Burton v Workers' Compensation Regulator [2021] QIRC 437

Avis v WorkCover Queensland [2000] QIC 67; (2000) 165 QGIG 788

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

Heald v Q-Comp [2004] QIC 74; (2004) 177 QGIG 769

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

Kavanagh v The Commonwealth [1960] HCA 25; (1960) 103 CLR 547

Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48; (2006) 1 Qd R 519

Omanski v Q-Comp [2013] ICQ 7

Ribeiro v Workers' Compensation Regulator [2019] QIRC 203

Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262

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

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

Theiss Pty Ltd v Q-Comp [2010] ICQ 27

Mr T. Nielsen instructed by Mr S. Smith of Carter Capner Law for the Appellant.

Ms D. Callaghan, directly instructed by Ms R. Moroney of the Respondent.

• [1] Mr Evan Gilbert Burton commenced employment with JJ Richards and Sons Pty Ltd ('JJ Richards') in 1991. In 1992, he commenced an apprenticeship with JJ Richards as an auto electrician which he completed in 1996.[1] From 1993 until 2012, Mr Burton's tasks as an auto electrician included working at a work bench to assemble control boxes, junction boxes and electric harnesses and on table trestles to assemble tail light bars. Mr Burton also installed that equipment in trucks. At that time, Mr Burton worked at the JJ Richards workshop at Underwood.

• [2] In 2011, Mr Burton was transferred to work at a workshop at Stapylton and later in 2011 he was then transferred back to Underwood. In 2012, Mr Burton was promoted to the position of section leader.[2] Mr Burton ceased working for JJ Richards in 2015.

• [3] Mr Burton appeals against a review decision of the Workers' Compensation Regulator ('the Regulator'), dated 14 September 2017, that a neck injury he sustained, diagnosed as cervical spondylosis, was not an injury within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003 ('the Act').

• Mr Burton was a worker within the meaning of the Act; and

• Mr Burton had sustained the personal injury of cervical spondylosis.[3]

• [5] Mr Burton contends that he sustained his physical injury of cervical spondylosis over a period of time as a result of performing his work duties with JJ Richards.[4] Mr Burton further contends that his employment was a significant contributing factor to him sustaining cervical spondylosis.[5] The Regulator contends that Mr Burton's personal injury of cervical spondylosis did not arise out of his employment and that his employment was not a significant contributing factor to him sustaining cervical spondylosis.[6]

• [6] Mr Burton alternatively contends that he suffered an aggravation of his cervical spondylosis which arose out of, or in the course of, his employment with JJ Richards and that his employment was a significant contributing factor to that aggravation.[7] The Regulator contends that any aggravation of that injury did not arise out of his employment and that Mr Burton's employment was not a significant contributing factor to any aggravation of his cervical spondylosis.[8]

• [7] Mr Burton gave evidence and called evidence from his former colleagues, Mr Gregory McDermott and Mr Thomas Ferguson. Mr Burton also led evidence from Dr Shane Delaney, General Practitioner, Dr Frank Tomlinson, Neurosurgeon, Dr Scott Campbell, Neurosurgeon, and Dr David Johnson, Brain and Spinal Neurosurgeon.

• [8] The Regulator led evidence from two current employees of JJ Richards, Mr Ben Parsons, Manager of Engineering, and Mr Tony Ray, Operations Manager for Engineering. It also led evidence from Dr Leigh Atkinson, Neurosurgeon and Pain Physician.

• did Mr Burton's cervical spondylosis arise out of, or in the course of, his employment or did Mr Burton suffer an aggravation of his cervical spondylosis which arose out of, or in the course of, his employment? and, if so

• was Mr Burton's employment a significant contributing factor to his cervical spondylosis or to an aggravation of his cervical spondylosis?

• [10] An appeal of this type, pursuant to ch 13, pt 3 of the Act, is a hearing de novo.[9] The onus is on Mr Burton to prove, on the balance of probabilities, that he has an injury within the meaning of the Act.[10]

• [11] For the reasons that follow, I find that Mr Burton's cervical spondylosis did not arise out of, or in the course of, his employment and that his employment was not a significant contributing factor to that injury. Further, I find that Mr Burton did not suffer an aggravation of his cervical spondylosis which arose out of, or in the course of, his employment and that his employment was not a significant contributing factor to any aggravation of his cervical spondylosis.

• [12] The business of JJ Richards, relevant to this appeal, was to manufacture trucks to pick up domestic, recyclable and industrial waste.[11] Mr Burton commenced employment with JJ Richards at Underwood in 1991 and, apart from a four week period, was continuously employed by JJ Richards until 2015.[12]

• [13] Mr Burton worked at the Underwood workshop from 1991 until 2011. In 2011, for a period of about 10 months, he worked at the Stapylton workshop.[13] Following that 10 month period, Mr Burton returned to work at a workshop at Underwood.[14]

• [14] The Regulator submits that the resolution of the appeal entails:

• first, a determination about the actual work duties performed by Mr Burton between 2011 and January 2015; and

• secondly, a consideration of the medical evidence about any possible or likely significant causal nexus between the duties performed by Mr Burton and his cervical spondylosis or any aggravation of his cervical spondylosis.[15]

• [15] I generally agree with this submission, although, in my view, a determination about the actual work duties performed by Mr Burton prior to 2011 is also required. The reason for this is that Mr Burton contends that his cervical spondylosis (or an aggravation of that injury) arose out of him being required to spend the majority of his work time at JJ Richards performing auto electrical work at the work bench or at trestle tables with his neck in a marked cervical flexion and in a static flexion position.[16] The Regulator contends that only a small percentage of Mr Burton's work time required him to work in a way that required neck flexion.[17]

• [16] The Regulator does not dispute that Mr Burton, in performing duties at a work bench and, or in the alternative, at trestle tables, would work with his neck in a marked cervical inflexion. Rather, the Regulator submits it is not possible to accurately assess the time Mr Burton performed work in '... unrelieved marked cervical flexion or static cervical flexion.'[18]

• [17] Having regard to the contentions, evidence and submissions of the parties, the determination about the factual contest of how much time Mr Burton worked with his neck in a marked cervical flexion and static cervical flexion, depends upon a consideration of the evidence in respect of:

• the work Mr Burton performed at the Underwood workshop between 1992 and 2011;

• the work Mr Burton performed at the Stapylton workshop in 2011; and

• the work Mr Burton performed at the Underwood workshop between 2011 and 2015.

• [18] Upon the resolution of that factual dispute, consideration then needs to be given to the conflicting medical evidence given about whether Mr Burton's cervical spondylosis, or an aggravation of it, could have arisen out of, or in the course of, his employment and whether his employment was a significant contributing factor to that injury or its aggravation. This also requires a consideration of incidents at work where Mr Burton suffered head and neck injuries, the onset of pain to his neck, his reporting of that pain and Mr Burton's physical activities outside of work.

The work Mr Burton performed at the Underwood workshop between 1992 and 2011

• [19] Mr Burton's evidence-in-chief was that between 1993 and 2002, other than for three hours a day (when he worked on old, as opposed to new, trucks) and then after 2002,[19] his role as an auto electrician was to manufacture, at a bench,[20] components that would be fitted to new trucks, namely, control boxes, junction boxes, electrical harnesses and tail light bars.[21]

• [20] Mr Burton's further evidence was that it took approximately:

• one and a half days to assemble a control box (which was later reduced to half a day when he became proficient);

• one and a half days to assemble an electrical harness; and

• four to five hours to assemble a tail light bar and brackets.[22]

• [21] Mr Burton stated that control boxes and electrical harnesses were mostly built in multiples.[23]

• [22] Exhibit 1 consists of a series of six photographs, paginated 1, 2, 3, 4, 8 and 10. Exhibit 1, pages 1 and 2, are photographs of Mr Burton standing at a metal work bench ('the work bench'), located in a person's backyard, which Mr Burton said was the bench he worked on at Underwood.[24]

• Exhibit 1, page 2, which depicted Mr Burton standing and looking down at the work bench, with his hands about 6 inches above the bench, was an imitation of the position he was in when he assembled control boxes;[25] and

• Exhibit 1, page 1, which depicted Mr Burton standing and looking down at the work bench, with his hands on the top of the bench, was an imitation of the position he was in when he assembled electrical harnesses, junction boxes and tail light bars.[26]

• [24] Exhibit 1, page 8, was a photograph of Mr Parsons, standing at a present day work bench at JJ Richards,[27] in front of a control box which is located on a stand. Mr Burton stated that the stand depicted in Exhibit 1, page 8, was higher than the stand he used when he was with JJ Richards and that the stand he used was only the height of the yellow marks on the legs of the stand depicted in the foreground of that photograph.[28]

• [25] Mr Burton's further evidence was that his employer, at some unidentified time, bought him a high chair similar to that as depicted in Exhibit 1, page 10, but that it was impracticable to use.[29]

• [26] Mr Burton described how he assembled control boxes, junction boxes and electrical harnesses at the work bench,[30] and how he assembled tail light bars on trestle tables.[31] Mr Burton's evidence was that the height of the trestle tables was very similar to the work bench and that his stance at the trestle tables was the same as his stance, as depicted in Exhibit 1, pages 1 and 2, when standing at the work bench.[32]

• to assemble control boxes (which were done 10, 20 or 30 at a time), holes to be drilled were marked out on a bench, they were then drilled on the floor and then all components were installed into the base plate;[33]

• − at one end of the work bench, there was a rack of different coloured wires and a roller;

• − a piece of wire was placed under the roller and pulled out in front of him; and

• − then the wires (of which there were between 10 to 40 in one harness) were taped together and sheathed, being a process that was repeated in that there were three to four harnesses for one vehicle;[34] and

• to assemble tail light bars and brackets, either sheet metal or aluminium channel was drilled out, wired up and the lights installed.[35]

• [28] Mr Burton also described the work he performed installing the assembled components in the trucks.[36] Mr Burton's evidence-in-chief was that he spent about 50% of his time working at the work bench and 50% of his time doing assembly work on trucks.[37]

• [29] In cross-examination, Mr Burton stated that:

• from 2008 to 2012, he was the most senior auto electrician which involved him supervising and training apprentices and junior staff, including Mr Parsons[38] and that such staff, occasionally, would come and ask for his advice about matters;[39]

• when he was at Underwood, there were five people working under him, namely, two tradesmen, two apprentices and a labourer;[40]

• in contrast to the box stand depicted in Exhibit 1, page 8, the box stand he used to assemble control boxes was dead flat;[41]

• − he drew and changed the wiring diagrams for boxes which, depending upon the type of truck, would take either a couple of days or approximately two and a half days to draw; and

• − he drew them only once up to 2002, after which they were then modified as required, and most of the modifications he did at the work bench;[42]

• it took him a day to assemble a control box, and when there were no trucks, he sometimes did that work over three or four days straight;[43]

• a stool had been provided to him because he had complained of lower back pain, but he did not use it because it was unsuitable;[44]

• he had three scheduled breaks a day, he could have a drink of water when he needed it, and because he was the senior auto electrician, he could go to check on something outside the workshop;[45] and

• on average, about 50% of his time was working at the bench and the other 50% doing other work.[46]

• [30] Mr McDermott worked for JJ Richards from January 2009 to July 2012 and worked at the Underwood and Stapylton workshops. For most of that time, he worked as a hydraulic fitter and worked in the same department as Mr Burton from January 2010.[47]

