Gay v Workers' Compensation Regulator [2018] QIRC 125

Queensland Industrial Relations Commission|2018-09-27|Before: Swan DP, Swift Australia P, Mr J

WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR - Whether Appellant is prohibited from applying for assessment of permanent impairment pursuant to s 132A of the Act - Whether the Appellant has previously made a claim for compensation at s 132A of the Act - Specialist medical opinion unhelpful to Appellant - Determined that the first claim made by the Appellant prohibits the Appellant for making a further claim pursuant to s 132A of the Act - Appeal dismissed.

Sayers v Hanson t/as Alguard Security Services [2011] QSC 70

Parnell v WorkCover Queensland [2006] QSC 303

Otto v Mackay Sugar Ltd & Anor [2011] QSC 215

Ley v Woolworths Limited [2013] QSC 59

Kelly v WorkCover Queensland [2002] 1 Qd R 496

Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166

Andersen v Aged Care Employers Self Insurance [2011] QSC 101

Dowd v Swift Australia P/L [2008] QCA 228

Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 7005

Mr J. Greggery QC, instructed by Ms T. Cox of Organic Legal for the Appellant.

Ms D. Callaghan of Counsel, directly instructed by Mr M. Cutting of the Workers' Compensation Regulator, the Respondent.

[1] This Appeal is made by Mr Aaron Scott Gay (the Appellant) against a decision of the Workers' Compensation Regulator (the Regulator) on 24 May 2017, confirming the decision of WorkCover Queensland dated 13 December 2016, to reject the Appellant's application for assessment of permanent impairment pursuant to s 132A of the Workers' Compensation and Rehabilitation Act 2003 (the Act).

[2] The basis of the Regulator's decision was that, as the Appellant had already lodged an application for compensation on 27 August 2014 for his lumbar spine injury, the Appellant was not entitled to utilise s 132A of the Act.

132A Applying for assessment of DPI before applying for compensation

(1) This section applies to a worker who has not made an application under section 132.

(2) The worker may apply to the insurer to have the worker's injury assessed under section 179 to decide if the worker's injury has resulted in a DPI.

(i) a certificate in the approved form given by a doctor who attended the worker; and

(ii) any other evidence or particulars prescribed under a regulation.

Mr Aaron Scott Gay, the Appellant;
Ms Ruth Birtwell, WorkCover Queensland Claims Representative;
Mr Nicholas Andrew Bohlsen, co-worker;
Mr Frances Wharetoua Taylor, co-worker;
Ms Jenelle Gay, Appellant's wife; and
Dr John Maguire, Orthopaedic Surgeon.

Mr Jason William Flynn, Regional Manager North Queensland/Northern Territory, Kent Transport; and
Dr Richard Jiang, General Practitioner.

[6] The Appellant worked as a furniture removalist with Kent Transport based in Townsville. The Appellant claims to have suffered an injury to his lumbar spine over a period of time in 2014 when he was lifting pianos for the Townsville Chamber Music Festival.

[7] The Appellant had initially lodged an application for Workers' Compensation on 27 August 2014, with an accompanying Workers' Compensation Medical Certificate identifying the injury as "lumbar back strain" he had felt when lifting a filing cabinet on 14 August 2014. That claim was rejected by the Regulator on the basis that there was insufficient evidence that he had suffered an injury from performing that activity.

[8] The Appellant then applied on 10 October 2016, for an assessment of permanent impairment for an injury he claims to have suffered when lifting and moving pianos over a specific period of time from 28 July 2014 to 10 August 2014. That application was rejected on the basis that it was the same injury as the injury for which he had unsuccessfully sought compensation, viz., application for compensation dated 27 August 2014.

[9] In determining this matter, the Appellant submitted that consideration should be given to whether the injury caused by lifting the filing cabinet was the same injury that was caused by lifting and moving pianos over a period of time.

[10] Section 132A(1) of the Act (cited above) provides firstly that the section applies to a worker who has not made an application under s 132 of the Act and secondly, at s 132A(2), that the worker may apply to the insurer to have the worker's injury assessed under s 179 to decide if the worker's injury has resulted in a Degree of Permanent Impairment (DPI).

[11] While s 132A(1) relates to whether the worker has made an application for compensation, the Appellant submits that s 132A(2) should be interpreted as though it included the words "for the same injury" at the end of the section.

[12] The Appellant submitted that the Act, with regard to applications for compensation, considers whether there is proof of an injury which is compensable because it arises out of the employment. That focus of the assessment occurs by reference to the event that caused the injury.

[13] Section 31 of the Act defines "event" as "anything that results in injury ... to the worker". Section 32 of the Act defines "injury" as a "personal injury arising out of, or in the course of employment if (a) for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury.

[14] The Appellant contends that in an application for compensation where there is no proof of injury, the application would not satisfy the statutory requirements of the Act.

[15] The Appellant referenced a number of cases where the focus was upon the interrelated definitions of "event" and "injury" within the context of claims for damages under s 237 of the Act, viz.,:

237 General limitation on persons entitled to seek damages

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

(i) has received a notice of assessment from the insurer for the injury and the DPI for the assessed injury is more than 5 per cent; or

(b) a dependant of the deceased worker, if the injury results in the worker's death.

