QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	
	Ziebarth v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 121	
PARTIES:	
	Ziebarth, Robert
(Appellant)

v

Simon Blackwood (Workers' Compensation Regulator)
(Respondent)
	
CASE NO:
	WC/2014/200	
PROCEEDING:
	Appeal against decision of Regulator	
DELIVERED ON:
	23 June 2015	
HEARING DATES: 
	10, 11 and 12 December 2014
	
MEMBER:
	Deputy President O'Connor	
ORDERS:
	1.	The appeal is upheld;
2.	The decision of the respondent dated 23 May 2014 is set aside;
3.	The Commission substitutes a new decision that the appellant's application for Compensation is one for acceptance; and
4.	The respondent is to pay the appellant's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.  
	
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF REGULATOR - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE - ARISING IN THE COURSE OF EMPLOYMENT - Where worker was injured answering his work telephone at home while on call - Whether worker's injury arose out of, or in the course of, employment - Where worker was engaged in an activity - Whether employer induced or encouraged worker to engage in that activity - Whether employment was a significant contributing factor to the injury - Appeal upheld.
	
CASES:	Workers' Compensation and Rehabilitation Act 2003, s 32

Campbell v Australian Leisure & Hospitality Group Pty Ltd & Anor [2015] ICQ 016
Chattin v WorkCover Queensland (1999) 161 QGIG 531
Comcare v PVYW [2013] HCA 41
Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100
Davidson v Blackwood [2014] ICQ 008
Goodman Fielder v WorkCover Queensland (2004) 175 QGIG 871
JBS Australia Pty Ltd and Q-Comp (C/2012/35)
Lee v Trans Pacific Industries Pty Ltd [2013] FCA 1322
Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519
Obstoj v Van de Loos Obstoj v Van de Loos (Unreported, Supreme Court of Queensland, Connolly J, 13 April 1987)
Poulsen v Q-COMP (C/2011/29)
Qantas Airways v Q-Comp (2009) 191 QGIG 115
WorkCover Queensland v BHP (Qld) Workers' Compensation Unit (2002) 170 QGIG 142	
	
APPEARANCES:	Mr M.D. Glen, Counsel instructed by Lehmann Featherstone Lawyers for the appellant.

Mr S.P. Gray, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator).	

Decision

[1]	This is an appeal by Robert Ziebarth ("the appellant") to the Queensland Industrial Relations Commission ("the Commission") against the decision of the Review Unit of the Workers' Compensation Regulator ("the respondent"), in a letter dated 23 May 2014, rejecting his application for compensation.  The appeal is made under the Workers' Compensation and Rehabilitation Act 2003 ("the Act").

[2]	The appellant was employed as Fleet Service Manager at the Tully Depot with Blenners Transport Pty Ltd ("the employer") in Cairns from 3 December 2012 to June 2013. 

[3]	The appellant claims that he suffered a work related injury to his lower back at or about 10.00 pm on 21 March 2013, as a result of slipping on wet tiles answering a work telephone.

[4]	It is accepted that:

(a)	the appellant was a 'worker' within the meaning of s 11 of the Act; and
(b)	the appellant suffered a personal injury, namely, a lower back injury.

Statutory provisions and onus of proof

[5]	The appeal has to be decided by reference to s 32 of the Act which, at the time material to the appellant's notice of claim for damages, relevantly provided:

"32	Meaning of injury

(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.
…

(3)	Injury includes the following -
(a)	a disease …
(b)	an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation -
(i) a personal injury;
(ii) a disease;
(iii) a medical condition if the condition becomes a personal injury or disease because of the aggravation;

…"

[6]	The statement of agreed facts dated 3 September 2014 provided that:

"1. 	At all material times Robert Ziebarth was a worker as defined by the Workers' Compensation and Rehabilitation Act 2003. 

2. 	It was a term of the worker's Contract of Employment with the employer that he work for at least 55 hours per week.

3. 	It was a term of the worker's Contract of Employment with the employer that he make himself available to work additional hours if required by the employer.

		4. 	It was a term of the worker's Contract of Employment with the employer that he make himself available to be on-call from time to time. 

5. 	The worker was supplied with a work telephone for the purpose of carrying out his employment duties, including those employment duties required of him whilst he was on call. 

6. 	At all material times the worker was in fact on-call. 

7. 	The worker rented premises owned by two (2) Directors of the employer Company.

8. 	The weekly rental amount paid by the worker to the employer was less than the market rent and this was an employment benefit provided pursuant to the Employment Contract. 

