identity of the person/s who interpreted this data and their qualifications entitling them to provide expert opinion, as defined by the courts, has not been disclosed.[44]

Workplace incident on 4 May 2022 - After the point that Ms Gray stopped the truck

Appellant's position

  1. [49]
    Thiess denied Ms Gray was injured as a result of the workplace incident on 4 May 2022.  Rather, the company "… consider that Ms Gray's neck symptoms are entirely related to her long-standing pre-existing condition".[45] 
  1. [50]
    In its grounds of appeal, Thiess outlined:

Ms Gray also has a significant pre-existing neck condition.  She had a cervical spine stimulator surgically insitu at the time and had declared increasing use of medication (Tramadol and Lyrica) two months prior to the alleged incident on February 2022, which was required on an ongoing basis.

Thiess appeal the decision of the Workers' Compensation Regulator on the grounds that there was an error in the finding that there was a causal connection between the component failure and Ms Gray's alleged injury.  Thiess deny that Ms Gray's alleged neck injury arose out of her employment and maintain that her neck condition is entirely pre-existing.[46]

  1. [51]
    Thiess contended Ms Gray has not suffered a personal injury because:
  1. when the worker was assessed by Ms Doncilapop, the worker's range of motion in response to stimuli on both legs and arms were found to be in a satisfactory condition and the worker was not complaining of radiation of symptoms to her arms and legs; and
  1. the symptoms described by the worker are consistent with her pre-existing right arm brachialgia and right C6 radiculopathy.[47]
  1. [52]
    Thiess submitted that Ms Gray was not injured as a result of the workplace incident because:
  • Ms Gray only stopped the truck at approximately 11:53 am when another worker (EX75 operator) noticed her truck was "losing oil and instructed her to stop."  At that point, Ms Gray had not reported any injury or realised the truck was damaged.[48]
  • Ms Gray stopped the truck as directed, exited the cabin and disembarked upon permission to do so from Mr Wockner.  While Ms Gray passed him on her way to the light vehicle, she did not tell him she was in pain or report any incident or injury.[49]
  • About 5 minutes later, Mr Wockner and Mr Hart came over to Ms Gray in the light vehicle.  Mr Wockner "observed that she had laid the passenger seat back, she was upset and was attempting to operate the stimulator".  When Mr Wockner asked if Ms Gray was okay, she replied "this was normal, and she was trying to use the stimulator".[50]
  • Mr Hart asked Ms Gray if she needed emergency response treatment (ERT).  She replied she was okay and asked to be taken to the crib hut.[51]
  • Ms Gray asked Mr Wockner to assist with operating her stimulator, to increase the dosage.  After approximately 10 minutes of treatment, Mr Wockner asked Ms Gray if she would agree to being assessed by an ERT member and she did so.[52]
  • At approximately 12:25 pm, Ms Doncilapop arrived to assist Ms Gray.  Ms Gray told her that the therapy the stimulator was providing  was a normal thing for her and that she was okay.[53]
  • Ms Gray told Ms Doncilapop and Mr Hart that she was jarred against the seatbelt at the dump and had some pain in her neck.  Ms Gray asked to be taken to the front.[54]
  • "Ms Doncilapop checked the worker's range of motion and response to stimuli on both legs and arms, which were found to be in a satisfactory condition."[55]
  • Ms Gray was told she could not be moved because Ms Doncilapop wanted to carry out some further assessment.  Ms Gray became distressed.  She was taken from the mine by ambulance to hospital.[56]

Respondent's position

  1. [53]
    The Regulator argued that the history provided by Ms Gray to Thiess and treating medical practitioners "was consistent from the time she descended from the truck to the floor."[57]
  1. [54]
    The Regulator submitted that Ms Gray told Mr Wockner that she had jarred her neck and asked if she could go to the Central Starting Point (CSP) at the point that she reached the ground, after alighting from the truck.[58]  Ms Gray sat in the passenger seat of the light vehicle whilst Mr Wockner inspected the truck.  When he and Mr Hart returned to Ms Gray, "Mr Wockner asked her if she was okay … [Ms Gray] was using her cervical spine nerve stimulator … and as a result had twitching in her arm so indicated that … the twitching was normal when using the stimulator."[59]  Ms Gray asked Mr Wockner to assist with operating her stimulator and that "she had dropped the iPod with which she controls the range of settings on her stimulator because the usual level she used to control her neuropathic arm pain was not relieving her neck pain … after around 10 minutes, the stimulator was not relieving the pain and she agreed to the assessment."[60]
  1. [55]
    With respect to the attendance by Ms Doncilapop, Ms Gray's account is that she was "asked about the twitching/shaking and … responded that that was normal with the use of the stimulator."  Ms Gray agreed that she told Ms Doncilapop and Mr Hart that she was jarred against the seatbelt at the dump and had some pain in her neck, and that she wanted to be taken to the front – though also recalled mentioning that "the truck tray had moved back and forward" at that time.  Ms Gray denied that Ms Doncilapop performed any examination or physical assessment and stated that it was her mother, Ms Winger, who insisted that Ms Gray not be moved – not Ms Doncilapop.  Ms Gray was "distressed and upset as the pain continued and the stimulator provided no relief."[61]
  1. [56]
    The Regulator asserted that even if Ms Doncilapop did perform some type of clinical assessment, she is not a registered health practitioner, so the results of any such assessment Thiess say was conducted "are of no relevance or probative value to the diagnosis or causation issues to be determined by the Commission."[62]
  1. [57]
    The Regulator stated that:

… Ms Gray reported her injury after exiting the cabin and was observed operating her spinal stimulator, that she received treatment onsite by way of an ambulance being called, and has consistently continued to seek medical treatment since her date of injury, with her mechanism of injury consistently described to all medical providers … whilst there is a dispute about the extent and impact of the truck's mechanical failure, it is accepted that a mechanical failure occurred, causing the cylinder lift to fail, and resulting in a gouge mark on the road from dragging … it is not disputed that subsequent to the alleged jolting event, the truck that Ms Gray was operating had a strong rubber tyre or smoke smell and began leaking oil.[63]