(2) The entitlement of a worker, or a dependant of a deceased worker, to seek damages is subject to the provisions of this chapter.

(a) is required under section 239 to make an election to seek damages for an injury; and

(b) has accepted an offer of payment of lump sum compensation under chapter 3, part 10, division 3 for the injury; the worker is not entitled to seek damages.

(4) However, subsection (3) does not prevent a worker from seeking damages under section 266.

(5) To remove any doubt, it is declared that subsection (1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker.

[16] The Appellant referred to some authorities where the particulars of the case determine whether the injury which was the subject of the claim for damages was the same injury which had been accepted in the claim for compensation.

[17] In the matter of Sayers v Hanson t/as Alguard Security Services[1] ('Sayers'), the applicant in that matter claimed to have been subjected to bullying and harassment after she had taken leave from work, having discovered a body which had fallen from a high rise building.

[18] The applicant claimed that there was one single psychiatric injury from both events. However, the Court determined that the psychiatric injury for which damages were sought was different to the application made concerning the particular event of finding the body and not an injury sustained over a period of time.

[19] The Appellant submitted that Sayers shows that the description of the event is relevant to the extent that the same description of an injury in an application for compensation and an application for damages does not determine whether the injury was in fact the same.

[20] The Regulator's comments concerning Sayers was that the Court had been clear that there were two separate injuries incurred by the applicant in that matter. The injury incurred from seeing the body was an entirely different injury to that referenced in a later claim relating to harassment and bullying. That injury was deemed to be a subsequent injury.

[21] In Parnell v WorkCover Queensland[2] ('Parnell'), the Appellant submitted that the applicant in that matter, had a claim for compensation granted when she had suffered physical injuries from a fall at work. The acceptance of a lump sum payment precluded her from seeking damages for her physical injuries. She later issued a claim for damages for the psychiatric injury caused by her physical injury. The Court determined that the application for compensation related only to the physical injuries, determining that s 237(1)(d) of the Act was to be interpreted according to its plain meaning.

[*It should be noted that the Act in force at the relevant time to this Appeal i.e. July/August 2014, does not contain s 237(1)(d) as it did at the time of Parnell. Ultimately, s 132A is the comparable section to s 237(1)(d) as discussed in Parnell.]

[22] The Regulator submitted that the matter of Parnell[3] was authority for the proposition that when determining whether a previous application for compensation prevents serving a later notice of claim, the emphasis was on the injury rather than the event.

[23] In Otto v Mackay Sugar Ltd & Anor[4] ('Otto') the Appellant submitted that the same process of looking at the substance of the application rather than the mere description of injury resulted in a different outcome.

[24] In that case, the application for compensation (dated 1 October 2009) which referred to "trauma to muscles/tendon not classified" was rejected. The application had referred to a particular date of injury (13 February 2009) but added that there was no identification as to how the injury occurred as there was no particular time or date referenced. Later, the applicant in that matter claimed damages for an injury described as "back pain". The "back pain" is said to have been caused by the applicant washing down coolers at work in early 2009. This pain was then aggravated later that year. During the application for compensation WorkCover Queensland stated that the applicant did not indicate any particular event, instead claiming that a number of things could have caused his injury. The applicant had been unable to identify what happened or even whether an injury occurred.

[15] When one examines the available evidence, it is artificial, to my mind, to treat the workers' compensation application as referring to an event that actually happened on 13 February 2009. This conclusion is more readily available because nobody, including the applicant, has alleged that such an event occurred. The application, in referring to "no specific injury time or date" is itself equivocal and the evidence is that his complaints have consistently referred to a condition developed over time not linked to a particular event. In that context the description of the events leading to his injury in his application for review of the decision rejecting his claim for workers' compensation is only consistent with events that occurred over time.

[16] In those circumstances the conclusion seems inevitable that the lower back injury for which he wanted workers' compensation is the same injury as that for which he now seeks common law damages, namely the back injury arising from his work over the period during 2009 described in his notice of claim for damages.

[17] In other words, to decide that "the injury" referred to in the workers' compensation claim was not the same as the one sought to be litigated in the common law damages claim merely because the application for workers' compensation, which may not have been the applicant's own document, mistakenly nominated a specific date as the date of the injury would lead to an artificial result that ignored the true facts[5].

[26] While contending that the outcome in Otto did not assist the Appellant's case in this matter, it highlights the Court's approach to assessing the true facts of the injury, the subject of the application for compensation.

[27] Ley v Woolworths Limited[6] ('Ley') related to a butcher who on 16 February 2011, made an application for compensation for an injury described as "strain of cervical spine" and listed "neck, left shoulder, arm, hand", as the affected parts of his body. He identified a particular time when this injury occurred viz., 4 January 2011 at 7.30 am. In the applicable application form, he had left the box "over a period of time", uncrossed.

[28] The injury was said to have occurred when the applicant was slicing meat which was a normal component of his work. On 3 March 2011, he told an investigator that he not had any symptoms prior to 4 January 2011 but was unable to identify an activity which had caused the onset of his symptoms. He stated "I can't remember any one specific incident that made my shoulder and neck sore that day".

