[Extract from Queensland Government Industrial Gazette, dated 19 January, 2007, Vol. 184, No. 3, pages 31-36]

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Workers' Compensation and Rehabilitation Act 2003 - s. 550 - Appeal

Kresimir Mimica AND Q-Comp (WC/2006/32)

COMMISSIONER BLADES 9 January 2007

Workers' Compensation Appeal - Injury - Over-period-of-time injury - Medical evidence - Decision of Q-Comp set aside. DECISION

WorkCover rejected a claim by the Appellant Kresimir Mimica on 7 March 2006 pursuant to the Workers' Compensation and Rehabilitation Act 2003 (the Act). That decision was reviewed by Q-Comp (the respondent) and by decision dated 24 April 2006, the decision of WorkCover was confirmed. The basis of the rejection was that with respect to the unassessed injuries contained in a Notice of Claim for Damages dated 1 November 2005, Mr Mimica had not sustained an injury within the meaning of the Act.

Section 32 of the Act defines “injury”. So far as is relevant in this appeal, the Act provides:

“32 Meaning of injury (1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury. (2) … (3) Injury includes the following - (a) ...; (b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation - (i) a personal injury; (ii) a disease; (iii) a medical condition if the condition becomes a personal injury or disease because of the aggravation; (c) ...”.

On 13 December 2004, the Appellant lodged an Application for Compensation dated 7 December 2004 for an injury sustained on 29 November, which he described as an injury to his middle back, upper neck. This was later described as a cervical spine injury or neck injury. He stated that he sustained the injury on 29 November as a result of lifting up a sledge hammer. He stated in that application that he had not previously suffered any similar injuries. He stated that the injury happened on 29 November and to the question “Did your injury happen over a period of time?” he answered “No”.

On 7 April 2005, a Notice of Assessment was issued under s. 185 of the Act where a 5% permanent impairment was assessed for “moderate to severe aggravation or acceleration of pre-existing degenerative disease in cervical spine with subjective, but no significant clinical findings other than degerative (sic) changes on Xray.”.

Mr Mimica then brought a claim for damages for personal injuries under the common law provisions of the Act. It was in the process of that claim that the Appellant was examined by a Dr Gillett on 12 May 2005.

As a result, on 9 November 2005, the Appellant lodged a Notice of Claim for Damages under s. 275 of the Act, dated 1 November, with WorkCover Queensland, giving details of the event resulting in injury as a period-of-time injury, dating from 26.3.04 to 28.11.04 with symptoms commencing approximately 26 May 2004 and comprising soreness and strain to neck. He stated that this injury was because he was required to use grinders which included a pencil grinder, angle grinder, barrel grinder and big gun grinder and was also required to tentatively lift and strike sledgehammers of between 7 pounds to 28 pounds onto slag rises on poured jobs. He stated that the sledgehammer work aggravated the neck condition and added to the cervical spine injury suffered by him. It was Dr Gillett’s opinion that the work practices over a period of time contributed 1% to the permanent impairment.

It was in relation to that Notice of Claim for Damages, that WorkCover rejected the unassessed over-period-of-time injury to the neck on the basis that the Appellant did not sustain an injury within the meaning of the Act. 2

That decision of 7 March 2006 was reviewed by Q-Comp and confirmed by decision dated 24 April 2006. The Appellant now appeals to this Commission.

The onus of proof in this appeal is on the Appellant to prove, on the balance of probabilities, that his condition falls within the definition of injury contained in s. 32, in other words that he suffered an injury. This is a hearing de novo. It is the unassessed, over-period-of-time injury which is in question. It is conceded that he was a worker as defined in the Act.

The injury accepted by WorkCover and sustained on 29 November 2004 was one where he suffered severe pain in the neck area as he attempted to lift a 30 pound sledge hammer he had been using. There was some metal hanging off a mould after a hot metal pour and it was his job to knock it off with the hammer. He described it as “scary pain” where he lost mobility in his arms and legs and dropped to his knees. There is nothing controversial about that injury.

