Gay v Workers' Compensation Regulator [2024] QIRC 141

• [65] I do not accept that this is a proper construction of s 132A of the WCR Act.

• [66] The plain and ordinary meaning of the words in the pre-amended s 132A do not import a requirement on the Regulator to determine if Mr Gay is a 'worker' or has an 'injury' before an application is referred to an assessment. Following receipt of a s 132A application, the insurer is obliged to:

(a) be satisfied that the applicant had not made an application under s 132; and

(b) be satisfied the application was in the approved form, together with the documents prescribed in the Regulation that support the application,

• [67] Upon satisfaction of the matters in sub-paragraphs (a) and (b) above, the insurer is then required to refer the applicant for assessment pursuant to s 179.

• [68] This construction is consistent with the purpose of the provision within the context of the WCR Act. Relevantly, the process following the referral of a s 179 assessment includes determining if a worker has a permanent impairment and, if so, to what degree. Following that assessment, the insurer will determine if the applicant is entitled to lump sum compensation[23] which would include consideration of, inter alia, whether there was an 'injury'.

• [69] There is no basis for reading additional words into the pre-amended s 132A requiring the insurer to determine whether the applicant is a 'worker' or has an 'injury' within the meaning of s 32 of the WCR Act as a 'threshold issue' before the application is referred to an assessment for DPI.

• [70] Indeed an inference might be drawn from the inclusion of ss 132A(6) and (7) of the Amended Act that prior to the amendment, the issuer was not able to reject an application if, inter alia, the worker had not sustained an 'injury'. In any event, it is unnecessary for that inference to be drawn as an aid to the construction of s 132A in force at the relevant time.

• [71] Accordingly, at the relevant time there was no requirement for consideration of whether an applicant suffered an injury within the meaning of the WCR Act prior to the s 132A application being referred for assessment of DPI.

• [72] The consequence of this construction of s 132A as in force at the relevant time, is that it is unnecessary to consider the evidence relied on as to whether Mr Gay suffered an injury within the meaning of s 32 of the WCR Act within this appeal.

• [73] In order to determine whether a s 132 application for compensation has been made, for the purpose of determining whether s 132A applies, regard must be had to the injury that the application for compensation relates to.

• [74] The parties differ in terms of how such an assessment occurs.

• [75] Relevantly, Mr Gay contends regard should be had to the event causing the injury.

• [76] The relevance of this submission to this appeal is that Mr Gay submits that his injury was caused by lifting pianos during the period 28 July to 10 August 2014, rather than being caused by lifting the filing cabinet on 14 August 2014.

• [77] The Respondent takes a different approach and referred to an equivalent provision to s 132A in the previous Act being s 253 of the WorkCover Queensland Act 1996, and the case law considering that provision in its submissions as follows:[24]

1. Section 132A is an equivalent provision to section 253 of WorkCover Queensland Act 1996 (the previous Act), which provided:

"General limitation on persons entitled to seek damages

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

(c) the worker, if the worker has not lodged an application for compensation for the injury

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

1. Similar disputes about the identification of the injury for which an application for compensation has been made, where they were or may have been different events nominated in the application for compensation and notice of claim for damages have been determined in the Supreme Court of Queensland, both Court of Appeal and Trial division, as well as in the District Court, and are instructive in this appeal.
2. In Dowd v Swift Australia P/L [2008] QCA 228, the Court of Appeal dismissed an employer's application for leave to appeal against the decision of the District Court to dismiss an application to strike out some paragraphs of the employee's statement of claim. The basis for the application was that those paragraphs contained allegations that the employee may have injured his back in two alternative events - over a period of time between September 1999 and 13 April 2002 or alternatively, whilst performing light duties on 15 May 2002 - both in the alternative to the date of injury initially nominated in the notice of assessment and claim for compensation as 13 April 2002.

3. Dutney J, with whom Keane JA and Mackenzie AJA agreed stated:

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

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

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

1. The Court of Appeal agreed with the District Court judge that the injury for which the assessment for permanent impairment was being sought was the injury for which an application for compensation and notice of assessment had been given, despite the possibility of three contributing events rather than the one originally nominated (my underlining).