[29] On 5 December 2011, the applicant consulted an orthopaedic surgeon for the purpose of assessing permanent impairment. The report of the orthopaedic surgeon referred to the onset of symptoms without anything out of the ordinary occurring on 4 January 2011, but made commentary about degeneration shown on the cervical spine imaging. On 12 December 2011, four days prior to the notice of assessment being issued, the applicant's solicitors served an urgent notice of claim for damages relating to "cervical spine" injury and specified the nature of the injury as "musculoligamentous and disc". The date of the injury was "over a period of time from 17 December 2008 to 2 February 2011". A dispute then arose about whether the injury said to have been suffered over a period of time was the same as the injury which was assessed in the notice of assessment.

[19] It is not clear that when the applicant signed the application he had received medical advice concerning causation of the condition he was suffering from. The evidence however does show that in March and April 2011 the respondent had received expert orthopaedic opinion that the applicant's continued symptoms were not attributable solely to the activity of 4 January 2011 when the applicant was slicing meat but might be attributable to a degenerative cervical spine disease... the applicant's solicitor when she authored the notice of claim for damages on 12 December 2011 identified the circumstances giving rise to the injury the subject of the notice as workplace practices occurring over a period of time from 17 December 2008 until 2 February 2011.

[21] So while it may be that different "events" within the meaning of that term found in s 31 of the WCRA have been expressly or by implication identified when the application for compensation is compared with the notice of claim for damages on the view I take the same "injury" within the meaning of that term used in s 32 of the WCRA is the subject of both the application and the notice of claim...

[22] The injury referred to in the application for compensation should be regarded as the same injury the subject of the notice of claim for damages[7].

[31] The Appellant submits that the facts in Ley[8] are also distinguishable from the circumstances in this Appeal. The Appellant says that the reasoning of North J are "wholly consistent" with the Appellant's position that, upon proper analysis, the Appellant's application for assessment of permanent impairment for his lumbar spine caused by lifting and moving pianos over a period of time, was not the same injury as the back strain caused by lifting a filing cabinet at a later date.

[32] The Appellant referred to the grounds for the rejection of his application for compensation. Cited in the WorkCover Queensland "Reasons for Decision" dated 1 October 2014, was the following:

Whilst WorkCover Queensland are satisfied that there has been a work related event reported to your employers on 14 August 2014, there hasn't been any medical evidence provided to confirm that this work related event has directly resulted in an injury as you did not seek medical attention immediately. It is also noted that you continued to work after the reported work related event.

It was not until you had been at home after work on 23 August performing non-work related tasks that you have required the direct attention of Queensland Ambulance Service. Therefore it cannot be concluded that the injury that is currently causing your incapacitation was a direct result of a work related event that occurred on the 14 September 2014[9].

[33] The Appellant stated that there were two matters from those reasons which should be considered. The first was that there had been no expert medical opinion of the diagnosis and cause of the injury. The only positive finding was that the Appellant had not proved that he had suffered an injury from lifting filing cabinets on 14 August 2014. The Appellant further stated that:

The lack of evidence about a discrete injury on 14 August 2014 was not a positive finding of a work-related injury, which pre-dated the incident of 14 August 2014. If anything, it suggested that events after 14 August 2014 were the cause of the Appellant's failure to prove he suffered an injury on 14 August 2014 but there was no positive finding on that point either. It was beyond the scope of facts before WorkCover Queensland to make a positive finding of pre-existing injury. It would be an error to conclude that the decision rejecting the application amounts to a positive finding that on 14 August 2014 there was an exacerbation of an existing injury or any pre-existing injury at all. There is an obvious unfairness about rejecting the application for compensation on the basis that the Appellant didn't suffer an injury and refusing his application for assessment of permanent impairment on the basis it was the injury the subject of the application for compensation[10].

[34] The practical consequence of the rejection of the application for compensation on 1 October 2014, was that the injury was never reviewed by experts in the course of the process of assessing permanent impairment and therefore never the subject of expert diagnosis and opinion as to causation.

[35] The Appellant submits that the absence of any finding about injury or any assessment of permanent impairment puts this case into a different category to the starting point in the decisions of Ley[11], Sayers[12] and Parnell[13] where there was an identified injury which was accepted in the course of the application for compensation. Ley and Sayers concerned injuries which had been the subject of a notice of assessment so that the assessed injury could be compared to an injury for which damages were claimed. In Parnell there was an obvious difference between the described injuries and the outcome turned on the narrow interpretation of s 237(1)(d) of the Act at that time [viz., s 132A being the comparable section to the matter at hand].

[36] It was submitted that this case was similar to the commencement point in Otto[14] where the application for compensation was rejected although, the basis upon which the application was rejected, was a positive finding that there was an injury in the nature of a degenerative condition which was not work related. The Court in Otto was to compare that positive finding with the injury for which damages were claimed.