Consideration

Consideration - Up to the point that Ms Gray stopped the truck

  1. [58]
    On 4 May 2022, Ms Gray was driving a rear dump truck in circuits around the mine site.  The truck was being loaded with overburden at one location, then Ms Gray drove the truck elsewhere to dump the overburden – then repeat.  Overburden is "the rock or soil layer that needs to be removed in order to access the [mineral] being mined … The strict meaning of overburden is anything—soil or rock … that stands between an object of interest and the surface."[64]  The overburden being moved by Ms Gray in the truck that day was lumpy and rocky.
  1. [59]
    The process of dumping a load of overburden from the rear dump truck took only 30 seconds.  While one such dump was in progress, Ms Gray said she was severely jolted about and injured. 
  1. [60]
    Ms Gray's evidence was that the jolting force she experienced occurred in the last phase of dumping "lumpy overburden,"[65] at which point the truck "shook and rocked me backwards and forwards with my head just going smash forward and back."[66]  Ms Gray said her head was turned to the left, looking in the large mirror on the left-hand side.  She recalled experiencing a sharp pain on the right side of the vertebrae.  Although Ms Gray was used to driving the rough terrain of the mine site, having worked in the industry for many years, she had "never, never experienced such a body thrust like that ever while I've operated a truck … I've never experienced such a – a jolt in a machine as I experienced that day".[67]
  1. [61]
    It is not disputed that one of the two hoist cylinders on the truck failed,[68] during that particular dump.  Ms Gray was unaware that occurred at the time, assuming the jolting experienced was caused by falling rock. 
  1. [62]
    Relevantly, the position of the driver's seat is on the left-hand side of the truck[69] and the hydraulic strut that broke was also on the left, immediately behind the cabin.[70]  It was submitted on behalf of Ms Gray that "the tray dropped and the hoist cylinder failed.  The truck has a gross weight of 600 metric tonnes, with a nominal payload of 363 tonnes, meaning that without any payload it weighs approximately 237 metric tonnes.  It is reasonably foreseeable that if the tray were to fail, a considerable weight would slam back down onto the truck and cause a jolt."[71]  On the face of it, commonsense supports that proposition.  Something that heavy failing due to mechanical breakage would in all probability cause severe jolting, no matter how well the truck may otherwise provide for driver comfort[72] in the course of normal use on rough terrain.
  1. [63]
    Labouring under the impression that the severe jolting she experienced had been caused by falling rock, and thinking the pain she felt would pass, Ms Gray continued with her work driving the truck along the circuit for only a matter of approximately 8 minutes afterwards.  I acknowledge Mr Hart's evidence that there are no ramifications for a worker if an emergency is called.[73]  Certainly that ought to be the case.  However, when Ms Gray expressed she did not want an emergency to be called because she was fearful of losing her job at the mine,[74] Mr Hart recalled he consoled Ms Gray by saying "… we're all worried about our jobs but my priority at the moment is your safety and health".[75]  Whether or not Ms Gray's fear for her job was real or imagined does not matter, it was her perception at the time that counts.  If Ms Gray was worried she might lose her job, that explained why she pressed on with work instead of stopping the truck immediately. 
  1. [64]
    Thiess has asserted Ms Gray cannot have been injured because she continued driving the truck.  For the reasons above, I have not accepted Thiess' argument.
  1. [65]
    Thiess also asserted that Ms Gray cannot have been injured because she did not immediately report an injury, as required by company policy.  Ms Gray's evidence was that there were some problems with radio communications that resulted in an alternative channel being used that day.  Further, that Ms Gray had in fact radioed to tell Mr Wockner that "we have a problem", although she sensibly conceded it was not expressly conveyed that was because of her injury.  Mr Wockner was not called as a witness at the Hearing. 
  1. [66]
    As it happened, only about 8 minutes elapsed[76] between Ms Gray experiencing the severe jolting that caused her pain and her stopping the truck.  According to Mr Geisler's opinion as a fellow employee, that was not an inordinate amount of time in which to report an injury in any case.  Mr Geisler's evidence was that "… if it's in the same shift within a reasonable amount of time.   Eight minutes, to me, personally, is a reasonable amount of time."[77]  Ms Gray was unaware the cylinder lift had broken and was dragging along on the ground, making rivets in the road, until an observant colleague told her to stop the truck.  That is not in dispute.
  1. [67]
    I find it most probable that Ms Gray had tried to press on with her work despite feeling pain she hoped would resolve.  As Ms Gray somewhat wryly observed, "If you called up every time you got a jolt I daresay the mine wouldn't operate."[78] 
  1. [68]
    Ultimately, I am persuaded it is more probable than not that the workplace incident on 4 May 2022 – up to Ms Gray stopping the truck – happened as she said it did.  In summary, my view is based on the combination of factors explored above, including: Ms Gray's perception of undesirable consequences that may arise from her calling a halt to work immediately;[79] her awareness of the expense that would be incurred by the company if work was stopped due to an emergency being called;[80] the dumping process occurring in a matter of seconds; the dumping of "lumpy" overburden and assumption of falling rock; the weight of the truck and its contents, at the time of mechanical failure; the immediate proximity of the driver's seat to the broken hydraulic strut; problems with radio communications; and Ms Gray's report on radio that "we have a problem". 

Consideration - Operational data obtained from the truck

  1. [69]
    By all witness accounts, the failure of a hydraulic ram on a rear dump truck is a rare event.[81] 
  1. [70]
    Ms Doncilapop had about 9 years' experience driving the same particular type of Leibherr truck.  Never had she experienced what it felt like to drive a truck when the hydraulic ram failed, nor had Ms Doncilapop ever heard of a similar incident with a Liebherr truck – or with any other make of dump truck, for that matter.[82]
  1. [71]
    Likewise, Mr Geisler had never seen "a catastrophic failure of a ram like this" on a Leibherr truck,[83] nor experienced any similar failure of a hydraulic ram or strut on other types of dump trucks used on the mine site.[84]
  1. [72]
    The only witness who knew what it felt like to drive a rear dump truck whose cylinder hoist broke was Ms Gray.  It is of little consequence that Ms Gray was driving the "limousines"[85] of haul trucks.  No matter what driver comfort it is said to afford, it remains that truck weighed hundreds of tonnes. 
  1. [73]
    Given that type of mechanical failure rarely occurred, it follows that those tasked with interpreting the operational data had limited experience in doing so.
  1. [74]
    Mr Barrett gave evidence about his review of the operational data obtained from the truck.  I have not relied upon that because Mr Barrett had not received training in conducting that data analysis,[86] had only been required to review strut pressure data "up to five occasions" and of those was unsure whether any related to the dumping phase.[87]  For those reasons, I have not relied upon Mr Barrett's opinions about the data.
  1. [75]
    Mr Smith's evidence was that Liebherr was tasked with analysing the data to ascertain whether there was a jolt of the kind reported by Ms Gray.[88]  Mr Smith's report[89] referred to "a huge and sharp spike in the left front suspension strut pressure up to about 5800 pounds per square inch with oscillations for the next 5-7 seconds consistent with a substantial force being applied to the stationary vehicle", with "the same thing occurring at the time the dump body starts rising with there being a sharp spike in the pressure of the right front suspension strut to just under 5000 pounds per square inch with following oscillations.  This indicates that whatever was causing this to occur was more focussed on the left-hand side of the truck (the side in which the hoist cylinder failed)."
  1. [76]
    I accept the Respondent's submission that analysis is confirmed by the graphical representation of the data in Exhibit 4, which shows "a huge spike in the front suspension strut pressures with significant oscillations thereafter after the dump body starts to raise … This is entirely consistent with a significant force being placed on the left-hand side of the truck."[90]  Mr Smith could not explain why that occurred.[91]
  1. [77]
    Essentially, Thiess has relied on Liebherr's analysis of the operational data obtained from its truck to find there was no "significant movement … that exceeded normal operational parameters" that could have caused Ms Gray to be injured.  In my view, it defies logic that a mechanical failure in a truck that heavy did not cause a severe jolt – and that a cylinder hoist breaking and dragging along the ground, such that rivets were made in the road, were not detected in the data as jolts and jars in the truck.  Further, there is a potential for conflict in an analysis conducted by the manufacturer. 
  1. [78]
    In my view, the evidence has established that Ms Gray was subjected to a jolting force during the dumping process.  That is because the Investigation Report and evidence of Mr Smith refer to "a significant and unexplained force which impacted primarily on the left-hand side of the truck occurred during the 30 second unloading phase".[92]  Relevant to that is the location of hydraulic strut that failed  immediately behind the driver's cabin, on the left-hand side of the truck.[93]  Further, the Investigation Report and evidence of Mr Smith support a conclusion that the "force giving rise to oscillations in the suspension data was greater than anything the truck experienced during that circuit and in relation to the left front suspension strut the data records that the pressure approached the maximum reading of the sensor of 6,000 pounds per square inch",[94] at a time "when the truck is in neutral, stationary and with the handbrake applied where you would expect minimal movement in the suspension."[95]  I accept the Regulator's conclusion that this differed markedly from the comparative data obtained from a truck similar to that driven by Ms Gray.[96]