• [31] Mr McDermott's evidence was that prior to the move to Stapylton, he observed Mr Burton assembling control boxes and when shown the photograph which comprised Exhibit 1, page 8, stated he had never seen the black metal stand or the bench depicted in that photograph.[48] Mr McDermott estimated that prior to the move to Stapylton, on his observations, Mr Burton spent 60% to 70% of his time at the work bench.[49]

• [32] In cross-examination, Mr McDermott stated that from January 2010 until the move to Stapylton, his opportunity to observe and assess what Mr Burton was doing every moment of the day was fairly limited and depended upon where he (Mr McDermott) was working on a truck; but that when he did observe Mr Burton, when he was moving around the truck in the workshop, the percentages he gave in his evidence-in-chief '... would be approximately right.'[50]

• [33] Mr Ferguson was an apprentice auto electrician employed by JJ Richards between 2008 and 2012. Mr Ferguson stated that he worked with Mr Burton at the Underwood and Stapylton workshops and his evidence was that he also built control boxes and electrical harnesses on the work bench.[51]

• [34] After being referred to the photographs contained in Exhibit 1, pages 1, 2 and 8, Mr Ferguson stated that the stands that were provided when he constructed control boxes had no legs, the front of the stand was not high off the bench and the back of the stand was elevated at the rear, but was only raised a few more inches so that a person could see into the box.[52]

• − he received training from Mr Burton during his apprenticeship;

• − when he was working at Underwood, Mr Burton gave him advice and assistance in respect of not only work at the work bench, but also on truck installation work; and

• − during the course of a day Mr Burton, to a degree, spent considerable time supervising, assisting and providing advice to Mr Ferguson and the other three apprentices;[53]

• agreed that when performing his work, he was required to give his full attention;[54]

• when put to him that it would actually be a small percentage of his day that he would be able to describe precisely what Mr Burton was doing, stated that depended upon where he (Mr Ferguson) was working;[55] and

• stated that Mr Burton only smoked during lunch.[56]

• [36] In re-examination, Mr Ferguson stated that it was around 2015 or 2016 that he started thinking about how much time Mr Burton had spent working at the work bench.[57]

• [37] Mr Parsons is the nephew of the General Manager of JJ Richards.[58] Mr Parsons completed a four year apprenticeship as an auto electrician with JJ Richards in 2013,[59] and became the Manager of Engineering from approximately 2015.[60]

• [38] Mr Parsons' evidence was that from when he was an apprentice auto electrician in 2009, Mr Burton trained him, supervised and checked his work and that Mr Burton spent a lot of time supporting him as an apprentice at the Underwood workshop.[61]

• [39] Mr Parsons stated that it would take him two days to build a control box and Mr Burton one and a half days, without interruptions; and Mr Burton was always getting disturbed because they were busy due to JJ Richards obtaining a contract with the Gold Coast City Council and that more trucks had to be built.[62] Mr Parsons described the control box as the 'brains' of the truck and stated that it contained close to a thousand wires, 20 relays, 44 different inputs and outputs, about 40 wires coming out of each fuse and that to construct one took a lot of work which was done from a diagram which was very detailed.[63] Exhibit 1, page 4, is a photograph of the internal components of a control box.

• [40] Mr Parsons' further evidence-in-chief was that:

• the engineering section at Underwood was mainly involved in the manufacture of brand new trucks;[64]

• there were four or five people at work in the auto electric department between 2009 and 2011, including two tradesmen, one of which was Mr Burton and up to three apprentices;[65]

• when he started at JJ Richards in 2009, the boxes were built on a stand similar to that depicted in Exhibit 1, page 4;[66]

• the electrical harnesses were made on the work bench depicted in Exhibit 1, page 1,[67] and control boxes were rarely made on the work bench and that most of the time they were made on another bench at the back of the workshop;[68]

• the work day commenced at 7.00 am, there was a break between 9.00 am and 9.15 am, employees would work until 12.00 pm when there was a half hour break; work would then continue until 3.00 pm when there was a 15 minute break and then work would conclude at 4.55 pm and employees would leave at 5.00 pm;[69]

• employees were permitted to go to the toilet and have a drink in between the standard work breaks and Mr Burton would go to the toilet, have a drink and smoke in between the standard work breaks;[70]

• the auto electrical staff would change between building boxes, building tail lights and building harnesses and doing installations on trucks and that one person did not just work on boxes a lot of the time;[71] and

• Mr Burton performed all of the tasks of installing the assembled components into trucks.[72]

• [41] Mr Parsons estimated that between 2009 and 2011, Mr Burton spent 40% of his time performing work on benches and that, over that period of time, Mr Burton was never in a position just to perform that work non-stop, without a break.[73] Mr Parsons also stated that during the period of 2009 to 2011, Mr Burton would be disturbed by hydraulic fitters, as well as store persons, so that he could help them; and that there were changes that needed to be made, by Mr Burton, to the wiring diagrams, being a job he did on the lunch table.[74]

• [42] Mr Parsons also stated that between 2009 and 2011, when Mr Burton was working at the benches, he was not required to be standing because a stool had been bought for him.[75]

• disagreed with the proposition that Mr Burton was spending 50% of his time at the work bench and 50% of his time doing other tasks;[76]

• denied the suggestion, in respect of the photograph contained in Exhibit 1, page 8, that the marks on the legs of the box stand in the foreground of the picture were welding marks[77] and stated that the box stand depicted in the photograph contained in Exhibit 1, page 8, was at Underwood prior to 2015;[78]

• disagreed with the proposition that control boxes would be assembled in multiples;[79] and

• stated that of the day and a half it took Mr Burton to assemble a control box, Mr Burton would be able to sit at the stool for three quarters of that time.[80]

• [44] Mr Ray has been an employee of JJ Richards for 32 years.[81] Mr Ray's evidence‑in‑chief included that:

• in the period of 2010 to 2011, prior to the move to Stapylton, he (Mr Ray) had an office at Underwood and that he had the opportunity to observe what most people were doing on the workshop floor, including Mr Burton, and that:

• − Mr Burton was '... in and out of cabs, overseeing what his guys were doing, helping guys';

• − Mr Burton was performing work on a work bench doing harnesses and control boxes;

• − a majority of Mr Burton's time was spent working in the trucks and working on the benches although he could not give a percentage; and

• − sometimes he saw Mr Burton using a chair at the work bench and sometimes he did not;[82] and

• when shown the photograph comprising Exhibit 1, page 8, stated that the box stand depicted on the bench was very similar to the box stand that was at the Underwood workshop in about 2010-2011 and that: 'We had several of them for different heights for the guys.';[83]

• [45] In cross-examination, Mr Ray disagreed with the proposition that the stand for the control box used by Mr Burton was set much closer to the height of the bench and the rear of it was elevated just above bench height.[84]

The work Mr Burton performed at the Stapylton workshop in 2011

• JJ Richards moved its operations to Stapylton for a period of 10 months due to big contracts it secured and that approximately 130 trucks needed to be constructed; and

• the work bench he worked on at Underwood was relocated to Stapylton.

• [47] Mr Burton's further evidence-in-chief was that when he worked at Stapylton:

• he was in charge of the assembling of control boxes, electrical harnesses and tail light bars;

• he was doing bench work and had a labourer and three other workers with him;

• another person (Mr Neil Boron) was responsible for the fitting of those components to the trucks; and

• he estimated 80% of his working day was spent standing at the work bench.[85]

• stated that he had four labourers under him when he was at Stapylton;

• stated that he trained the four labourers to do electrical harnesses and tail light bars for the first month and then checked their work;[86]

• stated that he did not do any installation work on the trucks until the last month and a half or two months at Stapylton because he had run out of control boxes;[87]

• denied the propositions that because he was supervising the four labourers and was in charge of the quality of their work, he had little time to do bench work, and denied the amount of time he spent on the bench was very small;[88] and

• stated that he did not believe the box stand, which he used at Underwood to construct control boxes, was taken to Stapylton.[89]

• [49] Mr McDermott's evidence was that upon the move to Stapylton, because of the amount of trucks that had to be built, 70% to 80% of Mr Burton's time was spent on the work bench.[90]

• it was frowned upon if an employee took a break outside of the designated meal breaks for which the penalty was loss of the company bonus for the week; and

• smoking was not allowed outside designated breaks.[91]

• [51] In cross-examination, Mr McDermott stated that when working at Stapylton and upon the return to Underwood, he had little opportunity to observe what Mr Burton was doing.[92] In respect of the percentages of the time Mr McDermott, in his evidence‑in‑chief, stated he observed Mr Burton working at the work bench, he (Mr McDermott) conceded the amount of time he had to observe Mr Burton throughout the day was in fact quite small.[93]

• [52] Finally, Mr McDermott stated that he knew Mr Burton was a smoker and that he would not know whether or not Mr Burton snuck out for a cigarette in work time.[94]

• [53] Mr Ferguson's evidence was that upon the move to Stapylton, Mr Burton was at the bench '... pretty much all day, every day.'[95] However, in cross-examination, Mr Ferguson stated that:

• when at Stapylton, he had very little time to observe what Mr Burton was doing because of the busy nature of the work and his (Mr Ferguson's) need to focus on what he needed to do;[96] and

• Mr Burton only smoked during lunch.[97]

• [54] In respect of the work performed at the Stapylton workshop, Mr Parsons' evidence was that:

• the work benches at Underwood upon which harnesses and boxes were built, were relocated to Stapylton, including the work bench and the trestles upon which tail light boxes were assembled;[98]

• there were five auto electric staff at Stapylton;[99]

• on his estimation, the maximum amount of time Mr Burton would spend, undisturbed, working at work benches was two hours, and of those two hours Mr Burton would only be undisturbed for about 20 minutes because the other staff were constantly talking to him;[100] and

• Mr Burton was involved in truck installation tasks at Stapylton.[101]

• stated that Mr Burton was always getting disturbed because they were busy due to JJ Richards obtaining a contract with the Gold Coast City Council and that 162 trucks had to be built within 12 months;[102]

• stated that he had a greater opportunity, compared to Mr McDermott and Mr Ferguson, to observe the work being performed by Mr Burton in the period of 2011 to 2012 because, in respect of Mr Ferguson, he was more experienced than Mr Ferguson and he (Mr Parsons) would be 'hanging around' Mr Burton more;[103]

• agreed that when working at the Stapylton workshop, he had equal opportunity to that of Mr Ferguson to see what Mr Burton was doing, but stated that he (Mr Parsons) saw Mr Burton more because Mr Ferguson was more senior to him;[104] and

• − Mr Burton was the person responsible for the control boxes; and

• − Mr Burton assembled 162 control boxes when at the Stapylton workshop, but stated that he did not know if Mr Burton assembled most of them.[105]

• [56] Mr Ray's evidence‑in‑chief was that after the workshop moved to Stapylton, he (Mr Ray):

• still had an office at Underwood, but would visit Stapylton at least once a day, although not at the same time every day, for a period of up to two hours and when he did that, he had the opportunity to observe the work Mr Burton was performing; and

• sometimes he observed Mr Burton on the tools, such as '... showing the guys tail light brackets and things like that' but that he never saw him working on boxes on the benches and did not see him doing any truck installations.[106]

• agreed that when Mr Burton and others were working at Stapylton, he (Mr Ray) had far less opportunity to observe Mr Burton than others who were working at Stapylton for nine hours a day;[107]

• while agreeing that, at Stapylton, Mr Burton took primary responsibility for ensuring control boxes were completed, stated that Mr Burton was not personally involved in the construction of most of them and that he (Mr Burton) was teaching people how to do them;[108] and

• agreed that his time observing Mr Burton at Stapylton was extremely limited.[109]