[37] In this matter, the Appellant states that one has to identify the nature of the injury suffered by the Appellant for which he applied for an assessment of permanent impairment. Dr Maguire, orthopaedic surgeon, expressed his expert opinion and that should be considered together with the lay evidence of symptoms and incapacity. The Appellant contends that the next step is to then determine the nature of the injury alleged in the application for compensation and from that finding, the mixed question of fact and law in s 132A(1) of the Act can be determined.

[38] Without traversing all of the cases mentioned in both submissions, it is the Regulator's submission that despite similar wording at s 253(3) of the previous Act (viz., WorkCover Queensland Act 1996), the clear meaning of s 132A applies and the section is not applicable to a person who has made an application for compensation for an injury whether successful or otherwise.

[39] The Regulator referred to the decision of Atkinson J in Kelly v WorkCover Queensland[15] ('Kelly'), which was upheld on Appeal, where Her Honour referred to s 253 of the WorkCover Queensland Act 1996 and the prohibition it placed upon certain persons with regard to applications for common law damages for injury. In that decision Her Honour stated:

Therefore, only those persons specifically mentioned in subs (1) may bring an action for damages. The only subclause which is relevant here is subcl (c) which provides that the following persons are entitled to seek damages, that is "the worker" if the worker has not lodged an application for compensation for the injury.

In this case, it is common ground that the worker, being the applicant/plaintiff, did lodge an application for compensation for the injury. However, his application for compensation was unsuccessful. An applicant for compensation who lodges an application unsuccessfully under the Act is not a person who is entitled to seek damages.

It does not matter whether or not the application was successful or unsuccessful. For this purpose, the question is merely whether or not such an application was lodged. Such an application was lodged in this case. [16]

[40] The Regulator considered circumstances where there may be different "events" nominated in an application for compensation and notice of claim for damages. In those circumstances, unless there are grounds for distinguishing this matter from the decisions of superior Courts, the decision of a superior Court, or in the case of Kelly, the Court of Appeal is a precedent which must be followed (see Moffatt P, NSW Court of Appeal, Proctor v Jetway Aviation Pty Ltd[17])

[41] In responding upon the question of law, the Regulator stated that s 108 of the Act is relevant in that compensation is payable under the Act for an injury which is a personal injury pursuant to s 32. Andersen v Aged Care Employers Self Insurance[18] is authority for the proposition that the compensation awarded is not for an event or incident at work, but compensation for the injury that arose from that event or continuous or repeated exposure to substantially the same conditions that result in that injury.

[42] Upon the question of where there may be "different events" nominated and a notice of a claim for damages has been determined in the Supreme Court of Queensland, both the Court of Appeal and Trial Division as well as in the District Court, are instructive in this claim. To this end, the Regulator cited the following matters:

[43] In Dowd v Swift Australia P/L[19], the Court of Appeal dismissed an application for leave to appeal against a decision of the District Court to dismiss an application to strike out part of the employee's statement of claim. The basis for the application to strike out paragraphs of the statement of claim was that those paragraphs referred to allegations that the employee may have injured his back over a period of time between September 1999 and 13 April 2002, or alternatively, whilst on light duties on 14 May 2002, both in the alternative to the date of injury which initially was nominated in the notice of assessment and claim for compensation as 13 April 2002.

[44] Dutney J, with whom Keane JA and Mackenzie AJS agreed, stated:

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

[12] Section 253 and s 66 of the Act in force at the time of the respondent's injury, limited the right to commence an action for damages for personal injury to a worker who had received a Notice of Assessment for the injury. Section 266 identified the Notice of Assessment as one under Chapter 3 Part 9 of the Act.

[13] Chapter 3, Part 9 is concerned with the identification of, and assessment of permanent disability arising from an injury. While undoubtedly, the date an injury is suffered is significant in its identification, it is not per se a matter to which the statutory provisions make reference[20].

[45] The matter which the Regulator believed was most apt for consideration in this Application was Anderson v Aged Care Employers Self Insurance[21].

[46] In that matter, the applicant had sought a declaration that her L5/S1 prolapsed disc had already been assessed. In the applicant's application for compensation it was stated that the disc prolapse had occurred out of events which happened on 22 or 23 August 2007 and had received a notice of assessment in relation to the injury, where such notice referred to the injury of 23 August 2007. The applicant proceeded to give notice of claim for two injuries; one on 20 or 21 August 2007 and another on 23 August 2007. The self-insurer stated that the claim for the first injury (20 or 21 August 2007) had not been assessed.

An injury is not the means by which damage is inflicted, but is the effect on the person of the worker of an event, as can be readily seen when the schedules to the WCR Regulation are perused. In common parlance one might speak of being injured by lifting a heavy load. But in terms of the WCRA definitions, lifting the heavy load is the event, the injury is what results from that, say a back strain[22].

[48] Dalton J found that the applicant had suffered from and had been assessed for one injury. That injury was the L5/S1 disc prolapse or strain of her lower back with aggravation of pre-existing degeneration of the lumbosacral disc, whether there was one incident or two.