Consideration - When the jolting force occurred

  1. [79]
    Ms Gray's report that the severe jolting she experienced occurred in the last phase of the 30 second dumping process set Thiess down the path of investigating any abnormalities in the truck's operational data, with particular attention to that time period.  Thiess asserted there was no evidence of a severe jolting force revealed in the operational data in that time period.
  1. [80]
    Thiess argued Ms Gray ought to be held to her account that the jolting force occurred in the last phase of the dump specifically – so a broader consideration of the entire 30 second dumping process is impermissible.
  1. [81]
    However, 30 seconds is a very short time period.  Ms Gray stated that she had assumed the severe jolting force experienced was caused by falling rock.  It is not clear whether or not that alternate possibility was investigated.  It follows then that she reasonably recollected that occurred in the last phase of the dump process.  The witnesses called by the Appellant to give evidence about the interpretation of the operational data obtained from the truck attested that no abnormalities are evident in that time period. 
  1. [82]
    Notwithstanding my earlier circumspection about the reliability of the data and the interpretation of it, I accept that while there are certainly limitations to it, the available data does not appear to point to any abnormality in the last phase of the dump process.
  1. [83]
    However, consideration of the truck's operational data in total indicates some abnormalities evident in the initial phase of the dump operation. 
  1. [84]
    Mr Smith, technical services adviser for Liebherr, could not ascertain exactly when the mechanical failure might have occurred because there were no sensors on the cylinder hoists themselves.[97]  Neither could Mr Barrett, who could not identify the point of mechanical failure from the data downloaded.[98]  Mr Corr's Investigation Report for Thiess relied on the contents of the Liebherr report.[99]  I noted Dr Labrom offered a view tangential to his evidence that an analysis conducted by the manufacturer of the truck that had suffered mechanical failure resulting in a claimed injury may be somewhat conflicted.[100]  That resonated as it was also a question in my mind.  Ideally any technical report ought to be at arm's length from commercial benefit.
  1. [85]
    Given Ms Gray's assumption that falling rock caused the jolting force, her inability to correctly identify precisely 'when' the severe jolting back and forth occurred within a 30 second time period is not significant to the disposition of this appeal.  In the circumstances, it is understandable that Ms Gray was preoccupied by being in the moment of being jolted about and experiencing pain as a result. 
  1. [86]
    The Respondent sensibly conceded there is "a difference in timing between what the data records as being a significant jolt and when Ms Gray reported this to occur.  However, this should be seen in the context where the entire period is a period of 30 seconds and further, Mr Corr confirmed that it was not until some weeks after the event that Ms Gray's statement was received."[101]
  1. [87]
    I agree with the Respondent's submission that "it does not matter whether the jolting occurred because of the failing of the hydraulic strut or some other cause such as a large rock impacting the dove tail on the truck.  All that is required is for the Commission to be satisfied on the balance of probabilities that during the unloading phase there was a jolting force that occurred."[102]  In my view, the Appellant has placed undue importance on a need for Ms Gray to have particularised the precise pin point within a 30 second window 'when' the jolting was experienced and pain felt.

Consideration - After Ms Gray stopped the truck

  1. [88]
    Thiess contends Ms Gray said she was injured after she alighted the truck and saw the broken cylinder hoist.  For the reasons earlier explained, I have rejected that proposition.  However, even if the Appellant's version of events were accepted, I have also earlier considered that may well have been the first opportunity Ms Gray had to report it in circumstances where the radio communications had been patchy that shift and that she was trying to press on with her work despite the pain.
  1. [89]
    Notwithstanding the above, I believe Ms Gray's evidence that she told Mr Wockner she was hurt when passing him on her way to the light vehicle,[103] as he went on to examine damage to the rear dump truck.  No contrary evidence was presented regarding that exchange.
  1. [90]
    Ms Gray also told Ms Doncilapop and Mr Hart she was in pain shortly after exiting the truck, once settled in the light vehicle.
  1. [91]
    Thiess noted that Ms Gray was able to exit the cabin of the truck with her handbag, descend the stairs and walk to the light utility vehicle unassisted.  That does not mean she was not in pain or injured.  Only that she was not entirely incapacitated or lame, which was not contended. 
  1. [92]
    Ms Gray impressed me as an honest, straight-forward person – a view shared by her supervisor of several years, Mr Brett Stainkey,[104] who knew her well.[105]

Attempts to manage pain with the stimulator device

  1. [93]
    What happened next was that Ms Gray sat in the light utility vehicle[106] that had been driven down by Mr Wockner and attempted to manage her pain with the surgically implanted stimulator device.  That was not providing her with relief.  When Mr Wockner, and others from the Emergency Response Team (ERT) came to assist her, Ms Gray asked for help in operating the device. 
  1. [94]
    Mr Barrett's evidence was that Ms Gray asked him to turn the device up,[107] and that she exhibited "jolting", "pulsing" movements, like being "electrocuted".[108]  That cannot have been performative, it was Ms Gray's real physiological response to the stimulus provided by the device.  At the time he was operating the stimulator for her, Mr Barrett's evidence was that Ms Gray "appeared to be in a level of discomfort … and distress … Like heavy breathing.  Sort of grimacing … Those sort of telltale signs that someone's in a level of discomfort."[109]
  1. [95]
    While Thiess has seized upon Ms Gray's comment to Mr Hart about that being "normal",[110] she clarified that was in relation to the physical convulsions and twitching upon using the stimulator.  Ms Gray disavowed she meant that the pain was "normal".  I accept that to be the case.  Ms Gray's explanation makes sense in those circumstances.  I further note that Dr Labrom's report also stated that Ms Gray "advised the ERT captain that the spinal cord stimulator was 'a normal thing for her' …"[111]

Injury report at the scene

  1. [96]
    Ms Doncilapop's evidence was that Ms Gray said she had "jarred her neck or back against the seatbelt"[112] and reported a "moderate"[113] level of pain of "four out of ten."[114]  It was put to Ms Doncilapop that Ms Gray's measured report indicated she was not exaggerating her pain,[115] and I agree with that conclusion.  Ms Doncilapop's performed some limited examination of Ms Gray's hands and feet,[116] upon her arrival at the scene.  Ms Doncilapop did not examine Ms Gray's neck.[117]  Ms Doncilapop is not a health care professional, so any results of her assessment cannot be given much weight. 
  1. [97]
    In a witness statement provided by Ms Doncilapop's to the investigation that followed, she recounted that Ms Gray had wanted to be "taken to the front, which means the administrative area, where the first aid room is located as well and she wants her neck checked…While I was asking more questions about her state and while attempting to obtain information about her vital signs, Sandy became increasingly more distressed and asked repetitively to be taken up front."[118]
  1. [98]
    I believe Ms Gray was subject to a jolting force during the truck's 30 second unloading phase and that she suffered an injury as a result. 