In rejecting the Application to Review the WorkCover decision, Q-Comp considered that there was no evidence to suggest that Mr Mimica had sustained an over-period-of-time injury. From the evidence, at no stage did Mr Mimica relate any complaint to his employer or treating General Practitioner. The comments of Dr De Barros and Dr Brazel were preferred because they examined Mr Mimica at a date closer to when the alleged injury was said to have been sustained. On the material before Q-Comp, the decision was understandable.

Evidence in this appeal was given by Mr Mimica and Dr Gillett for the Appellant. Dr De Barros, for the respondent, was not called but his statement was admitted in evidence and was not challenged. Dr Brazel also gave evidence for the respondent.

The report of Dr De Barros revealed that the Appellant had seen him on a number of occasions since he commenced employment with Bradken Resources Pty Ltd on 26 March 2004. These occasions included an injury to his knee, sore eyes, cut thigh, aches/lethargy after going to Stradbroke Island, material embedded in eyes from grinding and the injury with the sledge hammer on 29 November. Dr De Barros made no record of any complaint prior to 29 November, about pain to the area of his neck although it is conceded that the visits were in relation to more acute injuries. Dr De Barros referred the Appellant to Orthopaedic Surgeon Dr P.W. Brazel in respect of the 29 November injury.

The Appellant gave evidence of his work practices with the employer Bradken Resources Pty Ltd which were consistent with the work practices described to Dr Gillett. He commenced employment on 26 March 2004 as a fretler which basically involved the use of various grinders to render jobs presentable to buyers. The employer made metal objects in a furnace by pouring hot metals into large moulds. The grinding process involved the use of a variety of hand and weighted grinders and involved a lot of awkward postures associated with his head and neck. The weights of the grinders varied. He grinded small to very large objects, he grinded inside and outside objects and he grinded low and high.

The Appellant said he performed the grinding activity from the commencement of his employment until he was moved to the sledge hammer job about 3 weeks before the injury. He said the muscles in his neck would feel stiff from being in a position where he was bent over but looking horizontally while holding a nine inch grinder. He was complaining about material in his eyes and his sore neck to his Leading Hand Steve Johnson and then he told his supervisor Lenny Arnold that he had metal in his eyes, had cut himself, had a sore neck, his body was falling apart and he would leave unless he was moved to another job. It was then that he was given the sledge hammer job. He said that on two or three nights a week, he would have a “crappy night’s sleep” because of the sore neck although it was not there all the time but would dissipate and then reappear. He also said in re-examination that he had never had a problem with his neck previously and that he had remembered the “Kenworth brackets” (moulds he had been grinding) and that they caused trouble with his neck and that was the cause of the injury. He said that after he finished the grinding job, the neck settled down.

Dr Brazel saw the Appellant on 24 January 2005. He opined that Mr Mimica had an aggravation of a pre-existing degenerative disease in the cervical spine and that the history was consistent with the stated cause. He said that prior to using the sledge hammer, the Appellant was using a grinder, as a result of which he noted a clicking in the spine, but certainly no symptomatology similar to what he currently experiences. In that report, he stated that the symptomatology consisted of “mid-thoracic pain radiating to the mid-cervical region”, “significant headaches that are often pre-orbital”, “a reduced range of motion of the cervical spine, particularly with rotation and upward gaze” and that “sleep patterns are not troublesome, however there is significant morning stiffness”. He said that the Appellant related that he swung a sledge hammer quite forcibly to shift a piece of metal and missed. The Appellant said he noted significant pain in the neck and thoracic spine on the follow through.

Dr Brazel said the symptomatology related to the 29 November incident and that there was no mention of any pain occurring before that time. He explained that in relation to the “clicking” that it was a mild click and that the symptoms he had prior to the episode in November did not seem to be of any major limiting factor and that the major symptomatology that occurred was as a result of the incident in November.

Dr Brazel again saw the Appellant on 7 March 2005 and at that time, in a report dated 23 March, he assessed the permanent impairment of 5%. In that report he noted that the Appellant related to pain on upward and downward 3 gazing, (“upward gaze” having been explained by the Appellant in his evidence of bending over but looking horizontally while holding the grinder). He said he did not agree with Dr Gillett’s opinion that the incident of 29 November contributed 4% to the impairment and the work practices over time, contributed 1% to the impairment. The history recorded by Dr Gillett was put to Dr Brazel in cross-examination and he agreed that it was a mechanism of injury consistent with producing injury to the cervical spine. He pointed out that the histories were different in that the Appellant told him he swung with a sledge hammer and missed. He also pointed to the long-standing degenerative change in the cervical spine. He said it was more likely that an acute event would cause the onset of symptoms rather than over a period of time, given those degenerative changes. He said that the work practices described could cause this trouble in a cervical spine but that the Appellant did not relate to that on the two occasions that he saw him.

