Mauro John Bernazza v Q-COMP

17 November 2009, I.M. P M Kluck

Mr Peter O’Neill of Counsel, instructed by Sciaccas Lawyers & Consultants for the appellant

Mr Stephen Gray of Counsel, directly instructed by Q-COMP

Key words – Wardsman - 60 – physical – Appeal dismissed: –

s32(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

Head Note

Mr Bernazza (Claimant) lodged an Application for compensation with the Insurer for a back injury alleged to have been sustained whilst pushing and pulling a faulty patient hoist. The Claimant alleged that he did not experience any pain until after his lunch break, when he went to pick up a pillow. At the time of the injury, the Claimant was employed as a patient services attendant.

The Insurer subsequently rejected the Claimant’s Application. The Insurer found that although the Claimant’s injury occurred during the course of his employment, his employment was not a significant contributing factor to the onset of his condition.

Q-COMP confirmed the Insurer’s decision at review. Similarly, Q-COMP was not satisfied that the Claimant’s employment was a significant contributing factor to the development of his injury, and that employment was a mere setting for his injury.

The Claimant appealed Q-COMP’s decision to the Industrial Magistrates Court. He gave evidence that his back was sore from the pushing and pulling of a hoist. The Claimant stated that it wasn’t until he was cleaning up a patient’s room and bent over to pick up a pillow that he felt excruciating pain.

Dr Campbell, Neurosurgeon gave evidence that the Claimant told him he was manoeuvring patients on a hoist with faulty wheels and after a break and upon resuming his duties, noted the sudden onset of pain. Dr Campbell also stated that the Claimant had suffered a soft tissue injury and when he cooled down, the full extent of the injury had presented itself.

Dr Parkington, Orthopaedic Surgeon stated that the Claimant told him that he experienced pain when he bent to pick up a pillow and that he blamed his symptoms on the hoist. However, Dr Parkington was of the view that there was no actual injury whilst doing this. Dr Parkington opined that the Claimant developed acute mechanical pain and all his symptoms are reproduced by any thoracic spinal movement.

IM Kluck preferred the evidence of Dr Parkington over that of Dr Campbell because of the undisputed evidence of degenerative back condition, the fact that Dr Parkington actually looked at the X-rays which the Magistrate considered gave him a better appreciation of the Claimant’s condition. His Honour found that the Claimant did not feel pain whilst pushing the hoist and that he only felt pain when he bent over to pick up a pillow. His Honour was not satisfied that the use of the hoist played any part in the Claimant’s pain.

IM Kluck stated that he was satisfied the Claimant had sustained an aggravation of his degenerative back condition. He was satisfied that the Claimant’s injury arose in the course of his employment because whatever the cause, his pain came on when he was cleaning up a deceased patient’s room. Both doctors did not think that the activity of bending over to pick up a pillow whilst cleaning up the room was a significant contributing factor. His Honour concluded that he was not satisfied that the Claimant’s employment, specifically the act of bending down to pick up a pillow, was a significant contributing factor to the aggravation of his degenerative back disease.