1. In Andersen v Aged Care Employers Self Insurance [2011] QSC 101, the applicant sought a declaration that her L5/S1 prolapsed disc had already been assessed. She had made a claim for compensation for a L5/SI prolapsed disc arising out of events at work on 22 or 23 August 2007 and had received a notice of assessment in relation to the injury. The notice of assessment referred to the injury on 23 August 2007. Mrs Anderson then gave a notice of claim for two injuries - one on 20 or 21 August and one on 23 August 2007. Her self-insurer employer stated that to claim for the first injury, it had to be assessed.

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

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

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

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

1. Dalton J referred to the "artificiality of the exercise" of an orthopaedic surgeon attempting three years later, to separate the cause of one injury to the lower back into two "'injuries" because of two events occurring on subsequent days.

1. In Otto v Mackay Sugar Ltd and Anor [2011] QSC 215, Douglas J considered whether the applicant worker was entitled to seek common law damages for a personal injury to his lower back which occurred over a period of time from September 2003 to October 2009. He was unable to seek those damages if he had previously lodged an application for compensation.

1. The plaintiff had made an unsuccessful application for compensation for a low back injury which occurred on 13 February 2009 but it was also recorded on the forms that there was no specific injury time or date. Douglas J acknowledged there were various mistakes in the forms and the applicant had completed grade 10 but relied upon his employer to complete any paperwork they needed.

1. In the Notice of Claim for damages, the applicant described the low back pain coming on between February 2009 and 25 September 2009 at which time he was unable to continue work due to excruciating pain.

1. The appellant's evidence was that his pain commenced in about February 2009, then settled during a slack period but then was "niggling" from about June 2009 until he woke with excruciating pain on 25 September 2009 and was unable to continue work.

1. Douglas J concluded that when "one examines the available evidence, it is artificial in my mind, to treat the workers' compensation application as referring to an event that actually happened on 13 February 2009", and made a declaration that it was the same injury that was the subject of the application for compensation and the notice of claim for damages.

1. In Ley v Woolworths [2013] QSC 59, North J referred to earlier cases, including those discussed above. In particular, he referred to the "date of incident" on the application for compensation form as the date on which the applicant became aware of a potential injury (by the onset of symptoms) and was unlikely to have had medical opinion about the causation of the condition.

"whilst different 'events ' within the meaning of that term found in s31 of the WCRA have been expressly or by implication identified when the application for compensation is compared with the notice of claim for damages, I take the view that the same "injury" within the meaning of that term used in s 32 of the WCRA is the subject of both the application and notice of claim".

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

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

The respective Applications made pursuant to ss 132 and 132A

• [79] Mr Gay contends that a different event to that described in the s 132 application caused the injury relevant to the s 132A application. Relevantly, Mr Gay's s 132 application for compensation dated 27 August 2014 referred to:[25]

(a) the nature and location of the injuries as being, "lower back, trauma to muscles/tendon not classified";

(b) the date of injury as being 9 August 2014 (all parties agree the correct date is 14 August 2014); and

(c) the injury having occurred when lifting filing cabinets.

• [80] This information was confirmed and expanded on in a conversation with a WorkCover representative on 3 September 2014.[26] The notes from that conversation record the following:

Are you wishing to proceed with your WorkCover Claim? YES

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

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

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

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

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

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

What are the symptoms you are currently experiencing?

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

Have you ever experienced these symptoms prior to DOI?

• [81] On 1 October 2014, WorkCover rejected Mr Gay's s 132 application for compensation.

• [82] Mr Gay signed the s 132A application on 31 March 2016 and it was submitted by his legal representatives to WorkCover on 10 October 2016.

• [83] The s 132A application[27] included the following information:

(a) that the event resulting in the injury occurred over a period of time commencing on 28 July 2014 and ending on 10 August 2014;

(b) that symptoms first began on 9 August 2014;

(c) that Mr Gay first consulted a medical practitioner on 23 August 2014 when he attended the Townsville Hospital;

(d) that the injury said to have been sustained was located in Mr Gay's lumbar spine and the nature of the injury was a soft tissue injury; and

(e) that the specific incident was not reported to his employer.

