[Extract from Queensland Government Industrial Gazette, dated 16 December, 2005, Vol. 20, No.18, pages 1127-1129]

INDUSTRIAL COURT OF QUEENSLAND

Workers’ Compensation and Rehabilitation Act 2003 – s. 561 – appeal against decision of industrial magistrate

Noel Joseph Pepper AND Q-COMP (C/2005/32)

PRESIDENT HALL 30 November 2005

DECISION

It is not in dispute that Mr Pepper has sustained a personal injury. The injury was to his lower back by way of an L4-5 disc prolapse or herniation. Ultimately, an L5/S1 discectomy was performed. A large disc fragment was found and was removed. It appears that whilst post operation no compression is evident, Mr Pepper will henceforth be restricted to light sedentary work. Hitherto he had performed heavy manual work, e.g. lifting skins in a tannery, cleaning, concreting, kerbing and channelling, farm work and powder coating.

The issue has always been whether Mr Pepper’s employment in the tannery was a significant contributing factor to the physical injury which he has sustained.

WorkCover rejected Mr Pepper’s claim. There was a statutory review. Q-COMP confirmed the decision of WorkCover. There was an unsuccessful appeal to the Industrial Magistrates Court. Mr Pepper now appeals to this Court.

As a matter of first impression, the case which Mr Pepper advanced before the Industrial Magistrate was a strong one. His work involved reaching into tubs of water, seizing sheep skins and throwing the skins onto pallets. It involved bending, lifting, twisting and throwing. The work was repetitive. There were ninety to one hundred and twenty skins per tub of water. There were seventeen tubs to be worked through in the course of a day. Mr Pepper worked through ten to eleven of those tubs. The work was arduous. When wet, the skins weighed about twenty kilograms. It was just the sort of work which was likely to cause a lower back injury. And on that point, Mr Pepper had the support of the only specialist who gave evidence, viz Dr John Pentis, an orthopaedic surgeon.

Dr Pentis opined that:

“The gentleman has suffered a lumbar disc protrusion and extrusion. It is more than likely that the work that he has undertaken caused this. He may have had some slight degeneration before it but the overall problem is due I’d say to the lifting of hides, twisting, throwing them onto racks. This is a force that will cause a disc disruption and it can present the way he mentions, where he woke up one morning with pain.”.

When giving his evidence, Dr Pentis was provided a description of the work as provided by the Appellant in evidence- in-chief. Dr Pentis was asked:

“If his activities were of a repeated nature such as that where he was doing those activities for up to 1000 skins per day, what stresses would that place on someone’s lumbar spine? – Yeah, well, they’re not the best activities to carry out on the spine. They will put forces on it and it will tend to injure the area.

In regard to causing any disc degeneration or weakening, would those types of activities cause a disc degeneration or weakening in the spine? – Yeah, they will.”.

In examination-in-chief Dr Pentis also said:

“He – on or about the 30th October 03 he was working in the wet area, he – he felt pain in his back, he went home that night, the next morning he sat up in bed, put his feet onto the floor and immediately felt pain or increased pain in his back. That pain suffered on – in – on that morning, how is that related to the ongoing stresses to the back caused as a result of his work practices? – Well, if you’re getting increasing problems and increasing tear in the disc, its quite possible to go to bed and the following day you have increased symptoms with the ruptured, it may have ruptured the day before, the night before, and it can take time to suffer the symptoms and signs to develop if we’re not sure whether it’s specifically pressure on the nerve or whether it’s a decreased blood supply in the nerve or even filtering out of some of the chemicals in a disc that cause the irrational of the nerve and cause the pain and so it can take time for it to come on and there is a history of someone having had a sore’ish back going to back, the next morning not being able to get out of bed. In actual fact it’s – I’ve experienced it twice.

So waking up with the pain is consistent with the – the effect of the work practice on – on the spine? – Well, if there’s no other injury that’s occurred and it’s from the work activities over the period of time before it, then more 2

than likely that’s the cause. You know, if say the night before he went to bed he went out and jumped over a cliff or lifted 100 kilograms of weight or 50 kilograms of weight and injured his back then, well, that’s force. There’s no incident – or there’s no history of that, then it is the work activities that have caused the disc problem and eventual protrusion.