Ms Andersen's application for compensation was for one injury within the meaning of the WCRA. That injury was described by her as "L5/S1 prolapsed disc" and ACES accepted it as a "strain of lower back with aggravation of pre-existing degeneration of the lumbosacral disc", in accordance with the description of its doctor, Dr McPhee. Ms Andersen's statement of 11 September 2007 was manifestly about one injury, as defined, see the underlined parts extracted above. It described one set of symptoms: pain in her lower back and down her right leg, first temporarily, and then more permanently. It described her attendance on her doctor for that injury when the pain from it persisted, and the doctor's diagnosis of it. The statement says that Ms Andersen did not know what had caused her injury, but suggested two events within the meaning of the WCRA - on 22 and 23 August 2007 - as possibilities. Dr Martin thought the earlier event the likely cause; Dr McPhee, the later. The point is, both of them assessed one injury, and this is evident from the underlined parts of their reports, above[23].

[50] An orthopaedic surgeon (in that matter) who had considered the matter three years after those events concerning the two incidents, relied upon the applicant's history and as a result of "the artificiality of this exercise" attempted to attribute a separate "temporary exacerbation" to each event. This, the Appellant submitted, is not dissimilar to the matter at hand.

[51] In determining the question as to whether s 132A of the Act precludes the Appellant from proceeding with his application for assessment of permanent impairment made on 10 October 2016, the law and the factual evidence concerning the events at the Appellant's workplace during the period in question requires consideration.

[52] The Appellant commenced work with Kent Transport Pty Ltd (the employer) as a furniture removalist under a contract dated 5 October 2011.

[53] The Appellant said that he had intermittent problems with his back since around 1985 and had previously made six applications for workers' compensation for back injuries from around that time.

[54] During 2013, the Appellant had made two workers' compensation claims; in February and August 2013. He was absent from work in 2013 for five weeks because of lower back injuries.

[55] The Appellant has submitted that, in considering the question of mixed law and fact, the matters identified in paragraph [32] above (viz., WorkCover Queensland "Reasons for Decision", dated 1 October 2014[24] ), should be addressed.

[56] The Appellant submits that because of the absence of any finding about injury or any assessment of permanent impairment, puts this case into a different category to the starting point in the decisions of Ley[25], Sayers[26] and Parnell[27]. In those cases there had been the identification of a specific injury which was accepted in the course of the application for compensation. A comparison, in those cases, could then be made against the injury for which damages had were claimed. Otto[28] is also able to be distinguished on the basis that there was a positive finding that there was an injury - a degenerative condition which was not work related.

Identification of the nature of injury Re: Application for assessment of permanent impairment

[57] The following medical evidence will be considered:

The consultation notes of Dr Jiang on 26 August 2014, relating to the Appellant sustaining an injury at work whilst lifting a filing cabinet on *9 August 2014 and that the pain had become worse when he was cutting garden hedges at his home on 23 August 2014;

[*Note: While Dr Jiang reported 9 August 2014 as the date of injury attributable to lifting the filing cabinet, the employer's Incident Report Form[29] identified the date of that injury as 14 August 2014.]

The documentary evidence from the Townsville Hospital;

The documentary evidence from the Queensland Ambulance Service; and

The report and evidence of Dr Maguire (Orthopaedic Surgeon).

[58] Dr Jiang, in evidence, did not recall the Appellant making any reference to moving pianos during his consultation on 26 August 2014. His only recollection was of reference to a filing cabinet. Both the Appellant and Mrs Gay say that Dr Jiang was told that the issue related to the lifting of pianos. This claim was rejected by Dr Jiang. However, Mrs Gay said that when contacting WorkCover she believed that her husband had advised that the injury related only to the lifting of a filing cabinet.

[59] The documentary evidence from the Townsville Hospital on 23 August 2014 was:

Exacerbation of low back pain moving pianos x22! today.

[60] There was some debate between Counsel as to the correct interpretation of those notes as it related to the use of the word "today" and whether that related to the Appellant stating that he had moved 22 pianos on that day or whether the word "today" was at the commencement of the next comment i.e. "today. Pain low lumbar nil radiation. Able to mobilize". From observing the document, I find that the reference to "today" is contained within the sentence "Exacerbation of low back pain moving pianos x22! today. This is also the way the document is reproduced in Dr Maguire's Report.

[61] Further, on the discharge letter from the Townsville Hospital, the record of Dr Samson states:

...low back pain following moving heavy furniture at work today[31].

... has had multiple previous exacerbations of his low back pain and sees a Physiotherapist[32].

[63] Dr Maguire first saw the Appellant on 9 September 2016. The Regulator points out that Dr Maguire only saw the Appellant on one occasion some two and a-half years after the alleged injury and approximately one and a-half years before the hearing of this matter.

[64] Dr Maguire says that the history given to him by the Appellant was as follows:

Developed pain progressively throughout the period of 28 July 2014 to 10 August 2014. He states that he was then booked to see a medical Doctor. On the Saturday following the Festival of Music, he was lifting a filing cabinet when doing an office move and when tipping the filing cabinet, he developed severe pain in the lumbosacral region. Again, he reported the incident and when he was at home following the incident, he stated that he was cutting a small palm frond and the pain became more severe. The predominance of the pain was present at the time. He described the activity of cutting the frond as a very minimal activity. He developed severe pain in the lower back region with some pain to the buttock area, though no pain in the lower limbs. He was taken by Ambulance to the Townsville Hospital and later discharged[33].

