Allan Clark v Q-COMP

Date of decision: 28 July 2009, I.M G Lee

Mr Fitzsimons of Counsel, instructed by ALC Lawyers for the appellant

Mr Stuart Sapsford of Counsel, directly instructed by Q-COMP

Key words – Technical teacher - 65 – Injury Type: physical – Appeal Outcome: appeal dismissed - Significant sections considered: –

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 Allan Clark (appellant) lodged an application for compensation with WorkCover Qld (Insurer) on 12 November 2008 for a lower back injury. He alleged that he sustained the injury over a period of time from constant lifting and carrying of student notes, a laptop and its associated equipment. He further alleged that he first experienced symptoms for this injury on 1 August 2007. The Appellant was employed as a Vocational Education Teacher by TAFE Queensland at the time of the alleged injury.

On 18 November 2008, the Insurer decided to reject the Claimant’s application for compensation on the basis that he did not sustain an ‘injury’ within the meaning of section 32 of the Act.

On 15 January 2009, the Appellant applied to Q-COMP for a review of the Insurer’s decision to reject his claim. Q-COMP subsequently confirmed the Insurer’s decision to reject the Appellant’s claim as the decision maker was not satisfied that the Appellant had sustained an injury which arose out of or in the course of his employment or that employment was a significant contributing factor to his injury.

The Appellant appealed Q-COMP’S decision to the Industrial Magistrate Court. He gave evidence that on 8 August 2007 he retrieved a box of teaching materials which weighed 32kgs. He stated that he pulled the box out from under his desk and felt a click or strain in his back. He then carried his box of materials to his class room.

The Appellant’s treating general practitioner Dr Ha gave evidence that on 9 August 2007, the Appellant consulted him to review results of tests performed regarding his supra ventricular tachycardia. Dr Ha stated that there were no recorded concerns or issues about the Appellant’s back.

The Appellant continued to consult Dr Ha on various occasions but did not mention the alleged incident at work. He then consulted Dr Ha on 12 November 2008 for completion of workers compensation paperwork.

Dr Langely orthopaedic surgeon was consulted by the Appellant on 20 February 2009. He provided a report which stated that the Appellant had suffered an injury to his lower back in a lifting accident at work on 8 August 2007. He conceded during cross examination that his opinion largely depended on what he was told by the Appellant. Magistrate Lee pointed out that Dr Langley did not have the benefit of seeing Dr Ha’s notes and all he had to go on was what was told by Mr Clark.

Magistrate Lee accepted Q-COMP’s submissions that the Appellant’s evidence was not reliable. Magistrate Lee stated that the Appellant’s failure to mention the alleged incident of 8 August 2007 to Dr Ha on 9 August 2007 to be most unusual and not convincing. Further, that the Appellant did not take time off work until 5 December 2008. His Honour stated that apart from the Appellant’s own evidence which he did not accept, there is no evidence linking the L3/4 stenosis to his employment. The Appeal was accordingly dismissed.