• [84] Mr Gay provided the following description of the event causing the injury in the s 132A application as follows:

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

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

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

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

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

• [86] Mr Gay commenced employment with Kent Transport Industries Pty Ltd on 5 October 2011. Whilst Mr Gay's contract of employment[28] states that Mr Gay's position is that of a casual driver,[29] it seems agreed between the parties that Mr Gay performed duties as a Furniture Removalist as well as driving the removal truck.[30]

• [87] Indeed, the evidence is that, except for a brief period working as a truck driver, Mr Gay worked predominantly as a furniture removalist for 30 years.[31]

• [88] The Q-Comp Worker Claim History attached to Mr Gay's s 132A application indicates that, prior to 2014, Mr Gay had made five WorkCover claims with respect to injuries to his lower back variously described as "muscle/tendon strain", "soft tissue injuries", or "sprains and strains of joints" to his back. Two of these claims were lost time claims in 2013.

• [89] This history is relevant as Mr Gay gave evidence about being required to be "at full capacity" to carry the pianos,[32] and also previously that he managed his sore back by taking rest days and utilising annual leave, following which his back "would come good."[33]

• [90] Mr Gay further gave evidence that following the WorkCover claims in 2013, and prior to the music festival in 2014, that it was not unusual for him to get a twinge or niggle in his back when both at work and at home. Mr Gay said when that occurred, to manage the symptoms he would take, "some drugs and probably laydown."[34] Mr Gay said he treated his back pain with Aspro mixed with Brufen for pain relief.[35]

• [91] Relevant to the appeal, Mr Gay and his colleagues loaded and unloaded and then reloaded pianos for a music festival in and around Townsville between 25 July 2014 and 11 August 2014, although the period claimed by Mr Gay in the s 132 Application was 28 July 2014 to 10 August 2014.[36]

• [92] Tendered into evidence was a table showing the movement of the pianos during the course of the festival, as well as the individual job dockets for each of the jobs.[37]

• [93] The evidence confirms that the last day of the music festival was 11 August 2014 and that Mr Gay worked that day.

• [94] Mr Gay did not work exclusively at the music festival throughout the period 25 July to 11 August 2014. The evidence was that he continued to perform a variety of work, with his team, during this period including, for example:

(a) driving a return trip from Townsville to Bowen in order to lift and pack 4000kg of household goods on 4 August 2014;[38]

(b) lifting and packing 2000kg of household goods on 4 August 2014;

(c) lifting and packing 3000kg of household goods on 7 August 2014;

(d) lifting and packing 3000kg of household goods on 8 August 2014; and

(e) lifting a granite bench-top and walking it up two storeys on 12 August 2014.

• [95] During the course of his evidence, Mr Gay gave evidence[39] of experiencing physical difficulty at St James' Cathedral on 1 August 2014 as follows:

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

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

• [96] However, inconsistent with this evidence was evidence that later on in that same day, and on the following day, being 1 and 2 August respectively, Mr Gay also performed a furniture lift at Ergon Energy. Mr Gay also worked on 3 August 2014 including being involved in moving a piano. Indeed, Mr Gay continued to work both at the music festival and at other sites during the relevant period.

• [97] Further, and as noted above, Mr Gay performed the job in Bowen on 4 August 2014, which included driving to and from Bowen as well as packing and removing 2000kg of household goods.

• [98] Similarly, it was noted above that Mr Gay worked on 7 and 8 August 2014.

• [99] This evidence indicates that Mr Gay did not lose any work hours and that he continued to perform his duties as both a driver and furniture removalist, immediately following the event he describes on 1 August 2014.

• [100] It was contended by the Regulator that Mr Gay had not previously given evidence of an incident at the Cathedral on 1 August 2014, and that it was a recent invention. I also note that the evidence of Mr Gay's team members did not refer to an incident early in the music festival at the Cathedral. I consider that Mr Gay's evidence regarding the physical difficulties he experienced on 1 August to be confused or conflated with his later evidence regarding his difficulties at the Cathedral on 11 August 2014.

• [101] It appears that Mr Gay did not work on Saturday, 9 and Sunday, 10 August but he continued to work the following days. There was no contention put that Mr Gay was unable to physically work on those days.

• [102] Relevantly, 11 August 2014 was the last day of the music festival and Mr Gay worked that day. Mr Gay gave evidence[40] of suffering physically as follows:

1. What do you remember of the nature of that difficulty?---I was just bent over and couldn't straighten up and, yeah, it was just - I just couldn't walk. I drove a vehicle in there, they took control. Michael Daniels was there. He had left a vehicle at the airport which we had to go and get a piano trolley with a - they call it a semi. We had to go there to pick that up. I just stayed at the - at the church. He went and got
2. that. I had no more participation after that. I think that was the last piano that we done, I think. So I definitely remember it was up there at that church at Cleveland Terrace.

