<p> [Extract from Queensland Government Industrial Gazette, dated 8 June, 2007, Vol. 185, No. 6, pages 86-91]</p><p>QUEENSLAND INDUSTRIAL RELATIONS COMMISSION</p><p>Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal</p><p>Ian James Johnston AND Q-COMP (WC/2006/84)</p><p>COMMISSIONER BLADES 28 May 2007</p><p>Workers' Compensation and Rehabilitation Act 2003 - Appeal to the Commission from a decision of Q-COMP rejecting an application for compensation - Back injury - Account of incident differing from contemporaneous medical records - Application for compensation not made until 12 months after alleged incident - Question of fact - Onus of proof - Appeal dismissed.</p><p>DECISION</p><p>Ian James Johnston, (the Appellant), claims he injured his back on 2 April 2004 while lifting a water pump during his employment as a Rural Ganger with the Cloncurry Shire Council. He lodged a claim for compensation with the self- insurer, Local Government Workcare, for an injury described as "prolapsed disc - back" which was rejected on 24 January 2006. The Appellant lodged an Application for Review with Q-COMP on 14 August 2006 which was rejected on 10 October 2006.</p><p>In this proceeding, the onus is on the Appellant to prove that his affliction falls within the definition of "injury" as contained in s. 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) which defines "injury" as "a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury". That onus of proof is to be discharged on the balance of probabilities.</p><p>The Appellant alleged that on 2 April 2004, a Friday, he was working as a Rural Ganger for the Cloncurry Shire Council. He had sat for 3 hours in a meeting without a break when at about 3.00 p.m. he was directed to a job site at Slatey Creek to pick up road signs. He was then directed to load a water pump onto a semi-articulated vehicle. With the assistance of a contractor, Paul O'Keefe, at about 4.20 p.m., the pump was lifted in stages to the platform of the semi where it was rested at intervals. On the third lift, he felt a sudden tear in his back. He felt a sensation which took his breath away. He had to lean on the back of the tray of his utility parked nearby. He drove home, leaving about 4.20 p.m. By the time he arrived home at about 5.00 p.m., his back was in pain and stiff. The pain was intense. He had to get assistance from his wife to climb the stairs. Each time he raised his leg it hurt. He lay down for an hour. The pain became more intense. He had pain in the stomach and back, leg weakness and pain in both legs, down through the thigh muscles touching the calves but more so in the thigh region. The pain was in the back of the legs. His wife drove him to the Cloncurry Medical Clinic at about 7.00 p.m. where he saw Dr Kousary who referred him to the Cloncurry Hospital. He was given a needle at the Hospital by the Nurse, on the instructions of Dr Kousary. He later saw Dr Kousary who asked him how it happened and he told Dr Kousary that he had lifted a water pump and that on the third stage of the lift, he felt a tearing sensation in his back. He said Dr Kousary asked him if it was a workers' compensation claim and the Appellant said he replied "I don't know". He said that Dr Kousary told him that he probably just strained his back, would give him 3 days off and it should be fine. The Appellant told the Doctor that he didn't want a workers' compensation claim if he had just strained his back because he had just started work and was still on probation. The Appellant was given 3 days off work. He asked his wife to ring work. He said he went back to work on Thursday 7 April 2004 and when asked where he had been for the last 3 days, he told his boss, Mr Wren, that he had sprained his back lifting the pump onto O'Keefe's truck. He handed him a medical certificate showing "sprained back". The pain did not settle down although the workforce went on holidays over the Easter period and he also took some leave. There followed a number of visits to doctors and hospitals.</p><p>The Appellant's evidence, particularly that of the visits to the Cloncurry Clinic and Hospital was corroborated by his wife.</p><p>This evidence would be uncontroversial on its journey towards satisfying the onus of proof borne by the Appellant that he suffered an injury arising out of, or in the course of his employment because it is obvious that, in these circumstances, the employment was a significant contributing factor to the injury. However, there are circumstances which raise serious questions about the Appellant's version of the events.