While it is not clear from the 23 March report that the Appellant related to “pain on upward gaze” before the injury on 29 November, Dr Brazel explained in cross-examination that Appellant complained of a click in his neck and pain on upward gaze and he assumed he meant while working with the grinder.

Dr Brazel had no doubt that the work practices could cause some discomfort in the cervical spine and agreed that swinging the sledge hammer for a long period of time may cause some discomfort but that he wouldn’t have thought it would have been a significant contribution to the aggravation. By using the word “discomfort” he said he meant “pain”.

Dr G. Gillett, Orthopaedic Surgeon, saw the Appellant on 12 May 2005. In his report he said:

“ It is my opinion based on material facts as a consequence of a work-related event on the above date (29 November) Kresimi Mimica has had a mechanism of injury consistent with producing injury to the cervical spine. The work practice that Mr Mimica describes prior to the event on of above date are consistent with work practices that would produce problems associated with the cervical spine.”.

The work practices referred to were explained to be with the grinders and “injury” was explained in evidence to be aggravation and pre-existing degenerative changes.

Dr Gillett conceded in cross-examination that the word “would”, should be replaced with the word, “could”. He further stated:

“He has pre-existing degeneration of the cervical spine based on MRI findings but he was asymptomatic prior to the work practices. The major contributing event to the current situation is the working practice using the grinder and his sledge hammer event. .. Without this working practice, it is unlikely that he would have developed symptomatology in the neck in the foreseeable future. It is possible he may have developed symptomatology in a period of 7 to 10 years from the date of the injury had he not had the work practice and injury.”.

Dr Gillett said in evidence that the awkward postures adopted whilst grinding can produce a strain or neck pain. As to whether the neck pain constituted an injury, he said it may produce strain which produces temporary pain and if it then goes away when the activity ceases and there is no ongoing problem, that would not be an injury. It may produce pain which is continual and that would constitute an injury or it may produce a vulnerability to ongoing problems that were not there before and that would constitute injury. He said that a person might do an activity, get pain, stop doing that activity and no longer have the pain, but lesser activities then produce pain and he would consider that to be an injury.

He confirmed that the major contribution to his pain and problems when he saw him was the event of 29 November but that there was a contribution to the events from when he started work until 29 November. That contribution he put at 1%.

He said that Mr Mimica did not tell him that he had constant pain. He recorded the complaint as “Aware of neck discomfort whilst doing the grinding activity and asked to move away from the grinding”. He said Mr Mimica did not relate to neck problems after being moved from the grinding. He conceded that if Appellant had related that he did the grinding activity and after ceasing that activity he had ongoing pain up until the events of 29 November, he might be more inclined to say that the grinding activity amounted to a predisposition and therefore an injury.

In re-examination he said that if he gets the pain doing the task, has it overnight with difficulty sleeping, its gone and then reoccurs, that would be consistent with an ongoing pathology, an ongoing problem.

In a further report dated 27 September 2005, in answer to specific questions, Dr Gillett said he believed the over-period- of-time work practices had contributed to the Appellant’s condition, being the period of employment with Bradken Resources Pty Ltd. He attributed 4% to the 29 November event and 1% reflecting the pathologies occurring prior to that date in his work practice. He said that his current symptoms were a direct consequence of the events of 29 November with pathological processes occurring prior to that time.