After the emergency was called

  1. [99]
    Ms Gray's device caused Ms Doncilapop concern because it indicated a medical condition they were not equipped to deal with.[119] 
  1. [100]
    As Ms Doncilapop appropriately conceded, she conferred with others on the ERT and they together decided to call an emergency because "I knew our level of training.  We are first aiders and I knew that none of us in our crew have been trained to deal with that … We have not received training to deal with that and I was afraid that not being trained properly to deal with that will cause more harm, so I decided to call an emergency and bring an ambulance, professionals, onsite to deal with her."[120]
  1. [101]
    Ms Doncilapop's evidence was that calling an emergency made Ms Gray extremely distressed.  Ms Gray asked her "Oh, why did you call it?  Why did you call it?  And I said, look, Sandy, we need to call it because we can't move you from here in – in a proper way and we can't look after you properly.  We need medical assistance to come and deal with you.  And she said, no, I just wanted you to take me up front.  Now it's going to be so big.  I'm going to make it big …"[121]
  1. [102]
    The witnesses concur that Ms Gray's distress became more heightened at that point.  The fear expressed by Ms Gray that the situation was about "to go big",[122] underscore Ms Gray's concern about losing her job was a reason she continued work in the hope that the pain would resolve itself. 
  1. [103]
    Ms Gray then began exhibiting some "weird" behaviour, that Mr Barrett's evidence characterised as dramatic or theatrical.[123]  I have a different view of the matter.  It appears to me more probable that Ms Gray was in genuine pain because her expression of pain was different to what may usually be expected.  If Ms Gray were putting on an act, that surely would have been more consistent with the traditional presentation of a pain experience.  There may be many psychological explanations for Ms Gray's inappropriately unusual responses to colleagues around her. However, such inquiries were not made of the medical experts at the Hearing and no witnesses were called to provide evidence as to a psychiatric explanation for that occurrence.  I have considered the issue only to the extent that I have concluded such unusual presentation does not mean Ms Gray was not in genuine pain. 

Was Ms Gray injured?

  1. [104]
    Thiess asserts Ms Gray was not injured as a result of the truck's mechanical failure because the operational data revealed no abnormalities that would be consistent with the severe jolting described.  Thiess' argument is that Ms Gray had a pre-existing condition that was causing her pain.  If that were true, there is a remarkable coincidence in the timing of the truck's clear mechanical failure and the entirely separate onset of a worsening of Ms Gray's medical condition.  Acceptance of the Thiess' view of the matter requires putting aside the medical clearances obtained from three separate doctors, attesting to Ms Gray's fitness to work at the mine without restrictions.  It also ignores that Ms Gray was working an overtime shift on the day in question – an unusual choice, if a person was suffering pain.  There are several insurmountable hurdles in the adoption of that view of the facts and circumstances of this case.
  1. [105]
    On the other hand, it is undisputed that there was a mechanical failure on the truck Ms Gray was driving.  I have found Ms Gray alluded to pain caused by the severe jolting on the radio to Mr Wockner.  The evidence confirms Ms Gray reported neck pain to Ms Doncilapop and Mr Hart at the scene, very soon afterwards.  Ms Gray's pain was such it could not be controlled with the surgically implanted stimulator.  An emergency was called, resulting in work ceasing at the mine site for about an hour and a half, at "significant expense" to the company.  Health professionals attended to safely transfer Ms Gray for medical treatment.  I cannot believe those actions would have been taken if there was any sense Ms Gray's pain was not genuine.
  1. [106]
    As earlier noted, Ms Gray's initial indication to Ms Doncilapop of a "moderate" pain level supports the view she was not exaggerating her injury.
  1. [107]
    I am satisfied that, on the balance of probabilities, it is more likely that Ms Gray was injured by the severe jolting of the truck – than any remarkable coincidence that her medical condition so markedly degenerated, so close to that event of the hydraulic strut break.

Did Ms Gray sustain an injury as a result of workplace incident?  If so, what was the injury? 

and

Was Ms Gray's employment a significant contributing factor to the injury?

Appellant's position

  1. [108]
    Thiess "deny that Ms Gray's alleged neck injury arose out of her employment and maintain that her neck condition is entirely pre-existing.[124]
  1. [109]
    The Appellant's position is that Ms Gray had a pre-existing injury that was deteriorating,[125] as reflected in various medical consultation records and continuing prescription of pain relieving medication.[126]  The Appellant says that the pain caused by Ms Gray's underlying condition was not being controlled by the stimulator.[127]
  1. [110]
    The Appellant concluded that Ms Gray:
  1. … has not suffered any permanent injury or aggravation in the incident;
  1. … suffered an amplification of pain because of a jolt she suffered in the incident;
  1. the symptoms of pain are causally related to Ms Gray's underlying condition; and
  1. Ms Gray's presentation deteriorated after the emergency was called, which can be explained by the stress she was feeling because of the emergency being called, and related to her overall life experience.[128]

Respondent's position

  1. [111]
    The Regulator referred to the medical opinion of Dr Keys, that Ms Gray suffered a new axial facetogenic injury, separate from her pre-existing brachialgia, which occurred as a result of an acceleration/deceleration event."[129]
  1. [112]
    Dr Keys diagnosed Ms Gray as having sustained "non-specific axial facetogenic neck pain with referred right arm pain, likely derived from the right C2/3 and/or C3/4 facet joints and C5/6 discogenic pain", in a medical report dated 13 December 2022.[130] 
  1. [113]
    The Respondent asserted Ms Gray's account of being severely jolted back and forth, immediately causing her to feel a sharp pain in her neck, is consistent with the medical evidence.[131] 
  1. [114]
    With respect to the nature of Ms Gray's injury, the Respondent submitted that:

… Ms Gray sustained a new personal injury, that being a work-related musculo-ligamentous strain to her cervical spine which was a different injury to her pre-existing condition of the brachialgia.

In the alternative … Ms Gray has sustained a work-related aggravation of her pre-existing injury in the incident of 4 May 2022.[132]

  1. [115]
    The Respondent's position is that Ms Gray suffered a new injury that is separate from the pre-existing brachialgia condition.

Consideration

  1. [116]
    The Appellant's assertion here that Ms Gray "suffered an amplification of pain [causally related to her pre-existing brachialgia condition] because of a jolt she suffered in the incident" appears at odds with its earlier strenuous denials that the truck's mechanical failure (or any other cause) had impacted Ms Gray, as driver of the vehicle.  The Appellant earlier argued that "there were no abnormal movements in the truck" and "the data analysis does not identify any abnormal or significant jolt of the truck". 

Medical records

  1. [117]
    A comprehensive chronology of medical attendances[133] was provided to assist the Commission. 
  1. [118]
    Particular note has been made of the Appellant by Ms Gray's attendance on her GP on 24 February 2022, in which Dr Harris noted she was "in a lot of pain again" and shortly after that she had lost a lot of weight.  The most reasonable explanation would be that referred to the stimulator.  Similarly, that consultation note stated that Ms Gray was "finding work hard" and then immediately followed with a suggestion of referral to a psychiatrist for "??? PTSD" and mention of possible assistance from victims of crime with respect to "security windows etc."  I have interpreted that information to mean that Ms Gray was in some psychological distress in the weeks leading up to the workplace incident.  Certainly, her physical ability to perform her work at the mine was not affected, given her good attendance, continued ability to work the rostered shifts, and undertake overtime shifts beyond that required of her.