</p><p>To summarise those circumstances, I quote from the decision of the Review Unit of Q-COMP:</p><p>"  the Cloncurry Clinical records dated 3 April 2004, created contemporaneously to the alleged work related event, clearly state that the applicant did not report any recent injury, heavy lifting or fall. 2</p><p> there is no record of any work related injury or event in the Mt Isa Base Hospital records dated 23 April 2004.  the Princess Alexandra Hospital records dated 13 May 2004 do not refer to any work related injury being sustained on 2 April 2004 and simply noted that the applicant reported operating heavy machinery in the previous three weeks (equating to the end of the month of April).  the Patient Election Form completed and submitted by the applicant to the Princess Alexandra Hospital clearly stated that the applicant was not suffering from a work related injury or illness.  Dr Hatcher stated that the applicant did not report suffering from back pain as a result of an incident at work on 2 April 2004.  Dr Coroneos was of the opinion that the applicant's injury was entirely due to a long standing degenerative disc disease described as 'lumbar spondylosis'."</p><p>The Patient Election Form is not in evidence and its presence or absence has not been the subject of comment. Of course, it forms no part of the evidence in this proceeding.</p><p>Additional material reveals that there was no incident report submitted by the Appellant until 12 May 2005 (one year after the event). The claim for compensation was lodged 27 June 2005. Ms Welland, previously the Workplace Health and Safety Co-ordinator at the Cloncurry Shire Council, gave evidence that the first time she had any indication that the Appellant had suffered a work related injury was when she returned to work after maternity leave and spoke to the Appellant on 4 May 2005. Her notes reveal that there were medical certificates for the periods 25 April 2004 to 28 April 2004 and 5 May 2004 to 20 May 2004 and Centrelink medical certificates for the periods 13 May 2004 to 7 June 2004; 7 June 2004 to 28 June 2004; and 8 July 2004 to 18 July 2004. She also gave evidence that the Appellant had signed a document, Exhibit 3, a "Proposed Suitable Duties Program" for a "Non-Work Related Injury", dated August 2004. She gave evidence that at the time the document was signed, she asked him "Is it non-work related" to which he replied "Yes" and "Did it happen at work" to which he replied "No". Ms Welland also gave evidence that she never saw a medical certificate on a Q-COMP form in June 2004 but on 12 May 2005, she received 3 certificates, dated 17 June 2004, 30 November 2004 and 6 May 2005. They accompanied the incident report form.</p><p>The certificate which was issued on 17 June 2004 on a Q-COMP form was issued by Dr Moffrey of the Princess Alexandra Hospital for what appears to be "back pain - prolapsed disc", the certificate of 30 November 2004 issued by Dr Kousary was for "anxiety, severe stress and chest pain, caused by ongoing friction and confrontation with his boss" and the certificate issued on 6 May 2005 by Dr Verran was for "on going back pain" caused by "twisting in stores, at present bitumen shovelling and climbing ladder".</p><p>The Appellant's case consisted of evidence by the Appellant; his wife Mrs Johnston; Dr Choong - General Medical Practitioner; Dr Gillett - Specialist Orthopaedic Surgeon; Dr Moffrey now Statutory Gynaecology Registrar; Dr Kousary - Medical Practitioner; and Mr Paul O'Keefe, then Water Contractor, Cloncurry Shire Council. Evidence was given for the respondent by Ms Welland - then Workplace Health and Safety, Rehabilitation and Risk Co-ordinator, Cloncurry Shire Council; Mr Wren - then Road Works Supervisor, Cloncurry Shire Council; Mr Ned Bourke, then motor mechanic Cloncurry Shire Council; Dr English - Specialist Orthopaedic Surgeon; and Dr Coroneos - Specialist Neurosurgeon.</p><p>Mr O'Keefe was the Water Contractor at the time of the incident. He was unsure of the date. He said it would usually have been a Monday or a Friday when the pumps were moved. He can remember an incident where he and the Appellant went to pick up a water pump to lift it onto the tray of a 4WD Toyota Hilux. During the lift, the Appellant said he hurt his back and by his facial expression, it appeared to be so. They put the pump down and after a short rest, again picked it up. He said the pump was too heavy to be lifted by one person, it was awkward, heavy and bulky. He had his water truck there - a semitrailer, but denied the pump was lifted onto the semi. He said his memory was clear that it was loaded onto the utility and not the semi. He said it did not make sense to lift it onto the semi because it was physically too heavy.