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

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

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

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

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

...If I'd go home and rest, two days, three days, my back

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

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

• [104] Relevantly, Mr Gay attended work and performed duties on 12 August 2014. Mr Gay states that he remembers being at home on 13 August 2014 and lying on the floor to relieve his back. Mr Gay attended work on 14 August 2014. This day will be considered further below.

• [105] The Commission heard evidence from three of the team Mr Gay worked with including Mr Bolhsen, Mr Taylor and Mr Gatcliffe.[42]

• [106] Each of the witnesses gave general evidence that they worked with Mr Gay during the relevant period including during the music festival. They were taken through the work dockets and whilst they confirmed that they performed work loading, unloading and re-assembling pianos, they did not seem to have an independent recollection of the individual jobs. [43] This is perhaps not remarkable given the passage of time between the events and when they each gave their evidence. Mr Gatcliffe also gave evidence that because they had done the music festival in previous years, he was not able to really distinguish that year from other years.

• [107] Mr Bolhsen gave evidence[44] that he recalled Mr Gay walking around "stiff and sore" "after he moved an Ergon job on the Saturday and then had to move a piano after that, and then on the Sunday morning where he turned to pick the piano up."[45]

• [108] Mr Bolhsen indicated that when he saw Mr Gay bent over, he would tell him to do the easier jobs. To Mr Bolhsen's recollection, Mr Gay worked every day during the relevant period.[46]

• [109] When asked about whether he could recall Mr Gay injuring himself lifting a filing cabinet, Mr Bolhen's evidence was, "not off the top of my head at the moment, no."[47]

• [110] Mr Taylor also gave evidence of the event relied on by Mr Gay as follows:[48]

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

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

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

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

• [111] Mr Taylor's evidence was that after this event he was partnered with someone else and hardly ever saw Mr Gay as a result. However, the evidence contained in the work docket suggests that Mr Taylor continued to work with Mr Gay throughout August 2014.

• [112] Mr Gatcliffe also gave evidence about the event at the Cathedral as follows:[49]

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

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

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

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

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

• [113] Mr Gatcliffe was not sure if an incident report was filled out about the event but claims he may have told management that Mr Gay hurt his back when they returned to the office. However, when cross-examined further about this, Mr Gatcliffe was unable to recall what was said during any discussions with management if it did occur.[50] The steps taken and the alleged reporting of this incident can be distinguished from Mr Gatcliffe's and others' conduct following the incident on 14 August 2014.

• [114] An incident report records an event occurring at 8am on 14 August 2014 which is considered further below.

• [115] Mr Gay was rostered to work on 14 August 2014. Mr Gay gave evidence that he recalled suffering a back strain when lifting a filing cabinet at work that day. His evidence was as follows:[51]

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

45 done the incident report.

• [116] As 14 August 2014 was a Saturday, Mr Flynn, Mr Gay's manager, was not working and came into the office after being told of the incident by Mr Gatcliffe, in order to assist Mr Gay to complete the incident report.

• [117] Mr Gay was asked how he got through the remainder of the day following the incident on 14 August 2014. His response was as follows:[52]

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

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

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

• [118] The immediate step taken by Mr Gatcliffe to notify Mr Flynn who then came into work on Saturday 14 August 2014 in order to complete the incident report can be constrained to the alleged conduct of Mr Gatcliffe and Mr Flynn's alleged response to being advised that Mr Gay also injured his back on 11 August 2014.

• [119] Mr Gay was asked how his back was at the commencement of the music festival. He responded that, "it was all right, from what I can recall."[53]

• [120] However, Mr Gay's evidence was that by the end of the festival his back had deteriorated. His evidence was as follows:[54]

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

• [121] The evidence was that following the incident on 14 August 2014, Mr Gay was advised by his employer to take several days off work. He then returned to work. Relevantly, he was scheduled to work on 23 August 2014.

• [122] On 23 August 2014, Mr Gay was rostered to work which involved an office relocation. It was a Saturday and Mr Gay recalled commencing work early and working until approximately 2pm.

• [123] Mr Gay's evidence was that the office relocation required approximately four or five workers, including himself, to carry Dell computers up a stairwell. His evidence was that is something they would not ordinarily do as such computers are often located somewhere like a basement. Mr Gay gave the following evidence:[55]

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

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

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

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

• [125] The Townsville Hospital triage notes[56] record that Mr Gay presented as follows:

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

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

Exacerbation of low back pain moving pianos x22! Today

• [127] From the evidence, Mr Gay did not move 22 pianos that day or any other dat. Relevantly, the last day of the music festival was some 12 days earlier.