The work Mr Burton performed at the Underwood workshop between 2011 and 2015

• JJ Richards' operation returned to Underwood in 2012 and, soon after that time, he was promoted to section leader and had three labourers working under him;[110] and

• − he was not allowed to work on trucks and so '... if I wasn't doing paperwork, I'd be helping to do the boxes and stuff like that, to keep up with demand';[111] and

• − he spent 70% of his time at the work bench doing work and that the other 30% was spent ensuring the employees had the parts they needed, checking trucks, test driving trucks and checking the employees' work.[112]

• [59] In cross-examination, it was put to Mr Burton that upon the return to Underwood, he supervised 12 people. Mr Burton denied this and stated that he only supervised three labourers, and for a short period of time, one tradesperson.[113]

• [60] It was also suggested to Mr Burton that he also had responsibility to supervise the hydraulic fitters and boilermakers. Mr Burton denied this and stated that a Mr Anthony Ware did that supervision.[114] Mr Burton did agree that upon his return to Underwood, a number of add-ons were made to the trucks which necessitated him to draw more diagrams and that they would only take up to a day or a couple of days a month because there were not many of them to do.[115]

• that he performed a lot of supervision of labourers because once they were trained up (and constructing control boxes) they did not need a lot of supervision and he would check their work in the morning or afternoon;

• that the labourers asked a lot of questions of him; and

• that he went to the administration area a number of times per day and stated that he only went to administration if parts were needed and that the store person obtained the parts.[116]

• agreed that he could go for a drink whenever he wanted, but that he could not go for a walk or have a smoke whenever he wanted;[117]

• denied that he smoked quite a number of cigarettes every day;

• denied that he would get one of the apprentices to keep a watch out for him when he went to have a cigarette during the day outside of his normal breaks; and

• denied that he had frequent breaks after his return to Underwood.[118]

• [63] Mr Burton also denied that after he returned to Underwood, and became section leader, he rarely worked on boxes because he was too busy doing his other jobs (namely, doing diagrams, supervising and assisting employees, talking to management, going to meetings, and walking the floor to see what other employees were doing or to see the employees working underneath him).[119]

• [64] Mr McDermott stated that upon the return to Underwood, approximately 60% to 70% of Mr Burton's time was spent at the work bench.[120] However, in cross‑examination, Mr McDermott conceded that the amount of time he observed Mr Burton, throughout the day, was quite small.[121]

• [65] Mr Parsons stated that in the year the workshop returned to Underwood, Mr Burton became section leader of new trucks and his (Mr Parsons) observations for the six months after that time, when he continued to work with Mr Burton in the auto electric department, was that:

• 70% of Mr Burton's day was taken up with changing diagrams and undertaking management duties;[122] and

• Mr Burton spent the remaining 30% 'on tools' assembling boxes, harnesses and installing components on trucks.[123]

• [66] After that six month period, Mr Parsons stated that he went to work in research and development and was unable to estimate, after that time, how much time Mr Burton spent '... working on the tools' because of a wall that separated research and development and the auto electric department.[124]

• disagreed with the propositions that after the time Mr Burton became section leader in 2012:

• − he (Mr Burton) spent minimal time doing drawings and that any drawings he did do were done on the bigger 'smoko' bench;[125] and

• − he (Mr Burton) spent 70% of his time at the work bench because he was '... at a standard chair' at the smoko table;[126] and

• agreed that between 2012 and 2015, Mr Burton informed him that he had a stiff neck and that prior to 2012, Mr Burton had mentioned to him that he had some pain in his lower back.[127]

• [68] Mr Ray's evidence‑in‑chief was that upon the return to the Underwood workshop, when Mr Burton was a section leader, he (Mr Ray) would go down to the workshop during the day for a couple of hours a day, including to the auto electric section, where there was an opportunity to observe what Mr Burton was doing and that:

• Mr Burton was looking at drawings to add new things to the trucks, overseeing the employees, working on truck installations and occasionally working on control boxes on the bench;[128]

• if he (Mr Ray) had to talk to Mr Burton, he would take Mr Burton, outside of normal meal breaks, for a cigarette;[129] and

• between 2010 and 2015, employees were able to take toilet, drink and other breaks as and when needed.[130]

• agreed that in his letter to Dr Debprosad Bairagi dated 4 February 2015 (Exhibit 2, page 21) where the last dot point referred to the 'Job Functional Analysis', he (Mr Ray) was referring to the document headed 'Job Function Analysis' which was Exhibit 2, page 49;[131] and

• agreed that the Job Function Analysis was a document produced by JJ Richards to assist JJ Richards and medical doctors to establish which workers were up to the task of performing work in the mechanical and engineering section.[132]

• [70] The Job Function Analysis (Exhibit 2, page 49):

• provided that a functional task factor was 'Neck Postures' which was indicated to be constantly performed or '... performed for majority of shift'; and

• was described as 'Sustained flexion, extension and rotation of neck during maintenance activities.'

• disagreed that he did not have much opportunity to observe Mr Burton going about his work at Underwood;[133]

• agreed that any drawings for trucks done after 2010 were merely additions and alterations to the existing drawings but disagreed that Mr Burton did handwritten changes to the drawings primarily at the work bench, and that he did drawing modifications at the (smoko) table;[134] and

• stated he saw Mr Burton several times using a chair and that the chair was bought for all workers who worked at the work bench who were building boxes.[135]

Did Mr Burton spend the majority of his work time at JJ Richards performing auto electrical work at the work bench or at trestle tables with his neck in a marked cervical flexion and in a static flexion position?

• between 1991 and 2015, he worked as an auto electrician for JJ Richards assembling control boxes, electrical harnesses and tail light bars and brackets, and up to 2011, he was installing these components into trucks and, apart from two weeks in 2002, after hitting his head on the underside of a truck, he had not experienced any difficulties with his neck;[136]

• while he worked at a work bench, he worked with his head in a forward flexed position as identified in Exhibit 1;[137]

• from 2011 onwards, he stopped installing components into trucks;[138]

• in 2011, when his place of employment moved to Stapylton, he was working at the work bench and, or in the alternative, trestle tables for 10 months, during which 80% to 90% of his time was spent at the work bench assembling equipment;[139]

• from March 2012, when he was promoted to section leader, he spent 70% of his work time at the work bench, including assembling control boxes which were an incredibly important piece of equipment and, as he was the senior worker with particular expertise in that area, it fell upon him to do that work;[140]

• while he had supervisory responsibilities, he tended to primarily interact with subordinates at the start of the day and at the end of the day to check off on work and he spent most of his time working at a bench without regular breaks;[141]

• he took toilet breaks during normal work periods and had breaks to smoke a cigarette during regular breaks, apart from the odd occasion;[142]

• due to his lack of training or education about the risk of holding static postures of the neck for long periods of time, when he started to develop neck symptoms in 2012, he did not immediately make a connection with work;[143]

• in between 2012 and 2015, he took painkillers and had physiotherapy for neck problems;[144]

• on 22 January 2015, he was test driving a truck and turned his neck when he experienced neck pain and pain down his left shoulder and arm, causing pins and needles in three fingers, following which he reported the symptoms to his supervisor Mr Ray;[145]

• he did not talk about the causation for his neck pain in terms of work initially, but subsequently came to understand the link between the forward flexed position that he had adopted at work and his neck symptoms, based on medical opinion at a later time;[146]

• Mr McDermott and Mr Ferguson, who were co-workers of Mr Burton, both observed Mr Burton working and made observations of the amount of time Mr Burton spent at the work bench which was generally consistent with Mr Burton's evidence about those matters;[147]

• Mr Parsons, who it was submitted was not an impartial witness because he was the nephew of a member of the Richards family, and Mr Ray, had limited scope for observing Mr Burton in the course of his employment; and Mr Ray confirmed that Mr Burton's role involved the postures referred to in the Job Function Analysis;[148] and

• the JJ Richards Job Function Analysis for Mr Burton's role indicated that the role involved constant standing, forward bending/stooping and constant neck postures being 'sustained flexion, extension and rotation of neck during maintenance activities' and also involved constant reaching forward.[149]

• [73] In respect of Mr Burton's time at Underwood until 2011, the Regulator submitted that:

• there is agreement between the parties that prior to 2011, Mr Burton did spend around 40% to 50% of his time at a work bench;[150]

• the 40% to 50% included making control and junction boxes where Mr Burton's neck was flexed to some extent depending on the height of the control box stand that was used, and that:

• − Mr Ray's evidence was that there was no control box stand used at Underwood prior to 2011 such that the front of the box was just above the height of the bench; and

• − Mr Burton was involved in the design of the stand and chose a height that was comfortable;[151]

• the 40% to 50% also included making harnesses and tail light bars and there was no evidence adduced about how much time Mr Burton was required to remain in a marked cervical flexion or static flexion for those tasks;[152]

• contrary to Mr Burton's evidence that he rarely used the stool supplied to him, Mr Parsons and Mr Ray said they saw Mr Burton seated on a stool and Mr Ferguson stated Mr Burton used the stool occasionally;[153]

• on the evidence, it was safe to infer that for most of the time, the bench tasks and installation tasks were rotated at least every three or four days;[154] and

• having regard to the evidence about Mr Burton's shifts, scheduled work breaks, his ability to take toilet breaks and drink breaks, his ability to have a cigarette in work time, that Mr Burton, as the 'go to' person, was assisting other employees, and that Mr Burton was drawing and modifying wiring diagrams, it would be difficult, if not impossible, to conclude that Mr Burton spent any particular period of time, let alone an excessive period of time, in static flexion or continued marked flexion of the neck up to 2011.[155]

• [74] In respect of Mr Burton's time at Stapylton in 2011, the Regulator submitted that:

• Mr Burton's evidence that he worked for around 80% of the time at the bench doing boxes was not consistent with his statement of facts and contentions, namely, that he spent 80% to 90% of his time at trestle tables assembling equipment;[156]

• on the evidence, it was clear that Mr Burton was the most senior and experienced auto electrician at Stapylton who had the responsibility of overseeing the work of three initially untrained labourers, two apprentices and one qualified auto electrician in a busy period of time due to a significant increase in orders and workflow;[157] and

• taking into account the conflicting evidence about the time Mr Burton spent at the work bench, which could only have been for a period of seven months, given that the first month was spent setting up and the last two months Mr Burton was doing solely installation work, and taking into account scheduled breaks and other breaks and interruptions, it is not possible to assess the amount of time Mr Burton spent in an unrelieved static cervical flexion or marked cervical flexion position.[158]

• [75] In respect of Mr Burton's time at Underwood from 2012, the Regulator submitted, having regard to the conflicting evidence about the amount of time Mr Burton spent at the work bench, the fact that from that time he was occupying a section leader role that would require more supervisory and administration tasks with less time on the tools, together with a careful assessment of Mr Burton's credit, it was not possible to make an accurate assessment of the time Mr Burton spent in an unrelieved marked cervical flexion or static cervical flexion.[159]

• [76] The Regulator concedes that around 40% to 50% of Mr Burton's time between 1992 and 2011, while working at the Underwood workshop, was spent on a work bench. On the evidence, that concession was properly made. That was Mr Burton's evidence‑in‑chief and in cross‑examination. Mr McDermott, who worked in the same department as Mr Burton from January 2010, stated that on his observations, Mr Burton spent 60% to 70% of his time on the work bench. Mr Parsons' evidence was that for the time that he worked with Mr Burton between 2009 and 2011, Mr Burton spent 40% of his time performing work on benches. Mr Ray's evidence was that the majority of Mr Burton's time was working in the trucks and working on the benches, although he could not give a percentage.