</p><p>Dr Gillett examined the Appellant on 27 October 2006. A lengthy history was provided to him. He opined that, based on that history, the Appellant sustained a derangement of the L3/4 disc as a consequence of the working practice of 2 April 2004. He went on to say that if the history was correct, the Appellant has been left with a 5% impairment of whole person function at this time, directly related to the 2 April 2004 event. But he went on to say that the contemporaneous medical records do not support injury due to the event of 2 April 2004. They support a concept of longstanding degenerative processes associated with the lumbar spine which were symptomatic. He went on to say that if the Appellant's account of events is not correct, then it is difficult to say that an injury occurred at work. Dr Gillett said that he had no doubt the mechanism of lifting the pump as described by the Appellant would be consistent with producing a discal protrusion but he also conceded that based on Dr Choong's notes, the notes for 21 August 2003 and the x-ray, that the disc protrusion could have been present then although it could not be said definitively. He was of the view that, due to the work history after 20 August 2003, the back recovered and was functional. The work history given to Dr Gillett was that from 1992 to 2004, the Appellant would get an odd backache but wouldn't lose time from work and that it did not give him much trouble. 3</p><p>If the Appellant's evidence is to be accepted, it is not only that apparently independent Council Officers are in conflict with him but also obviously independent medical professionals whose evidence is in conflict and not only inconsistent, but even untruthful.</p><p>The Appellant's difficulties really commence with Dr Kousary's notes which reveal that the initial visit to his Clinic and then to the Cloncurry Hospital was on 3 April 2004, a Saturday, at 6.15 p.m., not 2 April 2004 as alleged by the Appellant and Mrs Johnston. Dr Kousary would not concede the date may have been incorrect. He did concede that there was a possibility he may have seen him on the Friday and again on the Saturday because usually the Clinic closes at 2.00 p.m. on a Saturday. But he also said that the Clinic may have been busy on the Saturday and remained open. The date of 3 April 2004 is recorded on the notes by both Dr Kousary and the Hospital's Charge Nurse. There is also Exhibit 18, being a Health Summary compiled by Mrs Johnston. The date it bears is either 3 April 2004 or 5 April 2004, certainly not 2 April 2004. Mrs Johnston denied writing the date, saying that the date was left blank (in itself a feat of memory) but the handwriting appears to be consistent throughout. 5 April 2004 seems to have no relevance to anything and Mrs Johnston said she thought she completed that form when she was watching her husband being examined by Dr Kousary at the Clinic. The date is more likely to be 3 April 2004 which corroborates the Doctor's notes. </p><p>The Appellant and his wife, Mrs Johnston, described in graphic detail the events of 2 April 2004 and the visit to the Cloncurry Medical Clinic, the Cloncurry Hospital and Dr Kousary. This graphic detail even included a description of the setting sun she described to her husband who was then in considerable pain in the passenger seat and complaining about the bouncing of the motor vehicle as she drove him to the Cloncurry Clinic. The only written record of any visit to the Cloncurry Hospital or Clinic in relation to this injury was the Doctor's notes. In rather verbose detail, Mrs Johnston described the events of 2 April 2004 and she described how she remembered quite clearly her husband advising Dr Kousary that after he had been sitting in a meeting for 3 hours, he was lifting a pump and the injury occurred in a 3 stage lift. This is in total conflict with the written record of Dr Kousary. Dr Kousary testified it was basic medical practice to obtain a history to establish whether the condition was caused by an acute event. He said the priority was to establish that there was no injury to the spinal cord because that would change the treatment plan. That explanation is understandable and probable. The notes record "Low back pain. History of chronic back pain. No recent injury. No heavy lifting or fall. No heavy lifting. On observation and examination, no neurological deficit. Impression muscular skeletal.". The Doctor came to the conclusion that the cause of the back pain was an exacerbation of a chronic problem or just inflammation of the muscles and ligaments in the lower back.