The question is whether the Appellant suffered an injury to his neck, i.e., an aggravation of his pre-existing degenerative condition, over a period of time, with the employment being a significant contributing factor. While this is 4 a question of fact, or perhaps a mixed question of law and fact, it is the opinions of the medical witnesses which take on importance in this case and are in issue. Questions of fact are to be proved by the Appellant on the balance of probabilities. It was held by Hall P in WorkCover Queensland v BHP (Qld) Workers’ Compensation Unit (2002) 170 QGIG 142 that it was “settled that the activation of pain is to be equated with the aggravation of an underlying disease; i.e., it is sufficient that an asymptosmic disease becomes painful, even if there is no change to the underlying pathology”. His Honour cited Pleming v Workers’ Compensation Board of Queensland (1996) 152 QGIG 1181 where de Jersey P expressed the view, on authority, that one should regard the “disease” as encompassing the symptoms, that is, the pain. De Jersey P also cited that pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place. His Honour referred to a decision of the High Court in Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533 where the symptoms of a worker with dermatitis flared up when he worked and abated when he ceased work. Toohey J held that the symptoms produced while the Appellant was at work constituted an aggravation of the condition, hence the Appellant was then suffering from a disease.

There are some matters of significance which I have particularly identified for comment. My decision however is based upon the whole of the evidence.

The history, including past medical history, recorded by Dr Brazel on 24 January 2005 was:

“Mr Mimica was working as a labourer for Bradken Industries.

Mr Mimica related that he swung a sledge hammer quite forcibly to shift a piece of metal and missed. He noted significant pain in the neck and thoracic spine on the follow through.

Mr Mimica’s previous surgery includes removal of a foreign body and a suture to a thigh laceration.

Mr Mimica related that prior to using the sledge hammer he was using a grinder, as a result of which he noted a clicking in the spine, but certainly no symptomatology similar to what he currently experiences.”

The history recorded by Dr Gillett on 12 May 2005 was:

“Mr Mimica stated that he worked for Bradkin Pty Ltd (sic) which is described as a fretler. It was a grinding job of poured metal. Bradkin Pty Ltd makes metal objects by pouring metals into large moulds. The grinding process involved the use of a variety of hand and weighted grinders. It involved a lot of awkward postures associated with his head and neck and weights of the grinders varied and it was difficult work.

He had to grind small to very large objects. He grinded inside objects or outside objects and he grinded low and high.

He was aware of neck discomfort whilst doing the grinding activity and asked to be moved from the grinding. The grinding was also causing injury in that he got metal shards into his eyes and he cut himself. One week he had seven metal splinters into his eyes. This is despite wearing glasses and a helmet.

He was moved to another area of the work process which involved him using a sledge hammer. The last pour leaves metal hanging off the mould and it was his job to knock it off. The sledgehammer and instrumentation varied but on the day in question he was using as 30-pound hammer. Where he was knocking the excess off it also varied in height, sometimes it was low and sometimes it was high. On this day he was hitting to the metal overhang and the hammer reverberated. It would not always break. On this occasion it did not break and he hit it. He hit it on one side with the right sided swing and when he went to move to the left side as he lifted the hammer he had severe (sic) in the region of the neck and it felt it jolted. He buckled at the knees. He had difficulty with breathing. He was attended to by the company doctor. He was advised to take a week off and see how it would go.”.

The past history is recorded by Dr Gillett as:

“He denies previous problems associated with his injured areas. He states that his health is good and he is a smoker and he smokes 5 cigarettes per day and he is not on medication.

He states that six months before the accident he went to General Practitioner because he “had no energy”. He was given medication and prescription for medication. He did not take those but he states in a subsequent medical report from the General Practitioner it is said that he was on anti-depressant medication. He never took that medication.”.

It is noted that the history given to (or recorded by) Dr Brazel was inconsistent to that given to (or recorded by) Dr Gillett, namely on the one hand that he swung and missed, on the other that the injury occurred when he lifted the hammer. While both histories were said to be consistent with the injury sustained, the inconsistent accounts are noted. 5

It is also noted that the Appellant made no complaint about pain to Dr De Barros although he had seen Dr De Barros on five previous occasions dating from 16 April 2004. He did not suggest to WorkCover that there was any pre-existing pathology although it is entirely possible that the Appellant did not then appreciate the significance of the discomfiture. He denied to WorkCover in the claim form that the injury occurred over a period of time.