• [77] The Regulator also concedes that in making control and junction boxes, Mr Burton's neck was flexed to some extent depending on the height of the control box stand that was used. Again, on the evidence, that seems to me to be a concession properly made. Having regard to the photographs contained in Exhibit 1, pages 1 and 2, Mr Burton, when working at a work bench, either assembling control boxes (whether or not assembling on the work bench depicted in Exhibit 1, page 1, or on another bench at the back of the workshop as stated by Mr Parsons) or electrical harnesses, he would be looking down onto the bench to perform the work. Mr Burton's further evidence was that when he assembled tail light bars on trestle tables, the height of the trestle tables were similar to the work bench and that his stance at the trestle tables was the same as depicted of him in the photographs in Exhibit 1, pages 1 and 2.

• [78] There was no dispute that the height of the work bench depicted in Exhibit 1, pages 1 and 2, was 900 mm.[160] The height of the work bench depicted in Exhibit 1, page 8, was 900 mm.[161] In relation to the height of the stand on which control boxes were assembled, as a matter of common sense, even if the box stand was of the height depicted in the photograph in Exhibit 1, page 8, an auto electrician, assembling a control box, would have their neck down towards their chest to some degree.

• [79] In any event, considering all the evidence, I find that on the balance of probabilities, there was a box stand used by Mr Burton that was of a lower height than the one depicted in the photograph in Exhibit 1, page 8. This is because:

• Mr Burton's evidence was that the box stand he used to assemble control boxes was dead flat; indeed, Mr Burton's evidence was that he designed the box stand that he used and had input into its height[162] such that Mr Burton's evidence about the height of the box stand he used would be reliable;

• Mr McDermott had never seen the black metal stand or bench depicted in the photograph in Exhibit 1, page 8;

• Mr Ferguson's evidence was that the stands provided when he was an apprentice auto electrician between 2008 and 2012 had no legs in the front and the back of the stand was only raised a few more inches, being evidence consistent with that of Mr Burton's;

• Mr Parsons' evidence about the size of the box stand was equivocal in that Mr Parsons stated that when he started at JJ Richards in 2009, a stand or a stand 'similar' to that depicted in Exhibit 1, page 4, was available; however, Mr Parsons also stated that there were, to his recollection, a minimum of two stands which indicates there was more than one box stand; and

• Mr Ray's evidence was that the box stand depicted in the photograph in Exhibit 1, page 8, was very similar to the box stand that was used at the Underwood workshop in about 2010 and 2011, but that there were several of them for different heights for employees.

• [80] There was no consistent evidence that Mr Burton was seated at a stool for the majority of the time he was performing work at a work bench. Mr Burton stated that while he was provided a stool, he did not use it because it was unsuitable. Mr Parsons' evidence was that Mr Burton was not required to be standing when working at a bench because a stool had been bought for him. Mr Ray's evidence was that sometimes he saw Mr Burton using a chair at the work bench and sometimes he did not.

• [81] Mr Burton's evidence was that it took him one and a half days to assemble a control box, which was later reduced to one day when he became proficient. That evidence was generally consistent with Mr Parsons' evidence-in-chief. Mr Burton also stated it took him half an hour to assemble a junction box, one and a half days to assemble an electrical harness, and four to five hours to assemble a tail light bar. Mr Burton's evidence about the different assembling work he performed as between building boxes, building harnesses and building tail light bars was consistent with Mr Parsons' evidence that auto electrical staff would change between assembling those components. Mr Burton also stated that control boxes and electrical harnesses were mostly built in multiples. Although Mr Parsons denied that suggestion, I prefer Mr Burton's evidence. Mr Parsons' denial was a bare denial,[163] whereas Mr Burton gave clear reasons why he would 'mainly' assemble control boxes in multiples (namely, when there were no trucks in the workshop at the time).[164]

• [82] The evidence is clear that when Mr Burton was working at a work bench, he was able to take breaks during his working time, namely, between the authorised breaks, to have a drink, to go to the toilet or to have a smoke such that it is reasonable to conclude that, of the time Mr Burton was working at a work bench, his neck was not in a marked cervical flexion for 100% of that time. Further, there is no doubt that if he was asked a question by another employee, or in looking at a relevant diagram, his neck would not be in a marked cervical flexion. However, there is no evidence that those breaks and other distractions, when Mr Burton was working at a work bench, accounted for the majority of his time.

• [83] For the above reasons, I am satisfied, on the balance of probabilities, that of the time Mr Burton spent working at a work bench at Underwood between approximately 1992 and 2011, he spent the majority of that time with his neck in a marked cervical flexion or static flexion position.

• [84] The move of JJ Richards' truck building operation to Stapylton was as a result of it being awarded a contract with the Gold Coast City Council where a large number of trucks (130 according to Mr Burton's evidence and 162 according to Mr Parsons' evidence) had to be built in a period of approximately 12 months.

• [85] Mr Burton's evidence was that he estimated 80% of his working day was spent standing at the work bench. However, in cross-examination, Mr Burton stated that for the first month, he trained labourers to undertake assembly work[165] and that he did not do any installation work on trucks until the last month and a half or two months because he had run out of control boxes. The Regulator submits that of the seven months Mr Burton spent at the work bench, taking into account scheduled breaks and other break interruptions, it was not possible to assess the time Mr Burton spent in an unrelieved static cervical flexion or marked cervical flexion position when he was at Stapylton.

• [86] Mr McDermott gave evidence that 70% to 80% of Mr Burton's time was spent on the work bench, however, he agreed he had little opportunity to observe what Mr Burton was doing. Mr Ferguson's evidence was that Mr Burton was at the bench pretty much all day every day but again he agreed that he had little time to observe what Mr Burton was doing. Mr Parsons stated that he had a greater opportunity, compared to Mr McDermott and Mr Ferguson, to observe what Mr Burton was doing because he (Mr Parsons) was not as senior as Mr Ferguson and would have had more of a glimpse of what Mr Burton was doing. Mr Parsons also stated that Mr McDermott was doing hydraulic work which was in the section about 20 metres away from the electrical section.[166] Mr Ray did not have an office at Stapylton and while he visited Stapylton once a day for a period of up to two hours, I do not accept his evidence about the amount of work he says Mr Burton performed on the work bench as being reliable for those two reasons.

• [87] It is difficult, on the evidence, to make an assessment about the amount of time Mr Burton spent working at the work bench at Stapylton. However, on the balance of probabilities, my view is that the evidence, overall, tends to support the conclusion that Mr Burton spent a majority of his time (when not training labourers or not performing installation work on trucks) working at the work bench assembling components. There are a number of reasons for this.

• [88] First, there seems to be no dispute, that a large number of trucks had to be fitted out during the period of time at Stapylton because of the Gold Coast City Council contract. Mr Parsons conceded that it was an extremely busy period for all of the team.[167]

• [89] Secondly, Mr Parsons' evidence in cross-examination was that Mr Boron was the auto electrician who did more of the installation work on trucks and that Mr Burton was primarily the auto electrician working on the bench.[168]

• [90] Thirdly, when it was put to Mr Parsons in cross-examination that it was Mr Burton who put together most of the control boxes that went into the trucks at Stapylton, Mr Parsons stated that he could not answer, he did not know and that he could not recall.[169]

• [91] Fourthly, despite the concessions made by Mr McDermott and Mr Ferguson that they had little opportunity to observe what Mr Burton was doing, to the extent they did observe Mr Burton, their evidence about the amount of time Mr Burton spent at the work bench was generally consistent with Mr Burton's evidence.

• [92] Having regard to all the evidence, I find that for approximately seven of the ten months Mr Burton was at Stapylton, he spent the majority of that time working at a work bench.

• [93] Mr Burton stated that the bench stand he used at Underwood was not taken to Stapylton and the evidence is unclear as to whether Mr Burton was using a box stand of the kind depicted in Exhibit 1, page 8. Despite this, even if Mr Burton was using a box stand of the kind depicted in Exhibit 1, page 8, his neck would have been bent down to some degree when assembling a control box. However, not 100% of all the time Mr Burton spent at a work bench would have been spent with his neck flexed. This is because of the ordinary breaks that Mr Burton would have taken during his working time and Mr Burton's concession that he had to check the work of the labourers that he supervised (although there was a dispute about how long it would take him to do it).[170] I find that for most of the time Mr Burton was working on a work bench, he would have been looking down at the control boxes he assembled.

• [94] During this period, Mr Burton had been promoted to section leader and had three labourers working under him. Mr Burton estimated that he spent 70% of his time at the work bench and the other 30% checking employees' work and attending to other administrative duties. Mr Burton stated that he was not allowed to work on trucks and that if he was not doing paperwork, he would be helping to do the boxes. Mr Burton conceded that because of add-ons that were being made to trucks, that necessitated him to draw diagrams that would take a day or a couple days a month for him to complete. Mr Burton also stated that he started supervising and checking the work of other employees two hours before he left to go home.[171]

• [95] Mr McDermott stated that the amount of work Mr Burton was doing at a bench reduced down to 60% to 70%. However, Mr McDermott left JJ Richards after about six months of Mr Burton becoming section leader.[172]

• [96] Upon returning to Underwood, Mr Parsons worked with Mr Burton in the auto electric department for six months. Mr Parsons' evidence-in-chief was that during that six month period, 70% of Mr Burton's day was taken up changing diagrams and undertaking management duties, and the remaining 30% assembling boxes, harnesses and installing components into trucks. In cross-examination, Mr Parsons stated that after he moved into research and development, a few times a day he (Mr Parsons) would go into the electrical section and he observed that 70% of Mr Burton's time was spent at the smoko table.[173] Mr Ray's evidence was that he would go to the workshop, including the auto electric section, during the day, for a couple of hours, where he had the opportunity to observe Mr Burton.

• [97] The weight of evidence is that upon his return to Underwood, when Mr Burton was the section leader, there was a reduced amount of time he spent working at a work bench assembling control boxes. Mr Burton was not spending as much time working at a work bench as he had spent at Stapylton because of his promotion to section leader and the supervisory and administrative tasks he was required to undertake.

• [98] However, Mr Burton's evidence is that he was doing nearly the same amount of work at the work bench when he was at Stapylton.[174] I have difficulty accepting that evidence given the undisputed fact that Mr Burton was promoted to section leader from 2012 and his evidence about the supervisory and administrative duties he was performing.

• [99] For this reason, together with Mr Parsons' evidence, I find that the amount of time Mr Burton spent at a work bench was significantly reduced and he did not spend 70% of his time at the work bench to the extent he stated in his evidence-in-chief. Doing the best I can with the evidence, I find that less than half of Mr Burton's time was spent at a work bench during this second period at Underwood.

• [100] Again, there is no doubt Mr Burton was able to take breaks during his working time and would have been interrupted by other employees such that when he was working at a work bench, not all of that time would have been spent with his neck bent forward.