</p><p>There is, of course, always the possibility that the notes of the visit to the Clinic and Hospital were recorded inaccurately, particularly as to the date of the visit but that required a mistake by both Dr Kousary and a nurse. Another possibility exists that when the Appellant saw Dr Kousary, he was reluctant to claim workers' compensation because he was still on probation and feared for his job at the Council. But that does not explain why the exact opposite of what the Appellant (witnessed by Mrs Johnston) alleges was told to Dr Kousary was recorded by Dr Kousary and I consider that it would be highly unlikely that a medical practitioner, whose initial function is to find out what happened for an accurate diagnosis, would have recorded the exact opposite. While Mrs Johnston was not very forthright about it, she eventually conceded in cross-examination that she had contacted Dr Kousary the week before this trial commenced, suggesting to him that the record was wrong. Her prevarication under cross-examination about that incident did not assist her credibility.</p><p>Dr Gillett records a history that on the night of the event, because of back pain, the Appellant attended a clinic at Cloncurry and because the Doctor was too busy, the Doctor did not see him on that night. That history might explain the alleged conflict in the dates if the Appellant and his wife went back next day to see Dr Kousary but that is not their evidence, nor is it Dr Kousary's. Dr Gillett's examination was on 27 October 2006 when it is entirely possible the Appellant was endeavouring to explain away the inconsistent accounts revealed by the WorkCover claim process.</p><p>Dr Kousary also made a notation that there was "no neurological deficit". That notation is inconsistent with the Appellant's claim that on 2 Apri 2004, the pain in his back was radiating down to his legs. Dr Kousary also told the Appellant to come back in 3 days if the back did not get any better. While the Appellant said that his back did not get any better, he did not go back until 22 April 2004.</p><p>In the Health Summary, Exhibit 18, which seems to have been completed on 3 April 2004, Mrs Johnston, in answer to the enquiry "significant health problems - past and current" recorded that in 1992, the Appellant suffered a "lumbar sprain never completely healing causing arthritis of spine lower back region", although the Appellant himself disagreed with that statement, saying he thought it had healed. </p><p>The Appellant took Monday 5 April 2004 off work but went to work on 6, 7 and 8 April 2004. The Easter holidays commenced on Good Friday, 9 April 2004. The Appellant and his wife drove to Brisbane to her mother-in-law's place at 2025 Gympie Road, Bald Hills. They were meant to go to a wedding in Perth but because of the back injury, the Appellant said he spent the whole time on the lounge, in pain. He was experiencing abdominal pain, and lower back pain, pain spearing down the legs. He was in Brisbane from 11 April 2004 to 19 April 2004, yet he did not visit his 4 long time medical practitioner, Dr Choong, whose practice was nearby at 2202B Gympie Road, Bald Hills, about the pain. The Appellant had been a patient of Dr Choong since April 2000. </p><p>He returned to Cloncurry arriving Wednesday 21 April 2004. He visited the Cloncurry Hospital on 22 April 2004 because the "pain played up pretty bad on that Wednesday night". Hospital notes record a right calf leg pain and leg swelling. There was no note of any back pain, yet the Appellant said that he was suffering severe back pain. He was referred to Mt Isa Base Hospital for an x-ray of the lumbar spine and Doppler studies of the right leg as there may have been blood clotting.</p><p>On 23 April 2004, the Appellant visited the Mt Isa Base Hospital where he was diagnosed with Deep Vein Thrombosis (DVT). The medical history records, inter alia, "Long term back problems". There was no reference to any work related injury. The Appellant explained this absence by saying that he believed that they got it wrong, yet there was obviously a history taken and the question arises whether it is likely that "they got it wrong". His back was still sore and he was suffering acute back pain so it is likely the condition would have been mentioned in the history, even though the DVT was of particular concern.</p><p>There is a note dated 24 April 2004 in the Cloncurry Hospital notes that the Appellant "is very anxious and concerned he may lose his job due to the clot". Nothing is recorded about the back problem.</p><p>The Appellant visited the Cloncurry Hospital on Monday 3 May 2004 (Labour Day Holiday) at 5.30 p.m. He complained of limping with a painful right leg, taking Panadol all weekend and lying down to cope with the pain. He later informed the note taker that he had been using machinery for 12 hours without a break that day and there is a notation that this information was contrary to the earlier statement he had made.