Courtney Leigh Town v Q-COMP (WC/2011/153)

The decision of Town v Q-COMP (WC/2011/153) involved an appeal by a worker in relation to the decision of Q-Comp that she did not suffer an ‘injury’ for the purposes of the Workers Compensation and Rehabilitation Act 2003 (Qld) (the Act).

The primary focus of the appeal was whether the worker’s employment with the Employer was a significant contributing factor. Q-Comp and the Employer argued that the worker failed to discharge the evidential onus upon her that her employment with the Employer caused the back condition alleged. The Employer and Q-Comp highlighted the worker’s need to undertake domestic and maternal lifting at her home.

In 2008 the worker undertook 10 – 15 hours of employment per week at the Employer’s store performing night fill duties. At that time the process of night fill involved unloading boxes from cages which were about two metres high and one metre wide. The cages were brought from the back dock to the shop floor and employees were assigned an aisle to fill. The worker carried the boxes to the relevant part of the aisle. She was assigned to the biscuit aisle which also contained long life milk, tea and coffee. The worker alleged that she injured her lower back by repetitive lifting and was on workers’ compensation benefits for about eight weeks.

On her return to work the worker was allocated light duties for three weeks and then assigned to a lighter aisle where she remained until her transfer to another store in March 2009. She worked in a lighter aisle, the health and beauty aisle, which involved the stacking of shelves with products that were able to be placed and stacked from a shopping trolley.

The work system changed in about December 2009 and the worker alleged that at this time the work became much heavier because pallets needed to be unloaded from the end of an aisle and consequently her back pain intensified. The worker contended that her back pain intensified to the point that she suffered a disc prolapse.

There was a dispute in the medical evidence between Dr Albietz, Orthopaedic Surgeon and Dr Day, Orthopaedic Surgeon. Dr Albietz was of the view that the worker’s work of up to 10 hours per week could have been a significant contributing factor to her injury. This opinion was rejected by the Commission. The Commission relevantly found:

Despite Dr Albietz’s opinion that even working as few as ten hours per week was a significant contribution to the injury, I am not so persuaded. I think it is as Dr Day expressed, that is, the link becomes more tenuous. The meaning of ‘significant’ was considered by Hall P in Qantas Airways Limited v Q-Comp and Michelle Blanch (2009) 191 QGIG 115.

Given that Ms Town experienced lower back pain in the performance of her household duties and playing with her children and the proportionate amount time spent on these activities when compared with work, the conclusion seems inevitable that the household and family responsibilities were a significant contributing factor to the injury.

The contribution of employment to the injury or aggravation is uncertain. The evidence of both Dr Albietz and Dr Day is that the emphasis of work being a contributory factor is reduced by the fewer the number of hours worked. I have previously considered and rejected the arguments concerning the contribution of repetitive heavy lifting and repetitive lifting. In light of this and absent the evidence about the link between employment and the pain as outlined in [53] above, the Commission is not contributing factor.

Finally, it is important to reference the comment to Dr Albietz recorded in the notes of the discussions held on 17 April 2012 that Ms Town had degeneration of the discs at L4/5 and L5/S1. This degeneration is common and the usual course of the degeneration of the type seen in Ms Town is to progress to disc prolapse. It is possible that this is what happened with Ms Town.

(See Decision of the Commission at page 7).

The Commission was not satisfied that the Worker’s condition met the definition of an injury for the purposes of section 32(1) of the Act. Accordingly, the Commission considered it unnecessary to determine whether the injury or aggravation arose out of, or in the course of, employment and whether the condition was a further aggravation of any earlier injury in 2008 or at all.

A copy of the Judgment can be found here.