Dr Forbes, Dr Hattingh and Dr McCartney – No restrictions on resumption of work at the mine

  1. [119]
    In July to August 2020, Ms Gray was ready to go back to work at the mine. 
  1. [120]
    She consulted Dr Angus Forbes, Occupational and Environmental Physician, Dr Forbes' IME report provided that Ms Gray's "cervical spine was normal, with no visible deformity, erythema or swelling and she had a full range of motions in all directions.  There was no asymmetry of movement, muscular spasm or guarding."[134] 
  1. [121]
    Dr Forbes cleared Ms Gray to return to work at the mine.
  1. [122]
    Ms Gray was also cleared for work by a Thiess pre-employment medical assessment conducted by Dr Hattingh from CQ Workfit.  Dr Hattingh found the Ms Gray's "musculoskeletal including her cervical and lumbar spine … were found to be normal … [and a focussed assessment of her] Cervical Spine was undertaken which included specific focus on her range of movement which was all clear."[135]
  1. [123]
    Those medical assessments were performed in August 2020.  Though Ms Gray had honestly disclosed the relevant history of the violent assault upon her, Doctors Forbes and Hattingh each separately held her range of movement to be normal.
  1. [124]
    Ms Gray was also certified fit for work by Dr McCartney.[136]

QAS

  1. [125]
    The QAS records of the incident state Ms Gray was in "moderate distress" and reported "she was jolted back and forth feeling pain in neck" and that examination of her cervical spine resulted in "pain on palpation."[137]

Dr Kheo

  1. [126]
    An examination of Ms Gray was conducted at the Mackay Base Hospital when she was admitted straight after the workplace incident. 
  1. [127]
    Dr Keys was updated with the findings and cervical spine images taken, then cleared Ms Gray for discharge from the hospital.[138] 

Dr Kahler

  1. [128]
    Dr Kahler reviewed Ms Gray shortly after the workplace incident, on 15 May 2022.  Ms Gray had been "admitted for management of acute neck pain … she had no arm symptoms … This occurred on a background of a cervical stimulator performed in January 2020 for right arm pain."[139] 
  1. [129]
    Dr Kahler suggested he would manage Ms Gray as "an acute strain work-related aggravation for her condition ..."[140] 
  1. [130]
    Dr Kahler's assessment of the scans was that "The CT showed no acute cause for the symptoms and SPECT scan showed no increased uptake."[141] 

Dr Labrom

  1. [131]
    Dr Labrom is a Consultant Orthopaedic Spinal Surgeon and Associate Professor at the University of Queensland.[142] 
  1. [132]
    Dr Labrom has been practicing for 24 years.[143]  His opinion was formed without the benefit of physical examination of Ms Gray, though Dr Labrom was provided with an extensive brief of several hundred pages of "clinical contacts and medical records."[144]
  1. [133]
    Dr Labrom stated that the results of Ms Gray's CT scan on 13 May 2022 and "NM Bone Scan"[145] on 16 May 2022 (both proximate to the incident of 4 May 2022) "reveal no clear evidence of facet joint arthropathy, discogenic degeneration, fracture, nor dislocation."  Dr Labrom explained that there were "no increased 'hot spots' that would be easily correlated to the complaints of pain, nor likelihood of acute injury to the soft tissue muscles, intervertebral discs, and particularly, to the facet joints in the cervical spine, noting the potential diagnosis made by her treating pain specialist of a facet joint strain injury."[146] 
  1. [134]
    Dr Labrom's report responded to several questions put to him by the Appellant's legal representative.  Those questions present to Dr Labrom as fact that there was "no injury or event reported at the time" with the truck.[147]  I have disturbed that bald assertion earlier in this decision, instead finding that there was a severe jolting force as described by Ms Gray.  The unfortunate, and perhaps unfair, phrasing of the questions put to Dr Labrom for his response in the report minimises what occurred in the workplace incident and the impact on Ms Gray.  One example is where Dr Labrom was asked to provide opinion as to: "Your diagnosis and cause of the current flare up, noting no injury or event was reported at the time."  In my view, "the current flare up" inaccurately minimises the impact of the accident on Ms Gray.  Further, it is uncontested that Ms Gray reported her injury to Mr Wockner upon alighting the truck – perhaps some 10-15 minutes after she felt the severe jolting force during the dump process.  Finally, there clearly was an "event" because a broken piece of the truck was dragging along behind it, making rivets in the road.  Without the clear benefit of himself conducting a physical examination of Ms Gray, with the associated opportunity to ask her about the matter, Dr Labrom reply to the question was prefaced with "… Duly noting the benign description of an incident where this lady was driving a dump truck on 4 May 2022, with a paucity of any specific jolting or forceful movement effecting her spine, it remains difficult for me to easily understand through a biomechanical description of forces how this person has suffered any organic injury of a permanent nature to the cervical spine as a direct result of activity on 4 May 2022, is my opinion …"[148]
  1. [135]
    Dr Labrom's report concluded that Ms Gray's symptoms "are explained by her underlying condition, not any specific injury occurring at work."[149]
  1. [136]
    At the Hearing, Dr Labrom was more circumspect about the Investigation Report, specifically the reliance on the Liebherr input.  Dr Labrom appeared to move from his earlier view that there was a "paucity of any specific jolting or forceful movement", to a state where he "had no reason to disbelieve that the event occurred, that Ms Gray walked away from the truck in pain, in a situation amplified compared to what would be her fluctuating baseline, that has been strongly represented and reported over many months and years before this incident."[150]
  1. [137]
    Dr Labrom did not go as far as to opine that Ms Gray suffered an aggravation of her pre-existing condition, but rather that there was "an exacerbation and amplification" of it.[151]

Dr Keys

  1. [138]
    Ms Gray became a patient of Dr Keys in about December 2019.  Dr Keys first commenced treatment of Ms Gray "for right arm brachialgia (right arm pain) secondary to an assault …"[152] 
  1. [139]
    A few months later, a stimulator was surgically implanted in February 2020.[153]  Ms Gray reported that was successful in addressing her pain symptoms.[154]  However, the stimulator had to be re-sited as the device itself had caused back pain, due to infection.[155]
  1. [140]
    Ms Gray's condition stabilised under Dr Keys' care, such that she was ready to return to work at the mine.  As noted above, Ms Gray was medically cleared to do so by Dr Forbes, Dr Hattingh and Dr McCartney some 5-6 months after the stimulator was re-sited. 
  1. [141]
    Dr Keys implemented an annual review for Ms Gray.  In 2021, Ms Gray reported "occasional neuropathic twinges around the right buttock from the IPG …" Though that was not unusual in a patient with a stimulator implant.  As Ms Gray was not in significant pain, Dr Keys prescribed a low dose of Tramadol "to assist her in dealing with some minor twinges of pain at the IPG and into the right upper limb."[156]
  1. [142]
    At the second annual review in February 2022, Ms Gray reported "an increase in stress and neuropathic descriptors in the upper limb", that could be "tingling, numbness, stinging or pain".  As that was not causing significant pain or discomfort, Dr Keys prescribed only a low dose of prescription medication.[157]
  1. [143]
    The day after the workplace incident, Dr Keys advised Dr Kheo to discharge Ms Gray from hospital, on the basis that she would attend a consultation with him the following week.[158]  Dr Keys then arranged for Ms Gray to be admitted to a hospital located in Brisbane, shortly thereafter.[159]
  1. [144]
    As her treating doctor, Dr Keys had diagnosed Ms Gray with an entirely new injury (neck pain from whiplash) that was caused by the workplace incident on 4 May 2022.  That new injury was separate from, and different to, the pre-existing condition (right arm pain) caused by the violent assault some years earlier.  The brachialgia condition was "a neuropathic pain that travelled down the arm", the new injury "involves disc or facet joint or muscular tenderness."  Dr Keys thus concluded that "It was extremely unlikely for there to be a correlation between the two injuries/pains Ms Gray had experienced."[160]
  1. [145]
    Specifically, Dr Keys opined that the new injury was "axial neck pain caused by an acceleration/deceleration event and involved a different area of the cervical spine (that is, a whiplash injury).  Prior to that, A/Prof Keys was treating Ms Gray for right arm pain (brachialgia), a neuropathic pain that travelled down the arm.  Axial pain is different and involves disc or facet joint or muscle tenderness.  It was extremely unlikely for there to be a correlation between the two injuries/pains Ms Gray had experienced." 
  1. [146]
    With respect to any discrepancy between Ms Gray's pain and the scans, Dr Keys explained that "patients can, and often do, report severe chronic pain even when there is no clear pathology seen on conventional imaging modalities such as X-rays, MRI and CT scans."[161]  Dr Keys further noted that it is wrong to conclude that "the absence of observable pathology on cervical imaging implies that a patient cannot experience axial neck pain following an injury … 'whiplash' often result in axial neck pain … Conventional imaging modalities like CT or MRI might not always identify these soft tissue injuries or subtle joint changes, particularly in the early phases after an injury … a negative imaging result does not equate to the absence of injury or pain."[162]
  1. [147]
    I prefer the evidence of Dr Keys to that provided by Dr Labrom because:
  • Dr Keys accepted Ms Gray's account that she had experienced a significant jolt in the workplace incident.[163]  Whereas Dr Labrom's report referred to the "benign description of an incident … with a paucity of any specific jolting or forceful movement effecting her spine …"[164] – based upon the Appellant's account of the workplace incident, that differs from what I have found to have occurred.
  • Dr Labrom was at a significant disadvantage, compared with Dr Keys, because he had not examined Ms Gray.  The documents provided to Dr Labrom did not overcome that impediment.  Though I note Dr Labrom had the opportunity to correct his report, with respect to the reference to an "MRI scan", that indicated he was not as familiar with Ms Gray's case as Dr Keys, her treating medical practitioner.
  • Dr Keys has been Ms Gray's treating medical practitioner for several years.  Having first seen Ms Gray as a patient with respect to her first injury, he is best placed to discern the differences in comparison between her previous presentation and her condition after the 4 May 2022 workplace incident.
  • With respect to the pain medication prescribed to Ms Gray, Dr Labrom confirmed 50mg of tramadol is a low dose, though indicates "a significant underlying condition."[165]  With reference to the medical chronology,[166] it is noted that Ms Gray was prescribed that medication for various reasons including but not limited to such things as surgeries for stimulator implant and re-site, knee operation, fall off motorbike.
  • Dr Keys diagnosed Ms Gray with an entirely new injury – with symptoms of neck pain, not arm pain.[167]  Dr Keys considered it "extremely unlikely" there was a correlation between the two different injuries or conditions.[168]  On the other hand, Dr Labrom's report referred to Ms Gray's "long history of neck pain."[169] That was incorrect because Ms Gray had in fact suffered "a history of right arm pain (brachialgia), and the stimulator was implanted to treat referred arm pain."[170]
  • Dr Keys is a "specialist pain and medicine physician specialising in treating people who have pain which has been present for beyond expected healing or which has been present for greater than three to six months …"[171]  Dr Keys explained that "even a minor whiplash event can cause axial pain without obvious radiological findings supporting the existence of the injury."[172]  I have accepted Dr Keys' evidence that there is some injuries and pain that are not shown on scans.[173]
  1. [148]
    For all those reasons, I am persuaded on the balance of probabilities that Ms Gray did indeed suffer a new injury as diagnosed by Dr Keys, that is a "whiplash type Musculo-ligamentous injury to her neck."[174]