</p><p>There is no doubt that a difficulty developed at work between the Appellant and Mr Wren, the Road Works Supervisor. The Appellant detailed an incident at Slatey Creek, sometime in April 2004 when he went back to work, where he endeavoured to climb into a roller he was operating. As he went to climb up, his right leg gave way and he collapsed to the ground. His right leg was numb. He told Mr Wren who said to him "I know what's wrong with your right leg, the left side of your brain is numb" to which a number of contractors in the vicinity broke out in laughter. The differences between Mr Wren and the Appellant eventually resulted in mediation at Mt Isa Court House about November 2004 resulting in the Appellant being placed in a separate team. Mr Wren's evidence was not that helpful due to his inability to remember. He conceded that that incident could have occurred but he did not remember it. He said he did not deny that it occurred. He made other concessions due to inability to remember. What he did remember was a conversation in early 2004 with the Appellant about the Appellant's sore back when Mr Wren sought to get an Incident Report form. (This may have been at the time the Appellant says he reported his injury to Mr Wren). He said the Appellant informed him that it was a recurring injury from his furniture removal business and had nothing to do with the Cloncurry Shire Council. While the relationship problems between Mr Wren and the Appellant have to be taken into account, the admission is not inconsistent with much of the other evidence in this case.</p><p>The Appellant visited the Princess Alexandra Hospital in Brisbane where he was admitted on 13 May 2004 and discharged on 18 May 2004. Mrs Johnston said that at the Hospital, Dr Moffrey was told in explicit detail how the injury occurred, that he was lifting a pump onto a truck, that it was a 3 stage lift, that it occurred during the swing at the third stage of the lift. Dr Moffrey gave evidence that he issued the workers' compensation certificate on 17 June 2004. He could not recall the event or the patient. He was an intern at the time with 4 months' experience. He referred to himself as a glorified secretary. He used to do the ward rounds with his consultant, Dr Williams, and his Registrar, Dr Gatehouse. He said he had no independent medical association with any patients at that time. The certificate he issued indicated he attended Mr Johnston on 17 June 2004 and it refers to "back pain and prolapsed disc" due to "lift at work". The certificate is inconsistent with the admission notes made by Dr Gatehouse. Dr Gatehouse recorded, on 14 May 2004, "3 weeks of right leg pain - operating machinery" and "felt pain 3 weeks ago". Dr Moffrey agreed that there was no reference to or history of low back pain nor any mention of a lift at work. He also referred to admission notes of Dr Nixon dated 13 May 2004 which recorded "pain and numbness in back of legs and groin, ongoing problems for approximately 5 to 6 weeks, originally diagnosed at ... to DVT in calf and thigh in lower leg". The period of hospitalisation was from 13 May 2004 to 18 May 2004 when the ward rounds were being done, a month before the issue of the certificate, so that it is entirely possible that the information "lift at work" came from the information provided to Dr Moffrey by Mrs Johnston and Mrs Johnston said that she asked for the certificate. The information was not provided to Dr Gatehouse, Dr Williams or Dr Nixon. </p><p>The first medical note making reference to an incident at work appears to be a note made by Dr Choong on 20 May 2004 which records "Increasing low back pain after lifting a water pump at work". Dr Choong's records show that on 20 August 2003 (a year before), there was an entry "Intermittent back pain for years - persistent back pain for 6 days radiating to R leg 2 days - 6 days of abdominal pain with nausea and vomiting which was cramping in nature - associated with loose bowels which was slightly better the day he came - bit of sore throat as well - 4 days of right eye twitch - neck pain for 2/3 days - feels depressed over his job prospects and back". It was the Doctor's opinion that as at 20 August 2003, the Appellant was then not suitable for heavy manual work and he should have been looking at some other job not involving heavy manual work. 5</p><p>Mrs Johnston said that it was during the hospitalisation that they discovered the acute nature of the injury and that there was only a 50/50 chance of survival of an operation. Advice that rest of up to 6 months was required and with a mortgage to pay may have prompted her to ask for the WorkCover certificate. It might also explain the inconsistency between the certificate and the Hospital notes.