• [101] Dr Delaney first saw Mr Burton on 6 May 2015, although Mr Burton had consulted other General Practitioners at Dr Delaney's practice about his neck pain on 14 June 2012,[175] 25 and 27 January 2015,[176] 2 and 24 February 2015,[177] 7 and 13 April 2015[178] and 5 May 2015.[179]

• [102] By letter dated 25 January 2016, Dr Delaney opined that Mr Burton's degeneration to his neck was '... a result of his lifelong employment with the same employer' and that '... the duties required in this work require prolonged and abnormal cervical flexion.'[180]

• [103] By letter dated 18 February 2019 to Mr Burton's lawyers, Dr Delaney opined that:

• Mr Burton's experience of increased intensity of neck pain between 2012 and 2015 was likely due to:

• − the cumulative wear and tear of prolonged marked cervical flexion since commencing work with JJ Richards in Mr Burton's 'late childhood'; and

• − the new requirement in his work duties to spend an even greater percentage of his work time at the work bench;

• Mr Burton's work tasks that required prolonged periods of exaggerated cervical flexion both contributed and accelerated his degenerative cervical spine;

• the connection between Mr Burton's work tasks performed from 1991 to 2012 and from 2012 to 2015 is the amount of time he was required to stand working over the work bench;

• a person's cervical spine is most comfortable and wears less in a neutral position; and

• the prolonged cervical flexion accelerates any underlying degenerative process and as '... Mr Burton had only worked for a single employer from his late childhood the connection between Mr Burton's work tasks and his cervical spine injury is clear cut.'[181]

• [104] In cross-examination, Dr Delaney stated that on 6 May 2015, Mr Burton did not report anything to him about his neck flexion and extension.[182] The next time Dr Delaney examined Mr Burton was on 20 May 2015 and, on that day, Dr Delaney issued Mr Burton a workers' compensation medical certificate which stated that Mr Burton's stated cause of injury was:

injury as a result of working in same job same employer for 25 years. Employment required constant neck flexion & extension.[183]

• [105] In further cross-examination, Dr Delaney agreed that, at the time he issued that workers' compensation medical certificate, the extent of his knowledge of Mr Burton's work duties was that his duties required constant neck flexion and extension.[184]

• [106] By a letter of support for Mr Burton dated 25 January 2016, Dr Delaney opined that Mr Burton was an '... automotive electrician where he spends most of his time working in an assembly line assembling parts to trucks' which 'requires him to spend the majority of his time with his neck in a marked cervical flexion.'[185] Again, Dr Delaney agreed that that was the extent of his understanding of Mr Burton's work duties as at January 2016.[186]

• [107] Dr Tomlinson's evidence by his report dated 12 November 2016,[187] was that as a result of a work-related incident that occurred on 22 January 2015 (when Mr Burton turned his head when driving a truck), Mr Burton sustained an injury to his cervical spine which involved an acute C6/C7 disc protrusion with a left C7 radiculopathy.[188]

• [108] In another report dated 26 August 2017,[189] Dr Tomlinson opined that Mr Burton's work tasks performed over the period of 2012 to 2015 caused, contributed and accelerated the development of the injury, namely, acute C6/C7 disc protrusion with a left C7 radiculopathy.[190]

• [109] Dr Tomlinson's further opinions were that:

• as set out in a memorandum signed by him on 5 March 2019, the work tasks performed by Mr Burton for the period of 2011 to 2015, involving static neck flexion, particularly, while Mr Burton was performing work at a bench, contributed to the development of '... the injury described;'[191] and

• as set out in a further memorandum signed by him on 29 July 2020:

Dr Tomlinson indicated that after consideration of Mr Burton's work practices which involved sustained periods of neck flexion and in considering Mr Burton's recreational activities, it is likely that Mr Burton's work was a significant contributing factor which caused him an aggravation of cervical spondylosis. The aggravation manifested in the form the neck pain experienced by Mr Burton.[192]

• [110] In cross-examination, Dr Tomlinson was asked, in respect of his opinion as set out in his signed memorandum on 5 March 2019, what was the 'injury described'. Dr Tomlinson answered by stating that the injury was the '... neck, overall'.[193] However, in my opinion, reading the second paragraph of that memorandum in context, the injury described by Dr Tomlinson is referrable to the injury described on page 2, paragraph number 3, in his report dated 26 August 2017, where the injury described by Dr Tomlinson, clearly is an acute C6/C7 disc protrusion with a left C7 radiculopathy.[194] The injury is not described as cervical spondylosis.

• [111] Dr Tomlinson was also cross-examined about three journal articles to which he referred in his opinion expressed in the memorandum he signed on 29 July 2020. It was suggested to Dr Tomlinson that those articles were of some academic interest but were really of little practical application to Mr Burton's situation. Dr Tomlinson was of the view that those articles had application to Mr Burton's situation where people have sustained neck flexion.[195]

• [112] Dr Johnson examined Mr Burton for WorkCover on 6 August 2015 and by his report dated 6 August 2015, opined that Mr Burton suffered a strain injury to his cervical spine and subsequent C6/C7 disc prolapse caused by the work injury described by Mr Burton, namely, when driving a truck on 17 January 2015 and turning his neck.[196] In cross‑examination, Dr Johnson agreed that in that report he described no other work‑related injury.[197]

• [113] In a report to WorkCover dated 12 January 2016, Dr Johnson stated that Mr Burton's onset of pain symptoms were consistent with a work injury aggravating disc degeneration and contributing to the development of a symptomatic disc prolapse.[198]

• [114] Mr Burton then became a private patient of Dr Johnson.[199] In a report to Dr Delaney dated 14 March 2016, Dr Johnson expressed the view that he was at a loss as to why Mr Burton's workers' compensation claim had been declined in circumstances where Mr Burton turned his neck suddenly, experienced immediate pain and subsequently developed left-sided C7 radicular symptoms.[200]

• [115] In that same report, Dr Johnson stated that he had no hesitation in stating that Mr Burton's essentially lifelong career with JJ Richards since the age of 16 had been a major contributor to cervical spondylosis and that the specific incident in January was the triggering event transforming non-painful cervical spondylosis into a painful left‑sided C6/C7 disc bulge causing compression of the left C7 nerve root and consistent pain symptoms.[201] In cross-examination, Dr Johnson denied that that statement in his report was to support Mr Burton's claim to get WorkCover to pay for his surgery and stated that he was providing general information to Mr Burton's general practitioner about him.[202]

• [116] In further cross-examination, Dr Johnson agreed that there was a distinction between the information provided to him by Mr Burton's lawyers (to the effect that Mr Burton commenced experiencing neck pain shortly after a promotion at work in March 2012 and continued to experience neck pain throughout 2012 to 2015)[203] and the history given to him by Mr Burton. Dr Johnson agreed that Mr Burton did not give him any history of increased neck pain between 2012 and 2015.[204]

• [117] The letter of instruction dated 3 February 2019 from Mr Burton's lawyers to Dr Johnson asked the following question which Dr Johnson reproduced in his report dated 6 February 2019:

Our client's work tasks performed throughout the period of 2012 to 2015 involved a significant amount of static neck flexion in particular whilst he was performing work at a work bench. Could this particular work task and required neck positioning have contributed to the development of Mr Burton's neck injury or the aggravation of pre-existing neck injury? [205]

• [118] In response to that question, Dr Johnson opined that:

Poor posture and poor movement proficiency over time will have a negative impact on the structural elements and integrity of the spine, such that biomechanical stressors are likely to drive biological inflammation and symptomatic structural breakdown, pain and disability.[206]

• [119] Dr Johnson was cross-examined about what he understood by the phrase '... a significant amount of static neck flexion'. Dr Johnson stated that if the level of biomechanical stress on the spine is high, that will drive changes to the cervical spine which can result in pain and disability.[207] When further pressed, Dr Johnson stated a significant amount of static neck flexion was: '... if you had an eight hour day and you're looking down, or for a large portion of the day, that would be a significant amount of static neck flexion. Whereas one hour continuously, two hours continuously, four hours continuously, it's considered, in my mind, to be at a level that is unhealthy.'[208] Dr Johnson agreed that he was told by Mr Burton's lawyers that between the period of 2012 to 2015, Mr Burton's work involved a significant amount of static neck flexion while he was performing work at a work bench.[209]

• [120] In further cross-examination, Dr Johnson was unable to state what the percentage of time Mr Burton spent with static neck flexion in the workplace or what his tasks were. However, Dr Johnson stated that Mr Burton's clinical presentation was consistent with the premise that Mr Burton had poor posture of the cervical spine which did not mismatch with the history given to him, although, he conceded that that was a history provided by Mr Burton's lawyers and not a history given to him directly by Mr Burton about the work event in January 2015 when he first saw Mr Burton.[210]

• [121] Dr Campbell examined Mr Burton in July 2016 after being referred by Mr Burton's general practitioner.[211] In his report dated 25 July 2016, Dr Campbell reported that Mr Burton's presented neck pain and stiffness symptoms '... came on in 2002 with an acute exacerbation in 2012 followed by further symptoms in January 2015.'[212]

• [122] Dr Campbell's next opinion, expressed in a memorandum he signed on 13 February 2019, was that:

• the activities described by Mr Burton '... of standing with his neck in a fixed position looking down at a bench for seventy percent of his working day between 2012 and 2015 were likely causative of his neck injury';

• Mr Burton had been performing such work for many years prior to 2012, but the onset of symptoms from 2012 was '... consistent with the fact that Mr Burton's role changed such that he was performing less work away from the bench (whereas he had performed more installation work on trucks prior to 2012)'; and

• it was 70% to 80% likely Mr Burton sustained repetitive strain type injury of his cervical spine due to his described work activities involving standing at a bench with his neck in a flexed position.[213]

• [123] A further opinion of Dr Campbell, expressed in a memorandum he signed on 28 February 2019, was that:

• the information leading to the conclusion that the activities from 2011 to 2015 (as described in Mr Burton's amended statement of facts and contentions) were likely to have caused 70% of his injury with 30% being due to either pre‑existing matters or non-work-related matters; and

• the work injury could be described as spondylosis of the cervical spine which became symptomatic due to work activities and could be described as an aggravation and could also be described as a musculoskeletal injury.[214]

• [124] Dr Campbell's further opinion, expressed in a memorandum he signed on 29 April 2019, after reviewing Mr Burton's work history as set out in Mr Burton's statement of facts and contentions for this appeal, was that if Mr Burton had increased his bench work from '... 50% to 80/90% of his work time in around [2011], with his neck in a marked cervical flexion; that could have caused Mr Burton's neck symptoms.'[215] Dr Campbell was also provided with the three articles referred to by Dr Tomlinson in his memorandum signed 29 July 2020[216] and his evidence was that those articles did not change the opinion he expressed in the memorandum he (Dr Campbell) signed on 29 April 2019.[217]

• [125] In cross-examination, Dr Campbell stated that cervical spondylosis is asymptomatic and that everyone has such a condition which progresses with age. Dr Campbell agreed that he believed that Mr Burton had neck pain from 2011 to 2015 due to his static neck position. Dr Campbell attributed Mr Burton's neck pain to his work duties because Mr Burton did not have a pre-existing problem.[218]

• [126] Dr Atkinson stated that in addition to being a Neurosurgeon and Pain Medicine Physician, his other area of expertise was in rehabilitation.[219]

• [127] Dr Atkinson examined Mr Burton for WorkCover in May 2016.[220] In his report dated 19 May 2016, Dr Atkinson relevantly opined that:

• his diagnosis of Mr Burton was an aggravation of the pre-existing degenerative change in the cervical spine and non-verifiable referred pain into the left upper limb;[221]

• Mr Burton noted he suffered a minor injury to his cervical spine in 2002;[222]

• Mr Burton gave no history of neck pain over the years of his employment;[223]

• the initial history of pain seemed to have developed while Mr Burton was driving a motor vehicle on 22 January 2015 and that there was no specific incident or injury with the result that it was difficult to relate the injury to his cervical spine to the driving of the truck on that date;[224] and

• it was unlikely that driving the truck caused the reported pathology in the cervical spine which he (Dr Atkinson) considered to be longstanding.[225]

• [128] Dr Atkinson further opined that Mr Burton's employment with JJ Richards was not a significant contributing factor to the reported injury because:

