December 18, 2019
Is employment a significant contributing factor to an injury when the "event" alleged to have caused the injury is a period of inactivity while awaiting for, and recovering from, surgery for a different injury?
In Alborough v Workers’ Compensation Regulator  ICQ 20, the Industrial Court of Queensland had to decide whether employment was a significant contributing factor to an injury when the "event" alleged to have caused the injury (a back injury and psychiatric injury) was alleged to be a period of inactivity while awaiting for, and recovering from, surgery for a different work related injury (a hernia injury)
The Appellant worker (the worker) was employed by Woolworths.
In November 2014, the worker applied for compensation for a right side inguinal hernia said to have been sustained during the course of his employment. Woolworths (a self-insurer) accepted the claim and benefits were paid.
The worker then made another claim for compensation alleging a back injury said to have arisen from the period of inactivity while awaiting surgery for his hernia and while convalescing from that surgery. The self-insurer rejected that application. The worker sought a review of that decision by the Workers Compensation Regulator (the Regulator). The review was unsuccessful and the Regulator confirmed the self-insurers decision. The worker appealed against that decision by the Regulator to the Queensland Industrial Relations Commission (the Commission). The appeal was dismissed and the Regulators decision confirmed. This led to the appeal (the back appeal – the first appeal - C/2018/20) before Industrial Court of Queensland (the Court).
The self-insurer also rejected a claim for compensation for anxiety and depression following the surgery for the hernia. The worker sought a review of that decision by the Regulator. The review was unsuccessful and the Regulator confirmed the self-insurers decision. The worker appealed against that second decision by the Regulator to Commission. The appeal was dismissed and the Regulator’s decision confirmed. This led to the second appeal (the stress appeal – the second appeal - C/2018/21) before the Court.
As to the back appeal, the Commission had found:
(a) the inactivity due to the hernia and recovering from the hernia surgery probably tipped the scales in favour of the appellant having lower back pain, and [but also]
(b) there was a series of contributing factors to the pain and its onset and that each had a role, including the worker’s weight, aerobic pre-conditioning, smoking, psychiatric condition and a level of interactivity.” (at 10)
The Commission found that in these circumstances employment was not a significant contributing factor to the alleged back pain [alleged back injury].
The Appellant argued that this inactivity (as found by the Commission) was the “straw that broke the camel’s back” and that this was sufficiently connected with employment to have amounted to a “significant contributing factor to injury”.
The Court disagreed. The back appeal (the first appeal) was dismissed.
The Court put in this way:
“In this case, the [worker] has not demonstrated any error in the approach taken by the Vice President to the evidence before her. Her findings were consistent with the bulk of the accepted evidence and were not inconsistent with other findings that she had made. To say, as Associate Professor Williams said, that some particular event was the “straw that broke the camel’s back” does not, as the [worker] appears to suggest, elevate that particular event to being a significant contributing factor. That is just an example of the approach which I do not accept in this case.” (at 27)
It was common ground that the result in the back appeal (the first appeal) ) would dictate the result in the stress appeal (the second appeal). The stress appeal was also dismissed.
The decision can be found here.