• [128] Mr Gay was discharged from Townsville Hospital later on 23 August 2014. The discharge letter[58] authored by Dr Samson relevantly states:

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

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

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

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

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

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

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

• [130] Dr Jiang makes no record of Mr Gay advising him of having earlier injured himself when working during the music festival.

• [131] Dr Jiang also completed a worker's compensation medical certificate on 26 August 2014. That certificate records that Mr Gay suffered a lumbar back strain after lifting a filing cabinet on 9 August 2014.

• [132] On 27 August 2014, following the consultation with Dr Jiang, Mr Gay made the s 132 application for an injury to his "low back, trauma to muscles/tendon not classified which occurred on 9 August 2014" (as already noted, the agreed date is 14 August 2014).

• [133] Mr Gay's s 132 application for compensation was rejected by WorkCover on 1 October 2014.

• [134] On 31 March 2016, Mr Gay signed the s 132A application which was sent to WorkCover on 10 October 2016. In that application, Mr Gay nominated that the cause of his injury was lifting pianos at the music festival.

• [135] It is relevant to note that prior to Mr Gay's attendance at the Townsville Hospital, he had not sought any medical attention between 28 July 2014 and 23 August 2014.

• [136] Mr Gay relied on two medical reports[59] of Dr Maguire, Orthopaedic Surgeon, who examined Mr Gay on 9 September 2016. No further evidence in chief was adduced from Dr Maguire and he was not cross-examined by the Regulator. Each of Dr Maguire's reports were tendered into evidence.

• [137] The letter of instruction[60] from Mr Gay's solicitors to Dr Maguire was also tendered into evidence. The background that was provided to Dr Maguire was as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

No permanent impairment and fit to return to normal duties.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kent Removals terminate employment effective 10 March 2015

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

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

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

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

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

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

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

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

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

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

• [140] Dr Maguire diagnosed Mr Gay as sustaining a degenerative disc disease (spinal spondylosis) with disc profusion at L3/4 and L4/5 which is left sided at L3/4 and central L4/5.

• [141] Dr Maguire expressed an opinion that Mr Gay's symptoms were consistent with the complaint in the following terms:

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

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

• [142] It can be seen from the history taken by Dr Maguire that Mr Gay did refer to the filing cabinet event on 14 August 2014. Although the significance of that event as being one relied on in support of the s 132 application is not apparent from the history.

• [143] There is no attempt by Dr Maguire to express a view as to whether one particular event referred to by Mr Gay in the history he provided, caused the injury.

• [144] Relevantly, Dr Maguire considered the complete history provided by Mr Gay which included the history of moving the piano at the music festival, the filing cabinet incident and the presentation at the hospital after experiencing severe pain at home.

• [145] Dr Maguire refers to the "2014 injury period" when expressing his opinion. [62] I consider this period included the period of the music festival, the filing cabinet incident and the attendance at hospital on 23 August 2014 after experiencing pain at home. As Dr Maguire notes "[t]here have been multiple presentations since the "2014 injury period"." The opinion expressed by Dr Maguire takes Mr Gay's history into account and deals with the complicated history of the deterioration in the lumbar region of Mr Gay's back as a result of working as a furniture removalist for over thirty years. Relevantly, Dr Maguire records the history which includes events spanning from 28 July to 23 August 2014 and appears to deal with them together by referring to the "2014 injury period".

• [146] When expressing his opinion Dr Maguire refers to Mr Gay's symptoms as, "following the most recent exacerbation whilst at work." In the history taken, the most recent work exacerbation occurred on 14 August 2014, however, given his adoption of the phrase "2014 injury period", I consider it is open to conclude that Dr Maguire was referring to the period of 28 July 2014 to 23 August 2014.

• [147] I consider this to be consistent with the evidence of Mr Gay and his colleagues that he had ongoing back issues prior to July 2014, which would make him stiff and sore. It is also consistent with there being an incident on 11 August during which Mr Gay's back became sore and he rested on the job for a period before recommencing work on that day. Whilst this incident was recalled by Mr Gay's colleagues, they did not take any steps to formalise notification of the incident. Relevantly, I find they did not take Mr Gay back to the office and I further find that no incident report was completed following that incident.