• over the 25 years of working with JJ Richards, Mr Burton gave no history of neck pain during that period;

• the initial history of neck pain seemed to develop while driving a vehicle on 22 January 2015 and there was no history of any specific accident or driving activity that precipitated the reported symptoms;

• the subsequent cause of the reported injury has been atypical with little improvement and an inability to return to employment; and

• the reasons for Mr Burton's inability to return to employment are difficult to determine although he (Dr Atkinson) recognised a high degree of anxiety.[226]

• [129] In a further opinion contained in his memorandum signed on 15 February 2019, Dr Atkinson stated that:

• cervical spondylosis was a degenerative condition from which all people suffer as they grow older with a significant percentage of people in their 40s or older showing some radiological signs, with or without symptoms;

• Mr Burton's history of intermittent neck pain, as he understood it, from 2012 until it worsened after kayaking and doing chin-ups in January 2015, was typical of cervical spondylosis;

• there was some evidence that repeated minor trauma and sporting activities with sudden movement and/or sudden load-bearing may contribute to the development of cervical spondylosis and that major trauma did contribute to the development of cervical spondylosis; and

• that he (Dr Atkinson) had not seen and did not believe there was any evidence‑based scientific literature that showed that either '... static flexion for prolonged periods or the type of work duties performed by Mr Burton were a significant contributing factor to cervical spondylosis.'[227]

• [130] In his evidence-in-chief, Dr Atkinson was asked whether the three articles referred to by Dr Tomlinson caused him to change his opinion. Dr Atkinson's evidence was:

No. Because the first two articles, really, one - one is an individual study, experimental, and it reflects on whether bending the neck with people using iPhones is - is relevant and it causes pain. The second one, again, draws a conclusion that talks about "seems" or "may", and it's really not very scientific. And - and the third one by Ariens, again, is fairly vague in my view and, again, it talks about - no clear relation was found between neck rotation and neck pain. All right, we're not talking about that so much. But the - the risk factors show a trend. They - they mention the trend. It's really not very sound scientific evidence to support that concept, and it's not one that I have seen in clinical practice.[228]

• [131] Dr Atkinson was also taken to the American Medical Association Guides to the Evaluation of Disease and Injury Causation, Second Edition ('AMA Guides').[229] Dr Atkinson stated he agreed with the comment on page 186 of the AMA Guides, namely, that neck flexion and rotation were not statistically significantly associated with neck pain, even for longer periods of time. Dr Atkinson stated there was no pandemic of pain amongst workers who, in their jobs, have static neck flexion, such as cannery workers, surgeons or operating theatre nurses.[230]

• [132] In cross-examination, Dr Atkinson stated that his understanding of Mr Burton's work tasks for the period from the 1990s to 2015 was:

• for long periods of time, from the 1990s to 2010, Mr Burton:

• − worked in a workshop standing at a bench, which was about groin height;

• − stood with his head in a forward flexed position so that his chin was on his chest about 50% of the working day;

• − did that for most of the period of a nine hour working day over four days a week, interspersed with periods where he would then go on to other duties, including working around trucks for 50% of his work time; and

• in 2011, for a period of about 10 months, Mr Burton was at the bench standing with his chin on his chest for about 80% to 90% of his work day; and

• from 2012 to 2015, 70% of Mr Burton's work time was spent with his neck in that forward flexed position.[231]

• [133] It was put to Dr Atkinson that if, for a period of three to four years, Mr Burton was standing with his neck in a forward flexed position, with his chin on his chest, looking down for 70% of his work day, with his work day being between 7.00 am and 5.00 pm, it was likely that the pain in his neck in 2012, and which was aggravated in 2015, was related to that work. Dr Atkinson stated that he did not think it was likely.[232]

• [134] It was then put to Dr Atkinson that there was scientific literature, in the form of the three articles referred to by Dr Tomlinson, that suggested that a person who put their head in a forward flexed position would result in neck pain. Dr Atkinson stated that the evidence in those articles was flimsy because it was equivocal as to whether there was a link between a person's head being in a forward flexed position and neck pain.[233]

• [135] It was further put to Dr Atkinson that Mr Burton's evidence, that for 10 months in 2011 he spent 80% to 90% of his work time at a bench, was consistent with Mr Burton, within six months, complaining of neck pain which led him to go to see his General Practitioner and physiotherapist. Dr Atkinson disagreed and referred to the fact that Mr Burton seemed like a very active sportsman, despite all of his pain, because of the sporting and physical activities undertaken by Mr Burton outside of work such as kayaking, rock climbing, golf and paddle boarding. Dr Atkinson opined that it was more likely that he could have injured his neck rock climbing or doing chin-ups rather than what he was doing at work. Again, Dr Atkinson stated that there were no workers, such as garment manufacturers, postal workers and cannery workers, who had their necks in a flexed position all day long, reporting frequent neck pain.[234]

• [136] Dr Atkinson was further cross-examined about the three articles referred to in Dr Tomlinson's memorandum signed on 29 July 2020, including the fact that one of those articles[235] was referred to in the AMA Guides.[236] It was suggested to Dr Atkinson that the literature review undertaken shows there is substantial evidence of a link between neck flexion and neck pain symptoms. Dr Atkinson stated that, again, the articles were 'flimsy' because they talk about a prevailing hypothesis and that more scientific evidence was needed.[237] Dr Atkinson stated that he inclined to the view that Mr Burton had other things he was doing which was more likely to have caused some aggravation of cervical spondylosis.[238]

• [137] It was then suggested to Dr Atkinson that in terms of neck injuries, if a person sustains an injury over a period of time, there could be a slow and insidious onset of neck pain. Dr Atkinson stated it was possible and that, depending on the level of trauma, a person could suffer immediate neck pain if they sustained a neck injury due to an accident or injury. Dr Atkinson also stated that if a person did chin-ups and suffered a neck injury he would expect the symptoms to be suffered straightaway. Dr Atkinson also agreed it was possible that if there was a more repetitive strain injury, the symptoms would be more insidious. Dr Atkinson then qualified that by saying that many people look down in a flexion position but have no disabling pain.[239]

The parties' submissions about the expert evidence

• [138] Mr Burton submitted that the vast preponderance of the medical opinions, namely, those of Dr Delaney, Dr Tomlinson, Dr Campbell and Dr Johnson, support the contention that Mr Burton's work at a bench with his head in a forward flexed position was the cause of his neck symptoms despite the fact he had a degeneration of the spine; and the evidence of those experts accords with common sense.[240]

• [139] The Regulator submitted that the evidence of Dr Atkinson should be preferred and accepted because Dr Atkinson:

• has expertise not only in neurosurgery but in pain management and rehabilitation and, in particular, cervical pain;

• has kept up-to-date with scientific publications relevant to his specialities;

• reviewed all relevant material, including the photographs tendered, the most recent statements of facts and contentions and other expert reports;

• reviewed the articles which Dr Tomlinson stated supported the view that prolonged neck flexion contributed to the development of cervical spondylosis and was able to explain all those articles were not authoritative; and

• referred to an authoritative source, namely, the AMA Guides which referred to a literature review and additional studies from the Bone and Joint Decade systemic review.[241]

• [140] Further, the Regulator submitted that a compelling consideration was the total lack of association between Mr Burton's work tasks and the onset or worsening of his neck pain by his own evidence, given that both Dr Tomlinson and Dr Campbell agreed that it would be difficult to conclude that Mr Burton's work duties were a contributing factor to his cervical spondylosis when he himself did not associate any onset or increase in symptoms whilst performing those duties, at least in the latter stages.[242]

Did Mr Burton's cervical spondylosis arise out of, or in the course of, his employment or did Mr Burton suffer an aggravation of his cervical spondylosis which arose out of, or in the course of, his employment?

• [141] An injury which arises out of employment occurs where there is a causal connection between the employment and the injury.[243] 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.[244] 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.[245]

• [142] In terms of the claim of an aggravation of an injury, there is no distinction between an 'exacerbation' and 'aggravation' of an injury.[246] 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.[247] 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.[248] An aggravation, in both these senses, is compensable.[249]

• [143] The common law test of balance of probabilities is not satisfied by evidence which fails to do more than just establish possibility.[250] In Seltsam Pty Ltd v McGuiness, Spigelman CJ relevantly stated:

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.[251]

• [144] In Ribeiro v Workers' Compensation Regulator,[252] the established approaches where there is competing medical evidence about whether there is a causal connection between an injury and a worker's employment were summarised. Relevantly, they are:

• 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;

• 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;

• 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;

• 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;

• 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; and

• 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.[253]

Did Mr Burton's cervical spondylosis arise out of, or in the course of, his employment?

• [145] Dr Delaney's opinion, in his letter dated 25 January 2016, was that the degeneration to Mr Burton's neck was a result of Mr Burton's lifelong employment with JJ Richards in duties which required prolonged and abnormal cervical flexion.[254] By his later report dated 18 February 2019, Dr Delaney stated that Mr Burton's work tasks contributed to and accelerated his degenerative cervical spine.[255]

• [146] Dr Tomlinson, after accepting the diagnosis of a Medical Assessment Tribunal that Mr Burton had cervical spondylosis, opined that it was Mr Burton's work activities that aggravated his cervical spondylosis.[256]

• [147] As submitted by the Regulator:[257]

• Dr Johnson was of the opinion that cervical spondylosis was normal;[258]

• Dr Campbell, when asked about the opinion he expressed in the memorandum he signed on 29 April 2019 (that Mr Burton's work did not cause his underlying degeneration and his work may have made the pre-existing condition symptomatic or more symptomatic[259]), stated that the pre-existing condition was cervical spondylosis, namely, the normal wear and tear that just occurs with age;[260] and

• Dr Atkinson expressed the opinion that cervical spondylosis was a degenerative condition from which all people suffer as they grow older with a significant percentage of people in their 40s and older showing some radiological signs, with or without symptoms.[261]

• [148] Having regard to this evidence, I am not persuaded that Mr Burton's injury of cervical spondylosis arose out of, or in the course of, his employment. There are a number of reasons for this.

• [149] First, Dr Tomlinson seemed to accept that Mr Burton's work did not have a causal connection with his cervical spondylosis, but that Mr Burton's employment aggravated his cervical spondylosis.

• [150] Secondly, Dr Delaney's opinion that Mr Burton's employment and performance of the same duties for 23 years contributed to a degenerative change in his neck was challenged in cross‑examination. Dr Delaney opined that if you are doing something over and over again it has got to be a contributing factor to degenerative change and that he did not think it required science to answer that question. That evidence, in my opinion, was at odds with the considered opinions given by Dr Johnson, Dr Campbell and Dr Atkinson.

• [151] Thirdly, I prefer the evidence of Dr Johnson, Dr Campbell and Dr Atkinson, being specialist Neurosurgeons, that cervical spondylosis is the natural, age related degeneration of a person's cervical spine.

• [152] For these reasons, I am not persuaded that Mr Burton has discharged the onus of proof on him that his cervical spondylosis had a causal connection with his employment or that it arose in the course of his employment.

Did Mr Burton suffer an aggravation of his cervical spondylosis which arose out of, or in the course of, his employment?

• [153] Having regard to all the evidence and submissions, I am not persuaded that Mr Burton has discharged the onus on him to prove, on the balance of probabilities, that he has suffered an aggravation of his cervical spondylosis which arose out of, or in the course of, his employment. There are three reasons for this.