Work was a significant contributing factor to Ms Gray's injury

  1. [149]
    As I have found that Ms Gray suffered a new injury as a result of the workplace incident on 4 May 2022, work was a significant contributing factor to the injury.  Her pre-existing condition had not prevented her from being medically cleared for work at the mine by three doctors prior to her commencement with Thiess.  Ms Gray's work attendance and capacity to perform the work since her employment raised no red flags that would point to the problem being caused by the pre-existing brachialgia.
  1. [150]
    Ms Gray's evidence was that she had no difficulty completing the 7 day on / 7 day off roster pattern or 12.5 hour shift length as allocated.[175]  The work involved driving heavy machinery over rough terrain, over continuous circuits.  The loading and unloading process could be rough.  The driver may be "jostled and sometimes heavily jolted."[176]  Notwithstanding that, Ms Gray had signed up for an extra overtime shift on 4 May 2022.  It stands to reason that if she was having trouble coping with the physical demands of the work, she would have taken her rest day as rostered.
  1. [151]
    The sick leave Ms Gray did access was due to an unrelated knee injury and surgeries to relocate the battery for the nerve stimulator – Ms Gray did not access sick leave as a result of any ongoing pain from the pre-existing condition.  Ms Gray's annual appraisals recorded "very good performance … for safety, absenteeism and production."[177] 
  1. [152]
    That was supported by Ms Gray's former supervisor, Mr Stainkey, who confirmed Ms Gray had "no history of unexplained absenteeism" and "no difficulty working that roster and those shifts".  Mr Stainkey said Ms Gray was a reliable worker, honest person and a safe operator.[178] 
  1. [153]
    Mr Stainkey did recall Ms Gray reporting back pain to him on several occasions, though the Respondent contended that "appeared to be related to her weight loss giving rise to pain from the battery located in her lower back (which would appear to be consistent with the contemporaneous medical records from 2020-2021 from the James Street Medical Centre)."[179] 
  1. [154]
    For all those reasons, the Respondent asserted that Ms Gray and Mr Stainkey's evidence shows Ms Gray was "not significantly impacted in her role as a machine operator at Thiess by the pre-existing injury" – and therefore that the Appellant's assertion that Ms Gray suffered from a continuing injury is "inherently implausible".[180] 
  1. [155]
    I am persuaded by those arguments.  It was the workplace incident on 4 May 2022 that caused Ms Gray's new injury.

Costs

  1. [156]
    In light of my conclusions above, an order will be made in favour of the Respondent. The Respondent's review decision of 24 November 2022 is upheld.  I will now consider the issue of costs.
  1. [157]
    In Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2),[181] Justice Davis considered the issue of costs in a Workers' Compensation Appeal and relevantly stated the following (citations removed):

[16] The power to award costs under s 558 of the WCR Act is not limited like the power to award costs given by s 545 of the IR Act.   It therefore follows that costs ought ordinarily follow the event.   While costs would normally follow the event of the appeals to the QIRC, there is a discretion to make some other costs order.  In Davidson v Blackwood, the point is made that in the absence of any reasons to make any other costs order, costs follow the event.  That does not remove the discretion to make some other order and does not extinguish the necessity to give reasons why any costs order was made…

…

  1. [1]
    Section 558 provides as follows:

"558 Powers of appeal body

  1. In deciding an appeal, the appeal body may—
  1. confirm the decision; or
  1. vary the decision; or
  1. set aside the decision and substitute another decision; or
  1. set aside the decision and return the matter to the respondent with the directions the appeal body considers appropriate.
  1. If the appeal body acts under subsection (1)(b) or (c), the decision is taken for this Act, other than this part, to be the decision of the insurer.
  1. Costs of the hearing are in the appeal body's discretion, except to the extent provided under a regulation." (emphasis added)
  1. [2]
    By s 558(3), what is "in the appeal body's discretion" (here the QIRC ) are the "costs of the hearing".  The "costs of the hearing" may be quite a different thing to the "costs of the appeal".
  2. [3]
    The power to award costs is not a common law power.  It is one granted by statute.  Consequently, if the QIRC does not have a power vested by statute to award costs of the appeal beyond the costs of the hearing, then it cannot do so.