[65] Dr Maguire's diagnosis of the Appellant was that he was suffering:

... degenerative disc disease (spinal spondylosis) with disc protrusion at L3/4 and L4/5 which is left sided at L3/4 and central at L4/5[34].

[66] The Appellant noted that there had been no challenge to that diagnosis. The Appellant's degree of impairment using the AMA Guidelines was that of an 8 per cent whole person impairment. There was also no challenge to that assessment.

[67] Dr Maguire confirmed that the Appellant had:

... a long and extensive history of multiple presentations. He has worked as a furniture removalist for most of his working life and has intermittent problems dating back as early as 1985. A significant amount of these presentations began increasing in 2013 and then in 2014. There have been multiple presentations in the 2014 injury period[35].

[68] Upon the issue of causation, Dr Maguire's report said:

It is my opinion your client's symptoms are consistent with the complaints he describes and the mechanisms of injury described. My Gay is very open about his past history and ongoing problems and how severe they became following the most recent exacerbation whilst at work[36].

[69] From this, Dr Maguire apportioned, initially 50 per cent of the Appellant's impairment to his pre-existing degeneration and 50 per cent to the lifting and moving of pianos. That apportionment was adjusted to 30 per cent attributable to his pre-exiting incapacity and 70 per cent to lifting and moving pianos.

[70] During Cross-Examination, Counsel for the Regulator asked the following question:

MS CALLAGHAN: Okay. So in relation to the events, the three events that occurred in - over a period of about three weeks - three to four weeks, in July/August 2014, with your experience in orthopaedic surgery, you're able to assess, on the balance of probabilities, that a certain impairment resulted from a combination of these events. Is that correct?

DR MAGUIRE: Yes. He - he developed a disc protrusion at some period between the two scans. He had an aggravating episode of injuries, lifting the heavy objects, and then he's had some further aggravation with the other episodes that have been mentioned. Eventually, he sought medical advice[37].

[71] The Regulator raised with Dr Maguire whether it was "artificial" to retrospectively separate the individual contribution of the three events of lifting and moving pianos, lifting the filing cabinet and the incident at home when he had been taken to the Townsville Hospital by Ambulance. Dr Maguire was asked this question by Counsel for the Regulator:

MS CALLAGHAN: Now, you would agree though that, then to divide that impairment up and trying to divide the impairment up between the three events which occurred in August 2014, is somewhat of an artificial exercise, wouldn't you?

DR MAGUIRE: It's very difficult to do, but you - you look for a major triggering factor, and then, based on laws of probability, the major triggering factor is usually the heaviest, or the - the most significant injury in your back. So in this particular case, the most likely thing that's caused his impairment, is a - him by lifting a heavy piano. It's a very common - common problem for removalists and piano removalists. And then he suffered further aggravation following this. So it's difficult to proportion [apportion]. But how you normally would do that is, you proportion [apportion] the majority of the impairment to the most significant undertaking, and then you may have a small reduction for any - any other aggravations. But the predominant thing, I understand, was that he was injured with the piano lifting[38].

[72] Further, when Dr Maguire was questioned by Counsel for the Regulator as follows:

MS CALLGAHN: And I put to you that that's based solely on Mr Gay's history, and on a somewhat artificial exercise of trying to divvy up how much impairment was caused by three events within a very short period of time, and for which there are no contemporaneous medical assessments. Would you agree with that?

DR MAGUIRE: So in this particular case he reported to me that he was pain free prior to the piano lifting, and therefore he developed pain following the piano lifting. And he had pain continually through that period, which was aggravated with the further two episodes. So therefore, the predominance of his symptoms occurred a result of the first impairment, of first injury, I beg your pardon. Not impairment[39].

[73] It was clear that Dr Maguire's evidence placed significance upon the pain experienced by the Appellant when lifting and moving pianos.

Mr Flynn's evidence concerning the lifting and moving of pianos during 2014

[74] Mr Jason Flynn (Regional Manager, North Queensland/Northern Territory, Kent Transport) commenced work with the employer in February 2014.

He recalled that around 12 pianos had been moved during the Townsville Chamber Music Festival in 2014.

He could not recall how many pianos were moved internally at that time. While he had a document showing that one piano had been moved internally, he was unable to "recall exactly" how many times the piano might have actually been moved.

The type of pianos moved included upright pianos, baby grand pianos, grand pianos and a concert grand piano.

A normal piano would weigh around 250 kilograms, a grand piano would weigh around 500 kilograms and the concert piano around 700 kilograms.

The movement of the pianos occurred during the period of 25 July 2014 and 11 August 2014.

At the time of recording the event of 14 August 2014, concerning the filing cabinet, Mr Flynn said he had no knowledge that the Appellant had a pre-existing injury.

Mr Flynn had noticed that the Appellant had been wearing a back brace for a period of around two weeks.

[76] In Cross-Examination, Mr Flynn accepted that each piano move was an "unusual move" and particularly in relation to the volume of pianos moved during the period of the Festival.