• [154] Mr Burton submitted that his activities outside of work were minimal in the context of the unremitting day-to-day activity at work of him standing with his neck in a forward flexed position.[262]

• [155] Mr Burton stated that after 2011, the physical exercise he took outside of work was:

• kayaking, five to seven times per year (with Mr Ferguson);

• [156] Mr Burton's evidence also was that he did indoor and outdoor rock climbing when he was young and that at the end of 2014, beginning of 2015, he tried chin-ups, which he stated he did on three occasions with five chin-ups each time.[264] Mr Burton stated that:

• at no time, during the exercise referred to above, did he feel any acute neck pain;

• he mentioned to co-workers that he enjoyed activities outside of work; and

• he did not mention anything to co-workers about non-work activities other than what his evidence was to the Commission.[265]

• [157] In cross-examination, Mr Burton was taken to Exhibit 4 being the records of the Hyperdome Physiotherapy Centre from which Mr Burton received treatment in 2012 and 2014. In giving his history to that centre in 2012, Mr Burton stated that the sports or hobbies in which he participated were tennis, golf and rock climbing.[266] In June 2014, Mr Burton reported to the Hyperdome Physiotherapy Centre, his sports or hobbies were golf, fishing and rock climbing.[267] In cross-examination, Mr Burton stated he did rock climbing three times and agreed that he never put down that he did fishing, kayaking or swimming.[268]

• [158] In further cross-examination, Mr Burton agreed that he had undertaken the sporting activities of rock climbing and kayaking and that from 2008 he had mentioned he did rock climbing to his work colleagues. Mr Burton stated that the rock climbing he was performing involved climbing about six or seven metres on a forty-five degree angle.[269]

• [159] Granted, Mr Burton spent more time at work than he did engaging in the sports and hobbies referred to above. However, in my opinion, considering what Mr Burton represented to the Hyperdome Physiotherapy Centre as being his sports and hobbies, and that he also did kayaking five to seven times per year after 2011, it is not accurate to state that Mr Burton's outside work activities were minimal in the context of the work he was performing.

• [160] By reference to Exhibit 13, being Mr Ray's diary entry for and made on 27 January 2015, Mr Ray stated that Mr Burton told him that day that he had neck pain from paddle boarding or kayaking.[270] Mr Burton's evidence was that he could not recall what he said to Mr Ray.[271]

• [161] In re-examination, Mr Ray was taken to Exhibit 14 being a document entitled 'Incident Notification' where on page 27 Mr Ray records:

At no time was I advised Evan had any kind of injury or issue from driving a truck.

On 27/01/15 Evan told me he had a sore neck & shoulder from Kayaking. I made notes of this in my diary. I have submitted a copy this diary entry via a Stat Dec.

• [162] Mr Ray stated that what he had written in that incident report was consistent with his diary note (Exhibit 13).[272]

• [163] In terms of the onset of neck pain Mr Burton suffered in January 2015, it is possible that the onset of his neck pain, or the aggravation of his cervical spondylosis, was from paddle boarding or kayaking.

Mr Burton's reporting of the onset of pain and attributing his work duties to the onset of his pain

• [164] Mr Burton submitted that the fact that, in the early stages, he was uncertain about the link between his work and his symptoms was hardly unsurprising until he received medical advice.[273]

• [165] In respect of his opinion in the memorandum he signed on 29 July 2020, Dr Tomlinson, in cross‑examination, was asked whether it was correct to say that a summary of the last paragraph in that memorandum (as set out in paragraph [109]) was that the aggravation caused by Mr Burton's work duties manifested in the form of neck pain experienced by Mr Burton. Dr Tomlinson responded by stating that:

That's what - that's what he's telling you about, neck pain, so - so I accept, you know, it's - that his work was a significant contributing factor which caused - which aggravated his cervical spondylosis and now this aggravation is manifested in the form of his neck pain.'[274]

• [166] Dr Tomlinson agreed that if work duties played a part in aggravating cervical spondylosis over a considerable period of time, the worker would be able to associate the onset of the worsening of neck pain with the work duties.[275] Dr Tomlinson further agreed that if the condition of cervical spondylosis was being worsened by the work duties, the person would experience the onset or worsening of pain in performing those work duties.[276]

• [167] It was suggested to Dr Campbell, in cross-examination, that if work duties caused an aggravation of cervical spondylosis, he would expect a patient could describe the onset of pain while performing work duties. Dr Campbell responded by stating that, in his opinion, with Mr Burton's diagnosis as a musculoskeletal injury, the cause of which has been his exposure to a poor posture at work and that because it was an over a period of time injury, other physical activities, including activities done after hours, and before he started the job, have contributed to the overall causation.[277] It was again put to Dr Campbell that if work duties were a contributing factor to the symptoms, he would expect Mr Burton to associate the pain with those work duties. Dr Campbell stated: 'Yes, so at some stage, yes', and further stated that as an over a period of time injury, there has to be a build-up of fatigue of the muscles and strain and then at some point the symptoms would come gradually which may not be on the first day but may be after a year or two.[278]

• [168] It was then put to Dr Campbell that if between 2011 and 2015 Mr Burton did not associate the onset or worsening of his neck pain with the performance of his work duties, it would be very difficult to conclude that those work duties were a contributing factor. Dr Campbell agreed in general, but stated that there would be circumstances where there may not be an association whilst at work but that, in general, he thought it was a reasonable assessment.[279] Dr Campbell further stated it would be consistent with the opinions he expressed if, between 2012 and 2015, Mr Burton had intervals of neck pain and stiffness which got worse and then got better.[280]

• [169] It was put to Dr Johnson in cross-examination that if Mr Burton's work duties caused or aggravated Mr Burton's cervical spondylosis, he (Dr Johnson) would expect Mr Burton to associate that pain with his work duties. Dr Johnson replied by stating that he (Mr Burton) would associate the onset of new symptoms with the incident that immediately preceded the onset of those symptoms.[281]

• in 2002, he hit the top of his head on the underneath of the body of a vehicle which caused him neck pain ('the 2002 incident');

• between 2002 and 2012, he did not have ongoing neck pain; and

• halfway through 2012, his neck would lock up, he could not move his head anywhere and that his neck would lock up for a month, every three to four months.[282]

• [171] In cross-examination, Mr Burton stated that in 2012:

• he was experiencing neck pain while performing his work duties; and

• he was not aware that any of his work duties were causing him to experience neck pain.[283]

• [172] In further cross‑examination, Mr Burton agreed, when taken to Exhibit 4, page 53 (the patient history completed for the Hyperdome Physiotherapy Centre dated 14 June 2012), that:

• he did not indicate, as at June 2012, that he considered his neck pain was interfering with his work duties;[284] and

• as at 2012, the only thing that made his neck pain worse was looking around.[285]

• [173] Mr Burton described that in January 2015, his neck symptoms increased when he was driving a truck at work, was looking left to right to see traffic and then something sharp went down his left arm into his fingers, being symptoms he had not experienced previously. Mr Burton reported that to Mr Ray.[286] Mr Burton also agreed that the only two times he associated his work duties with the onset or worsening of his neck pain were the 2002 incident and the incident driving the truck in January 2015.[287]

• he did not attribute the symptoms he was having to work;

• when he attended the Beenleigh Medical Centre and saw Dr Delaney (in May 2015) for medical treatment, he received some advice about what might be causing his neck symptoms; and

• he then formed a view about the cause of his symptoms namely: '... I thought it was guaranteed work.'[288]

• [175] Mr Burton's submission that he was uncertain about the link between his work and his symptoms until he received medical evidence is not the point about the evidence of Dr Tomlinson and Dr Campbell. Both Dr Tomlinson and Dr Campbell were of the opinion that over a period of time, a person would associate their work duties with the onset of pain in their neck. Dr Tomlinson also agreed with the converse, namely, that if Mr Burton did not experience the onset or, at least, did not notice the onset or worsening of neck pain as a result of performing his work duties, it would be very difficult to conclude that those work duties were an aggravating cause.[289] Although not expressing exactly the same opinion as Dr Tomlinson and Dr Campbell, Dr Johnson opined that a person could associate symptoms with an incident before the onset of pain.

• [176] Even if Mr Burton's case is considered for the period that he worked at Stapylton, and subsequently Underwood over the period from 2011 to 2015, Mr Burton did not associate his neck pain with any of his work duties until after he stopped working in late January 2015 and when he consulted Dr Delaney in May 2015.

• [177] Further, Dr Johnson went on to say that the degenerative changes in the cervical spondylosis may be painless, but if there is a lot of cervical degeneration, then a high substrate of relatively unhealthy tissue can become painful even through a fairly trivial activity, for example, Mr Burton turning his head suddenly in the truck in January 2015. Dr Johnson likened Mr Burton's cervical spondylosis to dry grass upon which a match was thrown.[290] Mr Burton's evidence was that one of the only two times he associated the onset or worsening of neck pain with his work duties was the incident driving the truck in January 2015.[291] That is not the case Mr Burton agitates in this appeal.

• [178] Given the evidence of Dr Tomlinson and Dr Campbell in cross-examination, and to a lesser extent Dr Johnson, in assessing whether there is a causal connection between Mr Burton's work duties and an aggravation of his cervical spondylosis, it is significant that Mr Burton never associated his neck pain with his work duties until the time he saw Dr Delaney in May 2015.

• [179] There are competing opinions of the specialists. As referred to earlier, it is simply not a matter of adding up the witnesses on each side in coming to a conclusion. While I accept that Dr Delaney, Dr Tomlinson, Dr Johnson and Dr Campbell all opine that Mr Burton's employment aggravated his cervical spondylosis, I am not persuaded that their evidence establishes that conclusion to be more than a possibility.

• [180] For the same reasons I gave earlier, I am cautious about accepting the evidence of Dr Delaney. Dr Delaney's evidence was that there was no requirement for science and, simply, that if a patient such as Mr Burton, has degenerative change confirmed on scans, and was a relatively young patient, with no other employer and no other real obvious mechanism of injury, then Mr Burton's work had to be a contributing factor to the degenerative change.[292]

• [181] Furthermore, as I read Dr Delaney's reports dated 25 January 2016[293] and 18 February 2019,[294] Dr Delaney did not seem to consider at all that Mr Burton's neck pain may have been a result of an aggravation of his cervical spondylosis caused by factors other than Mr Burton's employment.

• [182] In fact, in his evidence-in-chief, Dr Delaney stated that the impression he had was that the chin-ups referred to by Mr Burton - when Mr Burton first consulted him on 6 May 2015 - was probably an aggravating factor but that '... this was a degenerative process which was already present well before he was doing the chin-ups, and that the - the most likely explanation was the cumulative work, the type of work he had done for that - for that 23 years, basically.'[295] In my opinion, this evidence is that it was a possibility that in respect of the neck pain Mr Burton was experiencing from 2015, the chin-ups he performed may have aggravated his cervical spondylosis.

• [183] Dr Tomlinson's opinion, in my view, expressed in the memorandum he signed on 5 March 2019, did not seem to me to be about an aggravation of Mr Burton's cervical spondylosis but was about the injury Dr Tomlinson diagnosed in his report dated 26 August 2017, namely, acute C6/C7 disc protrusion with a left C7 radiculopathy. In relation to Dr Tomlinson's opinion expressed in the memorandum he signed on 29 July 2020, that after a consideration of Mr Burton's work practices which involved 'sustained' periods of neck flexion and in considering Mr Burton's recreational activities, it was likely that Mr Burton's work was a significant contributing factor which caused an aggravation of his cervical spondylosis with the aggravation being in the form of the neck pain Mr Burton experienced.