…

  1. [4]
    However, the QIRC's only power to award costs in this case probably comes from the WCR Act, not restricted by s 545 of the IR Act.  In determining the proper construction of s 558(3), and in particular the meaning of the term "costs of the hearing", regard must be had to the context and purpose of the section having regard to the statute as a whole.
  2. [5]
    In my view, the legislature has clearly deliberately limited the costs which can be recovered on an appeal to the QIRC.  It has drawn a clear distinction between different parts of the appeal process.  While the legislation envisages that the appeal process may involve a conference, no power to award costs associated with a conference is given.  The costs are limited to the "costs of the hearing".
  3. [6]
    The law of costs recognises "costs of action" and "costs of trial".  In my view, they equate to "costs of appeal" and "costs of hearing" respectively.  The distinction is explained by Professor Dal Pont in his work Law of Costs in these terms:

"1.19 An order for 'costs of the action' includes not only costs of the trial but also those of interlocutory proceedings and their preparation (such as costs relating to interrogatories, notices to produce and admit and preparation of counsel's brief). These represent the costs to which the successful party in the action is entitled on taxation or assessment, in the absence of an order to the contrary. The 'costs of the trial' cover only the costs incurred in the conduct of the trial itself, not any interlocutory matters preceding the trial. In any case, as an action ends with judgment, each of these orders excludes costs incurred after final judgment. Costs of executing the judgment are therefore not costs of the action (or of the trial) but are payable of the execution."

  1. [7]
    I accept that distinction.  I consider that the term "costs of the hearing" in s 558(3) is equivalent to "costs of trial" recognised by the law of costs and explained by Professor Dal Pont.
  2. [8]
    Consequently, when the QIRC is exercising a discretion under s 558(3) of the WCR Act, the order which should be made is not "costs of the appeal" but "costs of the hearing" and costs assessors should assess the "costs of the hearing" as they would "costs of trial" as explained by Professor Dal Pont.
  1. [158]
    Section 132(1) of the Workers' Compensation and Rehabilitation Regulation 2014 (Qld) provides that "A decision to award costs of a proceeding heard by an industrial magistrate or the industrial commission is at the discretion of the magistrate or commission."
  1. [159]
    I accept that costs in Workers' Compensation Appeals ordinarily follow the event. Had the Appellant not initiated this proceeding, the Respondent would not have incurred the expense which it did during the hearing of this matter. An award of costs in favour of the Respondent is reasonable and appropriate, not to punish the Appellant for initiating the proceeding but rather out of fairness to the Respondent in ensuring appropriate indemnification. For those reasons, a costs order will be made in favour of the Respondent.
  1. [160]
    For the reasoning outlined in Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2),[182] the Appellant will only be required to pay the "costs of the hearing" rather than the "costs of the appeal".
  1. [161]
    I order accordingly.

Orders

1. The appeal is dismissed.

2. The Respondent's review decision of 24 November 2022 is confirmed.

3. The Appellant is to pay the Respondent's costs of the hearing, to be agreed or, failing agreement, to be subject to a further application to the Commission.

Footnotes

[1] Appellant's Statement of Facts and Contentions filed 10 March 2023, [3].

[2] 15 June 2022; Appellant's Statement of Facts and Contentions filed 10 March 2023, [46].

[3] 9 September 2022; Appellant's Statement of Facts and Contentions filed 10 March 2023, [47].

[4] 24 November 2022; Appellant's Statement of Facts and Contentions filed 10 March 2023, [48].

[5] Appellant's Statement of Facts and Contentions filed 10 March 2023, [5]-[6].

[6] Ibid [9].

[7] Doctor Angus Forbes, Dr Dewald Hattingh and Dr McCartney; Appellant's Statement of Facts and Contentions filed 10 March 2023, [11]-[14]; Respondent's Statement of Facts and Contentions, filed 21 April 2023, [2].

[8] Respondent's Statement of Facts and Contentions filed 21 April 2023, [2].

[9] Appellant's Statement of Facts and Contentions filed 10 March 2023, [11]-[14].

[10] Ibid [17]-[26].

[11] Appeal Notice filed 21 December 2022, Attachment 1, 1.

[12] Ibid 2.

[13] Ibid.

[14] Ibid 1.

[15] Ibid.

[16] Workers' Compensation and Rehabilitation Act 2003, current as at 1 July 2020.

[17] Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031, [27]; State of Queensland (Queensland Health) v Q–Comp and Beverley Coyne (2003) 172 QGIG 1447.

[18] State of Queensland (Queensland Health) v Q-COMP and Beverely Coyne (2003) 172 QGIG 1447; SPE Pty Ltd v Q-COMP and Gary Clifford Fuller [2010] ICQ 32; Appellant's closing submissions filed 3 July 2024, [12]

[19] [2019] QIRC 203. 

[20] Ibid [101], citing Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262, [136]. 

[21] Mention Transcript 19 October 2023, T 1-2, lines 20-33.

[22] Appellant's closing submissions filed 3 July 2024, [15].

[23] Respondent's closing submissions filed 5 August 2024, [5].

[24] Appellant's Statement of Facts and Contentions filed 10 March 2023, Schedule 2, [4a].

[25] WCR Notice of Appeal filed 21 December 2022, 3.

[26] Ibid Attachment 1, 10.

[27] Appellant's Statement of Facts and Contentions filed 10 March 2023, [27].

[28] Ibid.

[29] WCR Notice of Appeal filed 21 December 2022, 3.

[30] Appellant's Statement of Facts and Contentions filed 10 March 2023, [28].

[31] Ibid [27]-[28].

[32] Appellant's Statement of Facts and Contentions, filed 10 March 2023, Schedule 1, [28].

[33] Ibid [31].

[34] WCR Notice of Appeal filed 21 December 2022, 4.

[35] Respondent's Statement of Facts and Contentions filed 21 April 2023, [8].

[36] Ibid [9].

[37] Ibid [14].

[38] Ibid [16].

[39] Appellant's Statement of Facts and Contentions filed 10 March 2023, [44].

[40] Ibid [27]-[28].

[41] WCR Notice of Appeal filed 21 December 2022, 4.

[42] WCR Notice of Appeal filed 21 December 2022, 3.

[43] Ibid Attachment 1, 2.

[44] Respondent's Statement of Facts and Contentions filed 21 April 2023, [18].

[45] WCR Notice of Appeal filed 21 December 2022, 4.

[46] WCR Notice of Appeal filed 21 December 2022, 3.

[47] Appellant's Statement of Facts and Contentions filed 10 March 2023, Schedule 2, [3].

[48] Ibid Schedule 1, [34]-[35].

[49] Ibid [36]-[37].

[50] Ibid [37].

[51] Ibid [37].

[52] Appellant's Statement of Facts and Contentions filed 10 March 2023, Schedule 1, [37].

[53] Ibid [38].

[54] Ibid.

[55] Ibid.

[56] Ibid.

[57] Respondent's Statement of Facts and Contentions filed 21 April 2023, [30].

[58] Ibid [16].

[59] Ibid.

[60] Ibid.

[61] Respondent's Statement of Facts and Contentions filed 21 April 2023, [17].

[62] Ibid [32].

[63] WCR Notice of Appeal filed 21 December 2022, Attachment 1, 10.

[64] https://www.flyability.com/blog/overburden.

[65] T 3-17, line 1.

[66] T 3-16, lines 5-7.

[67] T 3-16, lines 10-49.

[68] WCR Notice of Appeal filed 21 December 2022, 3.

[69] Exhibit 2, photographs 240 and 241; T 2-25, lines 25-30; Respondent's closing submissions filed 5 August 2024, [7].

[70] T 2-25, lines 4-5; T 2-25, lines 35-41.

[71] WCR Notice of Appeal filed 21 December 2022, Attachment 1, 2.

[72] Appellant's closing submissions filed 3 July 2024, [8].

[73] T 2-44, lines 46-47.

[74] T 2-45, lines 15-19.

[75] T 2-45, lines 21-22.

[76] T 1-44, line 39.

[77] T 1-44, lines 36-41.

[78] T 3-28, line 35 to T 3-29, line; Appellant's closing submissions filed 3 July 2024, [61].

[79] T 1-28, lines 1-13.