[77] When questioned to the exact number of pianos moved over that period, Mr Flynn accepted that the employer's records of piano moves did not accurately report the number of moves with regard to the pianos

[78] The Regulator submitted that for the following period of time under consideration in this matter (28 July 2014 and 10 August 2014), the type of work performed was as follows:

1 August 2014 - moving one piano and one interstate move

3 August 2014 - [Sunday] moving one grand piano from St James Cathedral to the V8 Supercar lane

4 August 2014 - interstate move out of metro Townsville

11 August 2014 - moving 12 pianos. This was the final move for of the Festival.

12 August 2014 - moving two containers of household furniture

18 August 2014 - load 13m (half a container) in Ayr. Pack up large house

19 August 2014 - deliver small job and load 1 x container

20 August 2014 - pick up and drop off empty cartons

23 August 2014 - office relocation for Ergon Energy[40].

[79] While the above work record of the Appellant was tendered in proceedings by the Regulator, it is accepted that the work records were not always accurate and events during the course of a day could alter and then not be reflected in the record. Also not mentioned were the actions upon which there was a movement of pianos in the "pit building". [Reference to the "pit building" means the pianos were moved internally.]

Further evidence around the period of time in contention

[80] On 14 August 2014, the Appellant had completed an Incident Report[41] where he referred to a back strain/strain, when lifting a three-drawer filing cabinet in the morning. This event was witnessed by Mr Tanner and reported to Mr Flynn.

[81] Mr Flynn said that the Appellant had not reported any pre-existing disability at the time of reporting lifting the filing cabinet on 14 August 2014. The Appellant went home on that day and said that he made an appointment with his Doctor and the earliest date available was later in August. With the exception of that day, the Appellant continued to work.

[82] Mr Flynn said he had been told by Danny Gatcliffe [a work colleague of the Appellant who did not give evidence in these proceedings], that the Appellant had hurt his back during the piano moves. The work records show that Mr Gatcliffe had worked with the Appellant during some of the days when the pianos were being moved and lifted. It was submitted that the fact that the Appellant had complained to another worker about his back was significant, as Mr Flynn's evidence was that the Appellant was not one to complain about anything.

[83] On 4 September 2014, Mr Flynn had sent an email to Ms Dena Kirk (National Return to Work Coordinator, Kent Transport) in respect of the application for workers' compensation including the comment that:

I have noticed that for the last two weeks Aaron has been wearing a back brace[42].

[84] Evidence from work colleagues at the time (Messrs Taylor and Bohlsen) was to the effect that the Appellant had appeared to be in pain when he had been lifting a piano and that his work capacity had diminished from that time on. Also there was evidence that the Appellant had appeared to be very stiff during the period of the Townsville Chamber Music Festival.

[85] Against those submissions, the Regulator stated that:

At the time of reporting the incident with the filing cabinet, Mr Tanner witnessed the incident and reported this to Mr Flynn.

The Incident Report Form[43] did not record any other disability of the person and at that point in time, Mr Flynn was unaware of any pre-existing disability relating to the Appellant.

It was also noted at the time of this incident, that the action taken by the Appellant was that he was going to see a Doctor.

The Appellant saw Dr Jiang later 26 August 2014.

The Queensland Ambulance Service case notes relating to the Appellant on 23 August 2014 records:

... sudden onset back pain to the lumbar region, sharp in nature,... Pt states that he has HX [history] of chronic back pain due to bulging discs - confirmed by xray[44].

The triage records of the Townsville Hospital note:

Acute on chronic lumbar back pain, onset whilst bending over @ 1400. HX [history] chronic back pain...[45]

The progress notes taken on 23 August 2014 by Dr Samson of the Townsville Hospital read:

Exacerbation of low back pain moving pianos x22! today.

[86] The visit to the Townsville Hospital occurred on 23 August 2017. The Appellant's application for workers' compensation was made on 27 August 2014, where there is no mention of pain caused by lifting or moving pianos. The injury identified in that application related to an injury to his "Lower back, trauma to muscles/tendon not classified"[47] which occurred on 9 August 2014.

[87] Dr Jiang's notes from the Appellant's consultation with him on 26 August 2014 related to the Appellant sustaining an injury at work whilst lifting a filing cabinet on 9 August 2014 and that the pain had become worse when he was cutting garden hedges at his home on 23 August 2014.

[88] In the Appellant's conversation with WorkCover on 3 September 2014, the Appellant advised that:

He had sustained "lumbar back pain with right leg pain", when "picking up a small three drawer filing cabinet" on 9 August 2014 at around 8.00 am, having commenced work at 6.00 am.

That incident was witnessed by Mr Tanner and reported to Mr Flynn.

The Appellant thought he would be alright as he had suffered from back pain before, having been a removalist for 30 years.

The Appellant was at home on 23 August 2014 and after taking a step down, had jarred his back and was taken to hospital by ambulance[48].

[89] Mr Flynn saw the Appellant nearly every day at work and at no time had he recalled the Appellant complaining of a sore back. There was no documentary history of the Appellant complaining of back pain to the employer while lifting pianos. The first report of back pain occurred on 14 August 2014 and this related only to the lifting of the filing cabinet.