The – the continual work practice that he engaged in, would that cause a – a weakening of the disc to the point where even a relatively minor incident could cause a disc protrusion?—It could, yes. That can happen. As I said, you do see a lot of people who have got a sore back and then all of a sudden they bend over to get something out of the cupboard, or they bend over to pick up a piece of paper off the ground, well, it’s not picking up the piece of paper that causes the disc protrusion, but it’s the fact that it’s the bend which has affected a weakened disc and caused it to protrude out. (emphasis added)

And the work practices involved here where up to 1000 times he engages in this activity of bending, pulling up, twisting, throwing forward…? – Yeah, well, I consider that quite heavy work. Wet sheep skins weigh something like 20 to 30 kilos and you’ve got to lift them and twist them and throw them, that’s quite heavy work, especially if you’re doing it repetitively as well.”.

In cross-examination Dr Pentis was asked:

“So that this waking in the morning and feeling pain might well have been attributable to something that occurred many years before? – Yes, quite possible, but on the history that’s provided and the type of work he was doing, it – really strenuous work and it is work that is no good for your lower spine.

In the absence of anything else you’d think that it might have been contributory? – Yeah, well, I’d say it would be the cause.”.

The passage emphasised is of particular importance. It was the evidence of Mr Pepper that the incapacitating pain came upon him one morning in November 2003 as he was getting out of bed. His evidence was that the pain came upon him as he sat on the edge of the bed with his feet on the floor, and that he continued to experience the pain as he walked to the breakfast table to have breakfast. On Dr Pentis’ evidence the injury might be traced to the work and the work would remain a significant contributing factor though the immediate trigger was a domestic activity entirely unrelated to work. The authorities, I should add, make it clear that it is not necessary for the ultimate pain to develop seamlessly out of work related incidents, see WorkCover Queensland v Elliot Anderson (1999) 160 QGIG 175, a case decided under a legislative regime which required a claimant to show that the work was the major significant factor causing the injury.

To return to the beginning, it was at first blush a strong case.

The first difficulty was that there was a competing cause. The general practitioner who had issued the medical certificate initially relied upon by Mr Pepper on the application to WorkCover had treated Mr Pepper on previous occasions. On the basis of his recollection of conversations which he had had with Mr Pepper, conversations of which I hasten to add no notes were taken, the general practitioner was able to tell the Industrial Magistrate that Mr Pepper did “fairly serious gym work” and did weights or weightlifting.

The second difficulty was that certain of Mr Pepper’s workmates were called. It was their evidence that Mr Pepper had told them about the onset of the pain – at home and before he came to work – but had not suggested that his work was a contributing factor. If that evidence had stood alone, it would not have been a matter of moment. As the Industrial Magistrate noted, the witnesses were not asked to recall the conversations until a significant time had elapsed. Additionally, the witnesses seemed to have it in mind that Mr Pepper had told them that the onset of the serious pain coincided with the preparation of breakfast. There was absolutely no reason why Mr Pepper should have misled the witnesses about that. Similarly, on the issue whether Mr Pepper reached for a box of cereal or reached for a box of porridge, there is no apparent reason to doubt the evidence of Mr Pepper. If the evidence of the workmates had stood alone, it seems to me that it might appropriately have been put aside. But it did not stand alone. It was the evidence of the general practitioner that it was not until the second visit that Mr Pepper sought to attribute the pain to his employment. The general practitioner had every reason to remember that because he was being asked to supply a certificate to support a WorkCover claim, and because he could remember taxing Mr Pepper with the circumstance that Mr Pepper’s work had not previously been raised as a cause.

The third difficulty was that Mr Pepper claimed to have told his supervisor (Mr Pierce) on no fewer than six occasions that his work was causing distress to his back. Mr Pierce denied that. It was not a matter of Mr Pierce asserting that he “could not recall”. The word “recall” was certainly used but in the context of an affirmative assertion that Mr Pierce had no remembrance of any particular occasion on which Mr Pepper had complained. I accept that it is entirely regrettable that it was only after the initiation of Mr Pepper’s claim that the employer introduced a system of recording complaints (if any) about the impact of work upon the health and bodily functioning of employees. I acknowledge also that employees in modest employment and with poor prospects do, on occasion, strive to avoid allowing the employer to know that the work is impacting upon their health because of apprehension (perhaps unfounded) that the employment 3 may be brought to an end. The problem was not that Mr Pepper failed to complain, but that Mr Pepper claimed that he had complained and Mr Pierce claimed that he had not. It was incumbent upon the Industrial Magistrate to resolve the conflict. It was important because of the (alleged) late attribution of the injury to Mr Pepper’s work.