</p><p>Mrs Johnston faxed the certificate to the Cloncurry Shire Council. The yellow copy, dated 17 June 2004, is in evidence as Exhibit 2 and comprises a "fit to return on restricted duties" clearance. After it was faxed to the Council, Mrs Johnston telephoned and spoke to Shiralee McHardie, Payroll and HR Officer, to whom the document was sent and who, she said, acknowledged its receipt. The Council has denied it was ever received. Ms Welland has said that in the normal course of events, such a document should have been delivered to her if it had been sent, although she qualified the answer by saying if Shiralee appreciated what a Q-COMP medical certificate was. (Shiralee did not give evidence). Ms Welland said the first she saw of the certificate was when it was delivered on 12 May 2005.</p><p>There is an inconsistency in the Workers' Compensation Incident Report form completed 5 May 2005 which described the incident as the 2nd lift of a 3 stage lift. The document was completed by Mrs Johnston on the Appellant's instructions although the Appellant conceded it was clearly wrong. Mrs Johnston explained in cross-examination that the inconsistency arose because at that time she did not understand the 3 stage lift but that evidence is then inconsistent with what is alleged to have been told, in explicit terms, to Dr Moffrey and Dr Kousary in 2004.</p><p>It was August 2004, perhaps the 16th, when a "Proposed Suitable Duties Program" was being organised for the Appellant. This document which is signed by him, is Exhibit 3, and sets out suitable duties he could perform with his treating doctor's approval. The document is headed "Non Work Related Injury". Ms Welland says she was present when the document was signed by Mr Johnston. Mr and Mrs Johnston say she was not. Ms Welland gave evidence that she specifically asked Mr Johnston whether the injury was work related and he stated it was not. Mr and Mrs Johnston stated that they had a discussion about the words being on the form but it was decided to sign it. It was explained to Lloyd Snelling, the Overseer, that the injury happened on the job but Snelling told him that if he wanted a job he had to sign it. Ms Welland said she had to actually amend one of the forms usually used by Local Government Workcare to cater for the circumstances. While she lives and lived in the small community, she had no interest in the outcome of this case. It was not her money involved. Practically and probably, I am not prepared to reject her evidence as I must if the Appellant and his wife are to be believed. The signing of that document was inconsistent with a WorkCover claim or work injury. It is also unlikely that the Council Overseer would ignore a statement that it was a work injury. At the time the document was signed, the Appellant and Mrs Johnston were then aware of the acute nature of the injury making it more unlikely to represent it falsely as a non-work related injury. It also does not explain their claim that they thought a WorkCover claim had been lodged when the workers' compensation certificate was faxed to the Council in June.</p><p>There is another matter of some small significance which arises from the evidence of Mrs Johnston. On 18 November 2004 Mrs Johnston said there was a discussion with the Chief Executive Officer, Mr Page, and Mr Snelling about the WorkCover claim. Mrs Johnston had demanded to know what was happening with the claim. Mr Page is alleged to have said that it will take years and years and they would have to fly someone up from Brisbane. I do not believe that conversation occurred. It seems to be improbable.</p><p>It was suggested that the failure to appreciate that a WorkCover claim had not been lodged was due to the Appellant's illiteracy. It is alleged to have been the Appellant's belief that the claim was lodged when the Q-COMP certificate, Exhibit 2, was faxed to the Council although he also says in evidence that he believed a form like Exhibit 1 (the Application for Compensation) had been lodged. The basis for the Appellant's illiteracy was his own evidence, that of Mrs Johnston and his Year 9 education. Yet he ran his own furniture removal business for 6 years, employing 8 employees. He has negatively geared house units in Maryborough. He attended a TAFE college to study levels and plans. Without more, I would not have considered a Year 9 education to reflect illiteracy. But in any event, the Appellant had made a workers' compensation claim for a back injury in 1992 and Mrs Johnston was a university student. Moreover, it was Ms Welland's evidence, that on induction, she usually showed inductees a power point presentation which included details of how to claim for compensation and also handed out a workplace health and safety booklet. While she cannot remember this specific induction, the Appellant ticked a form, Exhibit 9, acknowledging Workers' Compensation/Rehabilitation had been a subject. He accepted he was told about safety but denied being told about workers' compensation, other than very briefly.