The Queensland Industrial Relations Commission (Commission) has refused the appeal of a worker seeking compensation for degenerative disc disease.
Ms Kaye Kirby (Appellant) underwent a spinal fusion to her L1 – L3 discs in 1991.
In about 2001, she started working for InvoCare Australia Pty Ltd (InvoCare) as a Funeral Manager. She told InvoCare about her pre-employment spinal surgery.
In 2010, she started to suffer back pain and in 2011, sciatica. The Appellant brought a common law claim for a back injury (injury) and a secondary psychiatric injury arising out of her employment with the InvoCare. Before the Appellant could proceed with her common law claim, she had to establish that she had an entitlement to compensation under the Workers’ Compensation and Rehabilitation Act 2003 (Qld).
The Appellant alleged that her injury arose out of her work over the period 2001 to 2012.
The duties the Appellant claimed contributed to her injury included:
- moving chairs
- carrying Neverfail water bottles
- vehicle maintenance
- coffin deliveries
- transfer of deceased persons
- transfer of caskets/coffins and pallbearing at funerals
The Appellant’s claim was rejected by the Workers’ Compensation Regulator (Regulator). She appealed the Regulator’s decision to the Commission.
The issue for determination by the Commission in the Appeal was whether the Appellant’s injury arose in the course of her employment.
The Appellant relied upon the evidence of Dr Gillett, Orthopaedic Surgeon, in support of her claim. Dr Gillett provided a report to the effect that work practices over a period of time in relation to manual lifting, particularly the lifting of coffins, would have placed stress and strain on the lower back and on the Appellant’s fusion. Dr Gillett said that even without the work of a funeral director, the Appellant’s would have had some increasing degeneration to her lumbar spine. However, he estimated her duties caused an acceleration in her degeneration of 5 years more than what would have occurred.
The Regulator relied upon the evidence of Associate Professor Peter Steadman, Orthopaedic Surgeon. Associate Professor Steadman was of the opinion that the Appellant was suffering from Adjacent Segment Disease (ASD) an almost inevitable consequence of her previous spinal fusion. Importantly, he was ‘unable to ascertain any specific work related event or contribution over a period of time that would indicate employment was the cause of her complaint in terms of the deterioration’. Although he accepted that if the Appellant was undertaking regular heavy lifting of the type described, this would have exacerbated her condition, as Dr Gillett opined.
Both experts agreed that ASD can be a consequence of a spinal fusion.
In a judgment delivered on 30 October 2015, Industrial Commissioner Fisher refused the appeal, finding:
- At times the Appellant was required to undertake lifting outside of safe manual handling limits, in lifting oversized coffins. However, the weight of loads borne by her was not satisfactorily established.
- The Appellant was symptom free until 2010. The development of her symptoms was not associated with any particular incident or work task.
- The onset of the Appellant’s symptoms was more consistent with the evidence of Dr Steadman.
- The Commission was unable to accept on the balance of probabilities that the Appellant’s employment was a significant contributing factor to her injury.
This case will be helpful for employers and claim managers who are defending manual handling cases. For those with similar claims, what’s most interesting about this case is that the Appellant was unsuccessful despite:
- the Commission accepting that she had undertaken lifting outside of safe manual handling limits.
- the employer giving the Appellant manual tasks with knowledge of her pre-employment spinal fusion.
Manual handling cases can be the most difficult types of workers’ compensation claims to defend. However, this decision highlights that workers may fail where they are unable to identify the precise work duties alleged to have caused their injury.