The history recorded by Dr Gillett is much more comprehensive than that recorded by Dr Brazel. While I accept that it is possible that Appellant’s version has improved with the passage of time, I note that when the WorkCover claim was lodged on 13 December 2004, at a time prior to visiting either Dr Brazel or Dr Gillett, the Appellant described the happening of the injury as “lifting up sledge hammer”. That description is more consistent with the account recorded by Dr Gillett than it is to the account recorded by Dr Brazel. That might reflect that Dr Gillett was more thorough in his questioning of the Appellant in compiling the history rather than that the Appellant improved his version.

Dr Brazel’s report of 24 January 2005 indicated that there was a “clicking” when using the grinder. In the report of 23 March, he referred to pain on upward and downward gazing. While it is not clear from that later report that the pain on “upward or downward gazing” is after 29 November or before 29 November, his oral evidence confirms that it was associated with the “clicking” at the time of grinding. It is therefore apparent to me that Mr Mimica complained to both Doctors about pain or discomfiture to his neck associated with the grinding activities so that I have no reason to believe that complaints to Dr Gillett (being later in time) were some sort of recent invention or improvement.

While it would be natural to assume that a patient would report troublesome pathology to his Doctor, it might well be that the “sore neck” and “stiff neck” being experienced by Mr Mimica were overtaken by the numerous shards in the eyes and other cuts and bruises. The evidence was that Mr Mimica was moved from the grinding job because of the shards in the eyes and the sore neck, matters which he reported to his supervisor. Mr Rashleigh may have correctly identified that it was the extensive history given to Dr Gillett which sparked the interest in the over-period-of-time injury. I accept that the failure to divulge that pathology to Dr De Barros or to WorkCover has been explained.

Mr Sapsford has submitted that the Appellant has not established that he suffered a compensable injury. He submitted that it was Dr Gillett’s opinion that the mere discomfiture of doing a job that ceases when ceasing that job does not amount to injury. But I think the evidence goes further than that. The “discomfiture” was something more than being uncomfortable but comprised “pain” and that pain reoccurred in conjunction with a clicking. Dr Gillett’s opinion was that it would be consistent with an ongoing pathology or problem. This grinding activity had occurred over a period of about 7 months whereas the hammer work was only undertaken for about 3 weeks.

It was also raised that it was Dr Gillett’s opinion that there was a possibility that the grinding activities were such as to predispose his already degenerative spine to the injury of 29 November but that such a predisposition could not be accurately determined, although it was a matter of looking at all the facts and circumstances. In his opinion, in circumstances where pain developed which stayed after removal from the activity, it was more likely to be a predispositioning factor to the subsequent injury. It was submitted that because the pain went away, then the natural conclusion was that the likelihood of the activity predisposing significant injury was slight. However, Dr Gillett’s opinion was based on the particular facts and circumstances and he had access to a full and accurate history upon which he relied in coming to a view that the activity comprised a contribution of 1% in a 5% impairment.

In accordance with BHP, the activation of pain is significant.

It was also submitted that if it was found to be an injury, the employment was not a significant contributing factor. Unlike the situation in Pleming, where the significant contributing factor was the degenerative condition and the employment was found to be comparatively minor and unlike the situation in BHP where there were 10 competing causes, Dr Gillett’s opinion included the work practices using the grinder as “the major” contributing event and I accept that evidence. In my finding, while a 1% impairment is not a significant injury, that 1% impairment came about because of the work practices associated with the grinding from when he started work and the degree of contribution to the total impairment is not slight. I accept the submission that the employment was “a significant” contributing factor to the aggravation of the underlying degenerative disease. While Dr Gillett’s opinion was that the activity was “the major” contributing event, that description falls within the legislative phrase “a significant contributing factor”.

On the whole of the evidence, on the balance of probability, I accept, as more reliable, the opinion of Dr Gillett that the Appellant has suffered an over-period-of-time injury during his employment with Bradken Resources Pty Ltd and that the major contributing event was the work practice using the grinder and sledge hammer. I set aside the decision of Q-Comp and decide that the application is one for acceptance. I reserve the question of costs.

B.J. BLADES, Commissioner. Appearances: Mr P. Rashleigh instructed by Mr J. Grevell of Hearing Details: Grevells Solicitors for the Appellant. 2006 20 December Mr S. Sapsford instructed by the Respondent, with 2007 9 January him Ms A-M Treston of Q-Comp. Released: 5 January 2007 6

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