</p><p>Prior to commencing work at the Cloncurry Shire Council, the Appellant said he went on an overseas visit for 5 weeks and returned at the end of 2003. He commenced work at the Council in March 2004 and twice claimed in evidence in chief, that he had no work between the time of returning from overseas and the Council job because he couldn't find any. He was then reminded in examination in chief that just before the Council job, he worked for a Mr Jennings, repairing fences damaged by floods. This work involved the driving of star pickets into the ground and included carrying the pickets. His offsider did most of the hammering. He resigned and in cross-examination, he explained that he resigned because of flooding, the job was not what he had signed up to do and that he refused to unload hay bales when asked. He explained that it was not the job he had applied for. He had made a statement to an investigator which 6 he himself altered to read "I was asked to unload hay bales. I declined and resigned". In evidence he then denied that he resigned because he was asked to unload hay bales. He was not very forthright when giving this evidence. The suggestion was made to him that he resigned because lifting hay bales put too much strain on his back which was already injured. That inference is open. </p><p>The Application for Compensation dated 27 June 2005 is also worthy of mention. To the question "Have you previously had a similar injury or condition?" the Appellant answered "No". He explained that answer by saying that it was not a similar injury to the 1992 workers' compensation claim. He said that this injury was a prolapsed disc injury, the other was a back strain and he drew a distinction between them. I have some reservations about the frankness of the answer. Dr Choong records that on 20 August 2003 he was told that there was persistent back pain, intermittent back pain for years and that he felt depressed over his job prospects and back. The Appellant was clear in evidence that prior to 2004, he had never had any difficulties with his back that he was aware of and he explained the visit to Dr Choong as related to "flu type viruses, fatigue and possibly arthritis". The answer does not explain the depression due to job prospects and back.</p><p>Mr Bourke gave evidence that in November 2004, at a time when the Appellant was on restricted duties, he observed him to lift a 50 - 60 kilo water pump off the tray of a Toyota Landcruiser utility and put it on the ground, then pick it up and place it back onto the tray, then again take it off and manoeuvre it through the door of a shed. He also gave evidence he observed him carrying a 6.5 metres long windsock pole, with plates welded top and bottom, weighing about 40 kilos, something he had reserved for a forklift. Mr Bourke's physique did not indicate an individual incapable of lifting heavy objects yet he said he was amazed that the Appellant had lifted the pump and he said he would not have tried doing it himself. Mr Johnston was cross-examined about Mr Bourke's evidence. He knew he was on restricted duties and was not to lift anything heavier than 5 kilos. He conceded that he lifted a 40 kilo pump off the tray and put it on the ground, justifying the manoeuvre as "like a semi-fall, using gravity". But he then agreed he picked it up again, put it back onto the utility and moved it to the shed. He denied ever lifting windsocks or steel pipes as described by Mr Bourke. Mr Bourke remembered much detail and impressed me as an independent witness, having only commenced with the Council on 6 October 2004. His evidence shows that the Appellant probably had a nonchalant attitude to his back and its condition. That attitude may well have been borne because of having to deal with his long- term back problems. The submission, that if the event of 2 April 2004 had occurred, the Appellant would be unlikely to be undertaking the tasks described by Mr Bourke, has merit.