For all the strength which Mr Pepper’s case displayed at first blush, at the end of the day the Industrial Magistrate was faced with evidence that there was a competing cause and evidence upon which it might be inferred that Mr Pepper had been gilding his case.

An appeal from an Industrial Magistrate to this Court under the Workers’ Compensation and Rehabilitation Act 2003 has this in common with any other appeal: it is about the correction of error. And any error must be corrected on the Appeal. There is no capacity to remit the matter to the Industrial Magistrates Court to be heard and determined according to law, compare s. 562. On occasion that limitation may become an obstacle to the expeditious determination of an appeal. This was such an occasion. Dr Hendry’s evidence about gym work and doing weights/weightlifting came as a surprise. In consequence, counsel for the Respondent (very understandably) put that evidence neither to Mr Pepper nor to Dr Pentis. That may have been a matter of moment. To deal with the Appeal on the record would have involved dealing with the Appeal circumstances in which for all this Court might have known, if given the opportunity, Mr Pepper might have wholly denied the evidence about gym work and weights/weightlifting and/or put quite a gloss upon it. In those circumstances (with much reluctance) I exercised the discretion at s. 561 to allow “additional evidence”. The additional witnesses were recalled witnesses; viz Mr Pepper and Dr Hendry. In the event, the evidence fell well short of the material which put quite a different complexion on the evidence of the trial and well short of evidence demonstrating that Dr Hendry’s evidence was improbable. Indeed, Dr Hendry’s evidence about the gym work and doing weights/weightlifting seems to me to have been confirmed.

Mr Pepper gave evidence as to his past sporting activities and his involvement with the weights and weight training. He had played rugby league until 1993. He had in that year represented Australia at boxing. He abandoned both sports for financial reasons. He had not at any time engaged in weightlifting in his understanding of the practice; viz lifting heavy weights. He did, however, confirm that he had engaged in “weight training” using lower weights, viz ten to twenty kilograms performed in sets of eleven which he would do four times. He said that he engaged in such weight training until he retired from football and boxing in 1993. His evidence was that he resumed weight training for a period in or about 1994 to 1995 and again in or about 2000 or 2001. He said that he continued weight training until about a month after commencing work in the tannery. The weight training was performed at home and was supplemented by the use of bench presses and the use of eight different apparatuses on his body. The evidence about the frequency of the weight training is (regrettably) less than clear. It is not immediately apparent whether in the latter (material) period it was five times a week or whether the reference to five times a week related to the bench presses and other apparatuses and the weight training occurred no more frequently than once or twice a week. It was Mr Pepper’s evidence that his financial circumstances permitted him to attend a gymnasium only infrequently.

It is plain from Dr Hendry’s evidence that he had always understood that the Appellant engaged in weight training and not weightlifting. Dr Hendry reiterated that Mr Pepper had told him that he engaged in weight training and added that he had independently formed the view that Mr Pepper was a weight trainer because of his “chiselled” muscles. He opined that performing one to three sessions per week of four sets of eleven with twenty kilogram weights was light weight training, three to five sessions per week would be moderate weight training, and that five to seven sessions would be heavy weight training.

Save that Dr Hendry’s evidence about Mr Pepper’s build provided some basis for wondering whether Mr Pepper’s recollection of the extent of his activities was entirely accurate, it seems to me that the “additional evidence” simply left in place the difficulties which had arisen at the trial in the Industrial Magistrates Court.

I accept that the matter is not clear cut. It is a difficult and borderline case. The Industrial Magistrate had a difficulty to confront. His Honour did confront the difficulty and chose to accept the evidence of the Respondent’s witnesses in preference to that of Mr Pepper. No reliance seems to have been placed upon demeanour. There is nothing to attract the operation of the decision in Fox v Percy (2003) 214 CLR 118. It was simply a case of an Industrial Magistrate making a decision which His Honour was required to make and which was, on the evidence, reasonably open to His Honour.

I dismiss the Appeal.

I reserve all questions as to costs.

Dated 30 November 2005.

D.R. HALL, President. Appearances: Dr G.T. Cross instructed by Patino & Company Lawyers, for Released: 30 November 2005 the Appellant. Mr S. Sapsford, directly instructed, for the Respondent. 4

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