Case Background: Granato’s Workers’ Compensation Claim
The appellant was employed by Breezeway Australia Pty Ltd, working as a window frame assembler at the time of the alleged incident. The appellant contended that between 1 May 2016 and 7 July 2018, when he resigned from his position, he sustained a lower back injury, namely an exacerbation of degenerative changes to his back, as a consequence of his employment duties. These duties were said to include lifting of heavier frames either on his own, or with the assistance of colleagues. The frequency at which such lifting occurred was disputed as between the parties.
The appellant lodged an application pursuant to s 132A of the Workers’ Compensation and Rehabilitation Act 2003 (‘the Act’), which was rejected by WorkCover Queensland. This decision was affirmed by the Workers’ Compensation Regulator (‘the Regulator’) on 19 June 2020, with the Regulator concluding that the appellant’s degenerative condition to his lower back was not an ‘injury’ within the meaning of s 32 of the Act.
At hearing the Regulator maintained that any aggravation of pre-existing pathology did not arise out of the appellant’s employment, nor was his employment a significant contributing factor. It further submitted that whilst the appellant may have experienced back pain whilst working during the relevant period, the appellant’s “employment was merely the setting in which the pain occurred or the background to its occurrence”.
Issue
As identified by the Commission, for determination was: –
Whether the appellant suffered an aggravation of his degenerative spinal injury over the period 1 May 2016 to 7 July 2018 which arose out of, or in the course of, his employment for Breezeway Australia Pty Ltd; and
If yes, whether the appellant’s employment was a significant contributing factor in the aggravation of the appellant’s degenerative lower back condition.
Decision
The Commission found in favour of the respondent, dismissing the appeal.
The Commission heard evidence from Dr Perera, General Practitioner, who treated the appellant for back pain during the relevant period. Dr Perera opined that the appellant’s work duties had aggravated his back pain. This opinion was formed in sole reliance upon the appellant’s reporting that his pain improved when he was not working.
The appellant called Dr Don Todman, Neurologist, who opined that the heavy duties undertaken by the appellant at work were the main cause of his back pain, with these activities placing a strain on his back. Dr Todman also commented on the appellant’s disc protrusion pathology, opining that the numbness and referred pain experienced by the appellant was referrable to this pathology. He noted that it was not possible to determine from MRI reports when the protrusion had occurred, instead having to rely on the appellant’s reporting.
Dr Robert Labrom was called by the respondent. Dr Labrom opined that the appellant’s duties during the relevant may have contributed to the appellant’s pain, but that he was unsure whether they could accurately be described as a significant causative factor. In Dr Labrom’s view, whilst the appellant’s work activities may have resulted in temporary periods of exacerbation or discomfort, the condition was constitutional and not clearly related to the work activities.
The Commission opined that the appellant’s own evidence about the onset of pain and its connection with his work activities was not persuasive or reliable, noting that the appellant both struggled to articulate when or how his back pain arose and was also unwilling to acknowledge that he had suffered sciatica prior to the relevant period, despite clear evidence to the contrary.
In regard to the competition between the experts, the Commission considered Dr Labrom’s evidence to be more persuasive. Of significance to the Commission was Dr Labrom’s evidence that whilst the appellant’s back may have become painful at work, it had not caused any temporary or permanent pathology, as supported by the available radiology.
Having accepted Dr Labrom’s evidence, the Commission therefore concluded that any aggravation of the appellant’s degenerative lower back condition had not arisen out of or in the course of his employment.
This article was written by WILL DEICKE of Littles Lawyers. If you have any queries regarding the article, please contact via Free Claim Checker or email us.