• [184] However, the work history referred to by Dr Tomlinson in the memorandum he signed on 29 July 2020 concerned Mr Burton's work tasks performed over the period of 2011 or 2012 to 2015 which was said to have aggravated his cervical spondylosis. While it is true that in 2011, when Mr Burton was at Stapylton, for seven months he spent the majority of that time working at a work bench, and for most of that time he had been looking down at the control boxes he assembled, the same cannot be said for Mr Burton's work between 2012 and 2015 when he returned to Underwood. For the reasons given earlier, in my view, the amount of time Mr Burton spent on a work bench was significantly reduced and that less than half of his time was spent at a work bench during that period.

• [185] Dr Johnson agreed that there was a distinction between information Mr Burton's lawyers provided to him (namely, that he commenced experiencing pain shortly after the promotion at work in March 2012 and continued to experience neck pain throughout 2012 to 2015) compared to the history given to him by Mr Burton (namely, that Mr Burton did not give any history of increased neck pain between 2012 and 2015). Dr Johnson was unable to state what percentage of time Mr Burton spent with static neck flexion in the workplace or what Mr Burton's work tasks were. Dr Johnson relied on information provided by Mr Burton's lawyers, namely, that Mr Burton's work tasks performed throughout the period of 2012 to 2015 involved a significant amount of static neck flexion, in particular, while Mr Burton was performing work at a work bench. Dr Johnson described a significant amount of static neck flexion as being, over an eight hour day, looking down for a large portion of the day. For the reasons given earlier, that does not accurately describe the work Mr Burton performed at Underwood between 2012 and 2015.

• [186] Dr Campbell's opinion, expressed in the memorandum he signed on 13 February 2019, was on the basis that Mr Burton was standing with his neck in a fixed position looking down at a bench for 70% of his working day between 2012 and 2015. On the basis of the facts as I found them, that does not describe Mr Burton's work activities at Underwood between 2012 and 2015.

• [187] Further, Dr Campbell was also of the opinion that the onset of symptoms from 2012 was consistent with the fact that Mr Burton's role changed such that he was performing less work away from the bench from that time. However, Mr Burton's neck symptoms at that time could equally be explained by the sports or hobbies he had been doing prior to that time and was performing at about that time, including kayaking and rock climbing.

• [188] In addition, Dr Campbell's evidence was that with Mr Burton's diagnosis as a musculoskeletal injury, the cause of which had been his exposure to a poor posture at work and that because it was an over a period of time injury, other physical activities including activities done after hours and before the start of the job contributed to the overall causation. For these reasons, I am persuaded that Dr Campbell's opinion only establishes that it is a possibility that Mr Burton's work aggravated his cervical spondylosis.

• [189] Dr Atkinson was closely cross-examined on his opinions expressed in his report dated 19 May 2016 and in the memorandum he signed on 15 February 2019. It was put directly to Dr Atkinson that if, for a period of three to four years Mr Burton was at work standing with his neck in a forward flexed position with his chin on his chest looking down for 70% of his work day between 7.00 am and 5.00 pm, it was likely that the pain in his neck in 2012, and aggravated in 2015, was related to that work.[296] Dr Atkinson did not think that was likely.[297] Similarly, Dr Atkinson did not accept (for the reasons set out earlier in these reasons for decision where I have summarised his evidence) the proposition that in 2011, for 10 months, when Mr Burton spent 80% to 90% of his time at the workbench, that was consistent with Mr Burton, within six months, complaining of neck pain causing him to go and see his General Practitioner and physiotherapist in mid-2012.[298] In any event, those matters, as put to Dr Atkinson, are not as I have found them in relation to Mr Burton's work at Stapylton in 2011 and then at Underwood until 2015.

• [190] In my view of the medical evidence as a whole, including having regard to the facts upon which Dr Tomlinson, Dr Johnson and Dr Campbell expressed their opinions, my assessment is that their evidence establishes that it is a possibility that Mr Burton's employment aggravated his cervical spondylosis. However, that is not enough to persuade me, on the balance of probabilities, that Mr Burton's employment had a causal connection with any aggravation of his cervical spondylosis.

• [191] I am of the opinion that Dr Atkinson's evidence is more persuasive. On my reading of the three articles to which Dr Atkinson's attention was drawn, his criticisms about those articles are valid. The first article was about an individual study about a person using an iPhone. The second article was equivocal in relation to the connection between a person bending the neck and neck pain. The third article was equivocal in relation to the relationship between neck rotation and neck pain. The AMA Guides suggested that neck flexion and rotation were not statistically significantly associated with neck pain. Dr Atkinson's opinion was that Mr Burton's history of intermittent neck pain from 2012, until it worsened after doing chin-ups in 2015, was typical of cervical spondylosis. Mr Burton was a kayaker doing that activity five to seven times per year after 2011 and, at least from 2008, he was a rock climber. Dr Atkinson's opinion was that he was inclined to the view that the sporting activities Mr Burton was doing were more likely to cause an aggravation of cervical spondylosis.

• [192] For these three reasons, I am not persuaded that any aggravation of Mr Burton cervical spondylosis arose out of, or in the course of, his employment as he contended. The evidence, in my view, does not rise above the level of it being possible that Mr Burton's cervical spondylosis was aggravated by his work duties with JJ Richards.

Was Mr Burton's employment a significant contributing factor to his cervical spondylosis or to an aggravation of his cervical spondylosis_?_

• [193] The requirement that the employment is a significant contributing factor to the injury requires that the exigencies of the employment must contribute in some significant way to the occurrence of the injury.[299] The test applied in determining whether employment was a significant contributing factor must be applied in a practical way.[300]

• [194] The determination of whether Mr Burton's employment was a significant contributing factor to his injury, requires a consideration of whether or not the exigencies of his employment contributed in some significant way to the occurrence of the injury.

• [195] For the reasons given earlier in paragraphs [153] to [192], I am not of the view that Mr Burton's employment was a significant contributing factor to his cervical spondylosis.

• [196] Similarly, for the reasons given in paragraphs [153] to [192], I am not of the view that Mr Burton's employment was a significant contributing factor to any aggravation of his cervical spondylosis.

• [197] The questions in this appeal were whether Mr Burton's employment with JJ Richards between 1992 and 2015 had a causal connection with his cervical spondylosis or an aggravation of his cervical spondylosis and whether his employment was a significant contributing factor to his cervical spondylosis or an aggravation of it.

• [198] For the reasons given, I am not persuaded that Mr Burton has discharged the onus on him and I confirm the review decision of the Regulator.

• [199] I will hear the parties as to the question of costs.

1. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent dated 14 September 2017 is confirmed.

2. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:

(a) the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Friday, 21 January 2022; and

(b) unless otherwise ordered, the decision on costs be determined on the papers.

[3] Mr Burton's amended statement of facts and contentions filed on 19 February 2019 ('Mr Burton's contentions'), fourth page, para. 2 and the Regulator's further amended statement of facts and contentions filed on 29 March 2019 ('the Regulator's contentions'), fifth page, para. 1a.

[4] Mr Burton's contentions, third page, para. 2.

[5] Mr Burton's contentions, third page, para. 3.

[6] The Regulator's contentions, fifth page.

[7] Mr Burton's contentions, fourth page, para. 2.

[8] The Regulator's contentions, fifth page.

[9] Church v Workers' Compensation Regulator [2015] ICQ 031; (2015) 252 IR 461, [27] (Martin J, President).

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

[15] The Regulator's submissions filed on 23 February 2021 ('the Regulator's submissions'), para. 3.

[16] Mr Burton's contentions, first and second pages, paras. 3 to 9 and third page, para. 3.

[17] The Regulator's contentions, pages 1 and 2, paras. 4-6.

[18] The Regulator's submissions, para. 191.

[26] T 1-17, ll 35-43 and T 1-18, ll 1-7.

[30] T 1-22, l 38 to 1-23, l 13 and T 1-24, ll 15-16.

[62] T 3-30, ll 21-29 and T 3-38, ll 14-20.

[136] Mr Burton's submissions filed on 16 March 2021 ('Mr Burton's submissions'), para. 16.

[137] Mr Burton's submissions, para. 17.

[138] Mr Burton's submissions, para. 18.

[139] Mr Burton's submissions, paras. 18-19.

[140] Mr Burton's submissions, paras. 20-21.

[141] Mr Burton's submissions, para. 22.

[142] Mr Burton's submissions, para. 23.

[143] Mr Burton's submissions, para. 24.

[144] Mr Burton's submissions, para. 25.

[145] Mr Burton's submissions, para. 26.

[146] Mr Burton's submissions, para. 27.

[147] Mr Burton's submissions, paras. 28-36.

[148] Mr Burton's submissions, paras. 37-51.

[149] Mr Burton's submissions, para. 52.

[150] The Regulator's submissions, para. 138.

[151] The Regulator's submissions, paras. 139-140.

[152] The Regulator's submissions, paras. 141-142.

[153] The Regulator's submissions, para. 143.

[154] The Regulator's submissions, paras. 144-147.

[155] The Regulator's submissions, paras. 148-149.

[156] The Regulator's submissions, paras. 151-154.

[157] The Regulator's submissions, paras. 155-172.

[158] The Regulator's submissions, paras. 172-173.

[159] The Regulator's submissions, paras. 174-191.

[173] T 3-56, ll 5-10 and T 3-58, ll 1-5.

[174] Mr Burton's evidence was that he did no installation work at Stapylton until approximately the last two months and that he did no installation work at Underwood from 2012.

[182] T 2-27, ll 25-29 and Exhibit 2, page 32.

[235] GAM Ariens et al, 'Are neck flexion, neck rotation, and sitting at work risk factors for neck pain? Results of a prospective cohort study' (2001) Occupational and Environmental Medicine 58(3), 200-207.

[240] Mr Burton's submissions, paras. 57-82.

[241] The Regulator's submissions, para. 194.

[242] The Regulator's submissions, paras. 195-196.

[243] Kavanagh v Commonwealth [1960] HCA 25; (1960) CLR 547, 558-559 (Fullagar J).

[244] Avis v WorkCover Queensland [2000] QIC 67; (2000) 165 QGIG 788, 788 (Hall P).

[245] Theiss Pty Ltd v Q-Comp [2010] ICQ 27 [3] (Hall P).

[246] Omanski v Q-Comp [2013] ICQ 7, [11] (President Hall).

[247] Heald v Q-Comp [2004] QIC 74; (2004) 177 QGIG 769, 771 (President Hall).

[249] JBS Australia Pty Ltd v Q-COMP [2013] ICQ 13, [4] (President Hall).

[250] Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262, [80] (Spigelman CJ).

[252] [2019] QIRC 203 ('Ribeiro').

[253] Ribeiro (n 252), [43], [44], [46], [50], [51] and [53] respectively. Citations omitted.

[257] The Regulator's submissions, para. 197.

[258] T 3-17, ll 34-44. In fact, Dr Johnson opined that if a person did not have cervical spondylosis, he would consider that person to be '... an alien.'

[262] Mr Burton's submissions, para. 85.

[270] T 3-69, l 38 to T 3-70, l 14 and T 3-84, ll 18-19.

[273] Mr Burton's submissions, para. 86.

[284] When Mr Burton attended the Hyperdome Physiotherapy Centre on 13 February 2014, he stated that his neck pain interfered with his work: Exhibit 4, page 56.

[299] Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48; (2006) 1 Qd R 519, [27] (Keane JA, de Jersey CJ at [1] and Muir J at [49] agreeing) cited with approval by Martin J, President in Simon Blackwood (Workers' Compensation Regulator) v Civeo Pty Ltd and Anor [2016] ICQ 001, [20].