• [148] After returning to work on 11 and 12 August, Mr Gay had a day off on 13 August 2014. On his return to work on 14 August 2014, the incident with the filing cabinet occurred. I consider that incident to have been more serious as Mr Gay did not keep working that day. Following the incident, Mr Gatcliffe drove Mr Gay back to the office and Mr Flynn came into work to complete the incident report for Mr Gay.

• [149] Mr Gay did not work for several more days but did return on 18 August 2014 and worked intermittently until 23 August 2014.

• [150] After working in the morning of 23 August 2014, an event occurred at Mr Gay's home causing significant pain to his back and he was taken to the hospital by ambulance.

• [151] I consider, using the words of Dr Maguire, that this history of events during the period 28 July 2014 to 23 August 2014 to be the the relevant "2014 injury period".

• [152] Dr Maguire does not specifically nominate any one of these events a being causative of the injury.

• [153] The closest Dr Maguire's report comes to nominating a cause of injury is when he expresses a view that Mr Gay was open about his past history and ongoing problems and how severe they became "following the most recent exacerbation while at work." From the history given by Mr Gay, the most recent exacerbation while at work occurred on 14 August 2014. Ultimately, I do not consider that Dr Maguire's report supports a conclusion that moving and lifting the pianos at the music festival between 28 July 2014 and 10 August 2014 was the causative event of the injury, so as to be a different injury than that claimed in the s 132 application for compensation.

• [154] It is evidenced from the above that Dr Maguire assessed one injury. There is no suggestion on the medical evidence that Mr Gay suffered separate injuries from each of the three separate events[63] encompassing the "2014 injury period."

• [155] To adopt the language of her honour Dalton J in Anderson, there is an artificiality of the exercise to attempt to separate the cause of one injury to the lower back into separate injuries based on separate events occurring within a period of time. I note relevantly, in this appeal Mr Gay only attempts to separate the two events of the music festival and the filing cabinet incident, presumably due to his assertion that they occurred whilst he was working.

• [156] I am satisfied that this view of the medical evidence is consistent with the Appellant's evidence. Mr Gay had a long history of back pain he says arising out of his employment as a furniture removalist. He had previously lodged, inter alia, claims relating to his lower back in 2013. He had time out off work because of this. He said he continued to experience pain and stiffness. He managed this by taking pain relief and utilising leave and taking time off to rest his back. Mr Gay's evidence was that his back deteriorated during the period of the music festival. It is relevant that during that period Mr Gay did not exclusively work at the music festival but continued to perform other jobs as a furniture removalist. On the final day of the music festival, the evidence was that Mr Gay felt pain whilst at work and rested for some time on the job but then resumed his duties that day, lifting lighter weights. Mr Gay worked the following day but says he stayed at home on 13 August 2014 in order to lie on the ground and rest his back. The following day Mr Gay attended work and experienced pain whilst lifting a filing cabinet. The response of Mr Gay and others implies that this incident was treated more seriously by him and his work colleagues as he was driven back to the office, an incident report was completed and he was told to stay at home and rest his back. On 18 August 2014, Mr Gay returned to work and worked intermittently until 23 August 2014. As noted already, Mr Gay experienced sharp pain at home and was taken to hospital by ambulance on 23 August 2014.

• [157] In the context of this history and the medical evidence, I consider that Mr Gay suffered one injury, as diagnosed by Dr Maguire, which he sustained during the 2014 injury period.

• [158] It follows that, I consider that the injury referred to in the s 132A application is for the same injury as the s 132 application for compensation. Consequently, s 132A(1) of the WCR Act is invoked and Mr Gay is not entitled to apply for assessment of DPI pursuant to s 132A of the WCR Act.

• [159] For the reasons set out above, I make the following order:

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

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

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

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

[4] the s 132 application.

[5] the s 132A application.

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

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

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

[9] [2021] QIRC 251.

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

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

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

[14] R v A2; R v Magennis; R v Vaziri [2019] HCA 35; (2019) 269 CLR 507, [32].

[15] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355, [78]; Lake City Freighters Pty Ltd v Goram & Gotch Limited [1985] HCA 48; 157 CLR 309, 436, 461.

[16] [2019] HCA 35; (2019) 269 CLR 507.

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

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

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

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

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

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

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

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