</p><p>Dr Coroneos interviewed and examined Mr Johnston on 15 September 2005. He had also been provided with a lengthy file of material containing medical reports and statements. Among other things, he took into account the inconsistency between the Appellant's version of the incident, partially supported by Mr O'Keefe and Dr Kousary's contemporaneous notes. His report found that on "gentle axial compression he reported moderate lower back pain" and "on gentle false pelvic rotation he reported back pain". He said the Appellant reported absent vibration sense left lower limb and present vibration sense right lower limb which was a nonorganic response to examination. Dr Coroneos concluded that the current clinical musculoskeletal and neurological examinations were marked by features of nonorganic inconsistency. The nonorganic responses to the examinations meant that the patient was trying to present a false representation of his symptoms or signs. He was unable to find any evidence for any workplace accident, injury or event with reference to the provided contemporaneous medical documentation and the history given of a diesel pump lifting injury 2 April 2004 contradicted by the contemporaneous Cloncurry Hospital records. He opined that the radiological changes in the lumbar spine were due to long-standing, pre-existing multilevel chronic degenerative disc disease.</p><p>Dr English first examined the Appellant on 20 September 2005 and opined that he would appear to have sustained a ruptured L3-4 disc with right L4 nerve root irritation in a lifting injury at work on 2 April 2004. The history provided to Dr English at that time was that the Appellant denied ongoing back problems between 1992 and 2004 which ignored the 2003 visit to Dr Choong. Dr English provided a further report on 19 January 2006 after viewing further material. He was made aware of Dr Choong's records of 20 August 2003 and Dr Kousary's Cloncurry Hospital notes. He wrote "After much deliberation, it would appear from the records reviewed that although Mr Johnston certainly has a significant back problem, there is no good evidence other than his recall of any specific event occurring on 2 April 2004. In fact, the evidence would appear to be against a work-related injury on or around this date". After viewing x- ray films taken on 21 August 2003, he reported on 12 April 2007 that they added "weight to the argument that Appellant had a pre-existing back condition to the point where he underwent radiological assessment; despite his denial of any pre-existing problems prior to 2 April 2004. They confirm pre-existing degenerative changes at least eight months prior to this event". He said that the documentation recording "no recent injury, no heavy lifting" was much more conclusive than anything he could gain a few years later.</p><p>Ultimately, I consider that there is a not improbable explanation for this conflicting evidence. That the Appellant had injured his back in the furniture removal business and had a history of long-standing back problems explains the history recorded by Dr Kousary and the lack of any relevant history at the Mt Isa Hospital and at the Princess Alexandra Hospital. The discovery of the acute nature of the condition at the time of hospitalisation may have motivated the request for the WorkCover certificate. The failure to lodge a WorkCover claim, the failure to provide the certificate to 7 the employer and the completion of the "Non Work Related Injury" document may have been due to a reluctance to make a claim for an injury which was not work related.</p><p>Furthermore, the discomfort exhibited by the Appellant as observed by Mr O'Keefe may have been another instance of activity causing pain and discomfort to his long-standing back condition. Mr O'Keefe only partially corroborated the Appellant, could not place a date upon the event other than a Monday or a Friday and the medical records indicate it was a Saturday, presumably a non-work day when the Appellant presented to the Doctor.</p><p>An "injury" includes an aggravation of an injury if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation - (s. 32(3)(b) of the Act). The onus of proof is on the Appellant. While that onus only has to be to the standard of the balance of probabilities, the tribunal of fact must feel an actual persuasion before those alleged facts can be found to exist. That the Appellant suffered an injury in the manner alleged by him is against the weight of the evidence. I am unable to conclude on the evidence that it is more probable than not, that the Appellant suffered an injury or an aggravation of an injury that arose out of or in the course of employment with the Cloncurry Shire Council or that the employment was a significant contributing factor to the injury or aggravation.</p><p>I confirm the decision of the respondent.</p><p>The appeal is dismissed.</p><p>B.J. BLADES, Commissioner. Appearances: Mr A. Tayler of Shine Lawyers for the Appellant. Hearing Details: Mr C. Clark instructed by Ms T. Smith of Q-COMP. 2007 19, 20, 21 February 12, 13, 20 April Released: 28 May 2007 8 May</p><p>Government Printer, Queensland The State of Queensland 2007.</p>