[90] The Appellant also did not advise Dr Maguire that after his visit to the Townsville Hospital on 23 August 2014, he had seen Dr Jiang on 26 August 2014, where it was recorded that the injury occurred by lifting a filing cabinet on 14 August 2014, but after noticing symptoms first on 9 August 2014.

[91] There was no evidence that the Appellant was actually working on 9 August 2014. However, it has been established that the work documents from the employer were not necessarily accurate (at [78] above). Over the 14 days between 28 July and 10 August 2014, the Appellant had three days off and was out of town for two other days. As the Festival ran from 1 to 9 August 2014, the Regulator said it could be inferred that there would have been no need for internal moving of pianos prior to the commencement of the Festival.

[92] The Appellant was vague as to when he commenced wearing a back brace, although Mrs Gay said it related to the period of the Festival. Significantly, the Appellant had given no evidence to his employer or to Dr Jiang concerning any acute event during the Festival that caused a back injury. There had been no nomination of a date, job or location at which his symptoms commenced.

[93] What could be recalled by the Appellant was his acute injury which occurred on 14 August 2014, with the filing cabinet.

[94] Mr Taylor (a work colleague) had recalled in evidence that the Appellant had pulled away; did less than what he would normally do; and was "hunching over" and "pulling over to rest" during the Festival[49].

[95] Mrs Gay's evidence (i.e. that Appellant was suffering from extreme back pain during the Festival; using anti-inflammatory cream constantly and using heat packs twice or three times daily) as it related to the degree of pain incurred by the Appellant, was not significantly replicated by the Appellant at his workplace. (See also Mr Bohlsen's evidence at [105] below.)

[96] Mrs Gay said that at the consultation with Dr Jiang he had been advised that the pain incurred by her husband was attributable to moving and lifting pianos, together with the complaint concerning the filing cabinet. However, Mrs Gay said she was aware that the Appellant had advised WorkCover that the injury was caused by the lifting of a filing cabinet.

[97] Concerning Mr Flynn's reference to information provided by Mr Gatcliffe, the Regulator submitted that this was hearsay and provided no clarification about when the Appellant had allegedly advised Mr Gatcliffe of his back injury. I find that assertion to be correct.

[98] The Regulator's submissions concerning Dr Maguire's Report generally were addressed hereunder.

[99] The Regulator submitted that the value of any expert report is dependent upon the reliability of the facts upon which it is based (see Makita (Aust) Pty Ltd v Sprowles[50]).

[100] Dr Maguire was reliant upon the information provided to him by the Appellant's solicitors and also upon the information provided to him by the Appellant. Dr Maguire assessed the Appellant on one occasion in September 2016, some two and a-half years after the incidents to which the Appellant has referred

[101] Primarily, the Regulator claims that Dr Maguire was engaging in an exercise of artificiality (see Otto v Mackay Sugar Ltd & Anor[51] and Andersen v Aged Care Employers Self Insurance[52]), attempting to separate out two to three "injuries" or exacerbations which are said to have occurred as a consequence of three different events within a few weeks, almost two and a-half years previously.

[102] While Dr Maguire noted the "resources available" from the Townsville Hospital and general practitioner's reports, the letter of instruction from the Appellant's solicitors referred only to the piano lifting over the period between 28 July and 10 August 2014. In Dr Maguire's report he had not referred to any review of those contemporaneous records or referred to the contents of those records in his Report.

[103] The Regulator states that the inconsistencies in the Appellant's evidence and the reporting of his history to Dr Maguire (whose opinion is relied upon by the Appellant) are of concern in this matter.

[104] The evidence of the Appellant and that of his work colleagues during the period identified by him is not sufficiently reliable evidence other than for saying that the Appellant appeared to suffer from some stiffness and soreness in his lower back around the period of time when moving and lifting pianos.

[105] Mr Bohlsen's evidence was that while he had noticed that the Appellant appeared to be stiff during the lifting and moving of pianos, he stated that:

... The first couple of weeks we were all fine. It wasn't till we had to do it after a couple of weeks every day, day in and day out...[53]

... Yeah, your body gets a lot stiffer after doing it for a couple of days... The observations he made of the Appellant at that time was that he appeared to be a bit sore. That was it. I think we were all sore that day...[54]

[106] Mrs Gay, who was suffering from a health condition at the time of the Festival, struggled with dates and times concerning the specifics of the Appellant's physical concerns around that time. However, she did recall the period of time when the Festival was held in 2014 and the requirement of the Appellant to be involved in the moving and lifting of pianos. Mrs Gay administered anti-inflammatory cream to his back during that period and said that he had been wearing a back brace at that time. This was observed by some work colleagues, but there was no reporting of any back pain to his employer during this period or any medical consultation.

[107] Mrs Gay also recalled that the Appellant had clearly identified his injury of 14 August 2014 in his report to WorkCover Queensland as being attributable to the lifting of a filing cabinet and not to the lifting and moving of pianos.

Regulator's submissions concerning inconsistencies in evidence

At a glance

Court

Decision date

Before

Source

Judgment (241 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (1)