[80] T 1-27, lines 18-43.

[81] T 1-29, lines 13-14.

[82] T 1-29, lines 1-44.

[83] T 1-38, line 46.

[84] T 1-39, lines 1-21.

[85] T 2-65, line 47.

[86] T 2-26, lines 3-17.

[87] T2-22, lines 28-35; T2-23, lines 24-31; Respondent's closing submissions filed 5 August 2024, [75].

[88] T 4-10, lines 24-34; T 4-12, lines 44-45; Respondent's closing submissions filed 5 August 2024, [81].

[89] Exhibit 1, page 587 -; Respondent's closing submissions filed 5 August 2024, [83].

[90] T 4-23, lines 1-45; Respondent's closing submissions filed 5 August 2024, [84].

[91] T 4-24, lines 1-10; T4-25, lines 24-29; T4-27, lines 9-16; Respondent's closing submissions filed 5 August 2024, [85].

[92] Exhibit 1, 579; T 4-23, T4-24, lines 1-23; T4-25, lines 9-25; T4-27, lines 9-19; Respondent's closing submissions filed 5 August 2024, [7].

[93] Exhibit 2, pg 240 – 241; T 2-25, lines 25-30; T 2-25, lines 4-5; T 2-25, lines 35-41; Respondent's closing submissions filed 5 August 2024, [7]

[94] Exhibit 1, Investigation Report; T4-24, lines 15-22; Respondent's closing submissions filed 5 August 2024, [7].

[95] Exhibit 1, pg 579; T4-23, lines 38-46; T4-24, lines 1-10; T4-25, lines 27-29; Respondent's closing submissions filed 5 August 2024, [7].

[96] Exhibit 4, fig 5; T4-24, lines 24-47; T4-25, lines 1-25; Respondent's closing submissions filed 5 August 2024, [7].

[97] T 4-17, lines 10-15; Respondent's closing submissions filed 5 August 2024, [71].

[98] T 2-31, lines 20-23; Respondent's closing submissions filed 5 August 2024, [72].

[99] Respondent's closing submissions filed 5 August 2024, [77].

[100] T 3-64, lines 40-45.

[101] Respondent's closing submissions filed 5 August 2024, [90].

[102] Ibid [7].

[103] T 3-19, lines 21-34.

[104] T 2-66, lines 38-39.

[105] T 2-63, lines 25-29.

[106] T 1-20, line 46.

[107] T 2-7, lines 35-46.

[108] T 2-8, lines 14-18.

[109] T 2-8, lines 1-15.

[110] T 2-44, line 23.

[111] Exhibit 1, page 37.

[112] T 1-12, line 40.

[113] T 1-19, line 46.

[114] T 1-19, line 35.

[115] T 1-20, lines 36-39.

[116] T 1-13, lines 9-35.

[117] T 1-20, lines 20-34.

[118] T 1-24, lines 4-13.

[119] T 1-14, lines 18-21.

[120] T 1-14, lines 27-33.

[121] T 1-14, lines 42-47; T 1-15, lines 1 2

[122] T 1-14, lines 40-45; T 1-15, lines 15-20.

[123] T 2-9, lines 15-40; T1-15, lines 15-20; Appellant's closing submissions filed 3 July 2024, [65].

[124] WCR Notice of Appeal filed 21 December 2022, 3.

[125] Appellant's closing submissions filed 3 July 2024, [73].

[126] Ibid [52]-[54].

[127] Ibid [55].

[128] Ibid [118].

[129] WCR Notice of Appeal filed 21 December 2022, Attachment 1, 4; Respondent's Statement of Facts and Contentions, filed 21 April 2023, [31].

[130] Respondent's Statement of Facts and Contentions filed 21 April 2023, [27].

[131] WCR Notice of Appeal filed 21 December 2022, Attachment 1, 2.

[132] Respondent's submissions filed 5 August 2024, [9], [122]-[123].

[133] Filed 5 August 2024.

[134] Respondent's closing submissions filed 5 August 2024, [18].

[135] Exhibit 1, 90; Respondent's closing submissions filed 5 August 2024, [19].

[136] Exhibit 1, 51.

[137] Exhibit 1, 505; Respondent's submissions filed 5 August 2024, [8].

[138] Exhibit 1, 445.

[139] Exhibit 1, 250.

[140] Exhibit 1, 250; Appellant's closing submissions filed 3 July 2024, [106].

[141] Exhibit 1, 250.

[142] Exhibit 1, 36

[143] Appellant's closing submissions filed 3 July 2024, [77].

[144] Exhibit 1, 36.

[145] Exhibit 3, [10].

[146] Exhibit 1, 38.

[147] Exhibit 1, 38-39.

[148] Exhibit 1, 38-39.

[149] Exhibit 3, [4].

[150] T 3-64, lines 35-45; Appellant's closing submissions filed 3 July 2024, [105].

[151] Appellant's closing submissions filed 3 July 2024, [106].

[152] Exhibit 1, 44.

[153] Respondent's closing submissions filed 5 August 2024, [16].

[154] Exhibit 1, 44, 196.

[155] Exhibit 1, 189-193.

[156] Exhibit 1, 44.

[157] Exhibit 1, 45.

[158] Exhibit 1, 45.

[159] Exhibit 1, 45.

[160] Exhibit 1, 45.

[161] Exhibit 1, 45.

[162] Exhibit 1, 46.

[163] Exhibit 1, 45.

[164] Exhibit 1, 39.

[165] Exhibit 3, [2].

[166] Filed 5 August 2024.

[167] Exhibit 1, 45.

[168] Exhibit 1, 45.

[169] Exhibit 1, 38.

[170] Exhibit 1, 47.

[171] T 3-74, lines 15-18.

[172] Exhibit 1, 45.

[173] Exhibit 1, 47.

[174] Respondent's closing submissions filed 5 August 2024, [9].

[175] Ibid [22]-[29].

[176] Ibid [32]-[33].

[177] Ibid [22]-[29].

[178] Respondent's closing submissions filed 5 August 2024, [28].

[179] T 2-67, lines 24-30; Respondent's closing submissions filed 5 August 2024, [29].

[180] Respondent's closing submissions filed 5 August 2024, [30]-[31].

[181] [2021] ICQ 13.

[182] [2021] ICQ 13.

Close

Editorial Notes

  • Published Case Name:

    Thiess Pty Ltd v Workers' Compensation Regulator

  • Shortened Case Name:

    Thiess Pty Ltd v Workers' Compensation Regulator

  • MNC:

    [2025] QIRC 101

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    14 Apr 2025

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
Church v Workers' Compensation Regulator [2015] ICQ 31
2 citations
Jump To
Cite 1 - [2015] ICQ 31
Cite 2 - [2015] ICQ 31
Davidson v Blackwood [2014] ICQ 8
1 citation
Jump To
Cite 1 - [2014] ICQ 8
Ribeiro v Workers' Compensation Regulator [2019] QIRC 203
2 citations
Jump To
Cite 1 - [2019] QIRC 203
Cite 2 - [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
SPE Pty Ltd v Q-COMP and Gary Clifford Fuller [2010] ICQ 32
2 citations
Jump To
Cite 1 - [2010] ICQ 32
Cite 2 - [2010] ICQ 32
State of Queensland v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447
3 citations
Jump To
Cite 1 - (2003) 172 QGIG 1447
Cite 2 - (2003) 172 QGIG 1447
Cite 3 - (2003) 172 QGIG 1447
Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2) [2021] ICQ 13
3 citations
Jump To
Cite 1 - [2021] ICQ 13
Cite 2 - [2021] ICQ 13
Cite 3 - [2021] ICQ 13

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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