9. 	At all material times and pursuant to the terms of the Contract of Employment the worker was responsible for maintenance and repair issues associated with the employer's fleet of trucks."

[7]	The appellant told the Commission that he was at his Mission Beach home on Thursday, 21 March 2013.  At about 10.00 pm, the appellant went for a shower.  Whilst showering, the appellant heard his work mobile telephone ringing.  He knew it was his work mobile telephone because of its distinctive ring tone.  The mobile telephone was located on his bedside table.  He told the Commission:

"I moved out of the shower through the gap and into the glass and headed towards the door.  And then I fell forwards and caught myself.  My right hand caught the corner of the vanity and my left hand went over - like, caught myself on the toilet bowl.  I feel forwards, and I'm not sure if I've twisted when I fell or what.  All I know is that I fell and I caught myself."

[8]	The appellant said that he had been chastised on a number of occasions by his superior, Roger Blennerhassett for not answering his work mobile telephone.  He said that he treated the job as if it was his name of the side of the trucks.  He explained to the Commission that it was his obligation to answer the mobile telephone as soon as it rung, to ensure everything was happening, to keep the trucks on the road and to make sure everyone was safe.  When asked why he felt he needed to answer the work phone every time it rang the appellant said "Driver safety and the public safety.  If a truck's broken down in the middle of a road or on a blind corner or something, I don't want to be responsible for ‑ I want to do everything I can to make sure it's safe as soon as possible."

[9]	Around 4.00 am the following morning, the appellant woke in order to prepare to go to work and found that he had excruciating pain in his lower back radiating down his right leg.  He said that he felt "… like I was hooked up to an electric fence or an electric current, and every time I moved it was like earthing it out, letting the current flow through me."

[10]	The appellant said that he tried to get dressed for work was in absolute agony.  He attended at the depot of his employer but was unable to get out of the car because of the pain. 

[11]	The Commission was told that in addition to the lower back and leg pain, the appellant vividly said in evidence: "My right testicle felt like someone had a pair of pliers and was squeezing it.  And whatever I tried to do, I just couldn't, like, fix the problem or release the problem."  The appellant took some Panadeine Forte which he had obtained from his partner's mother to help relieve the pain.

[12]	Mid-afternoon on Friday 22 March 2013, the appellant travelled by plane to Brisbane.  The purpose of the visit was twofold: firstly, he proposed to travel to Casino in northern New South Wales to see friends; and secondly, he wished to visit the Blennerhassett's depot in Brisbane.  However, the pain was too severe and the trip to Casino was cancelled.

[13]	On the Saturday morning and again on Monday before flying home to Cairns, the appellant attended on Chiropractor, Mr Paul Douglas Knight.  Mr Knight told the Commission that after examining the appellant on 23 March 2013, he formed the view that the appellant was suffering from a right posterolateral disc protrusion of the L5/S1 discs.  Mr Knight provided the appellant with gentle treatment to his pelvis.  The appellant attended on Mr Knight again on Monday 25 March 2013.  His observation was that the symptoms had not improved and the appellant was still antalgic with severe pain down his right leg.

[14]	Mr Knight did not accept the view that if a particular event causes a disc protrusion there is necessarily going to be an immediate onset of pain.  It was Mr Knight's opinion that these types of injuries can evolve over a 24 or 48 hour period and are brought about by the extrusion of the nuclear material through cracks in the disc.  He explained that they can also occur as inflammatory products infiltrate the injured area, causing some pressure to the adjacent spinal nerve root.

[15]	On 28 March 2013, the appellant attended on Mr Phillip Boutle, a Chiropractor in Innisfail.  Mr Boutle said that the appellant presented with acute back spasms and leg pain in both legs and had a very limited range of movement.  The straight leg raise test was reduced bilaterally which indicated to him that the appellant was suffering from a disc injury mainly at the L4/5. 

[16]	The appellant attended on General Practitioner, Dr Andrew Korinihona, at the Gordonvale Medical Centre on 25 May 2013.  The appellant said that he had delayed attending a general practitioner because he believed that he could deal with the injury by going to the chiropractor.  Dr Korinihona said that he initially thought that the appellant had suffered a muscle sprain but as there was no improvement in his symptomology he formed the view that the injury may have been more serious than a muscle sprain.  Dr Korinihona recorded in the patient health summary that the appellant was suffering from "Chronic LBP".  The appellant was referred for a CT scan of the lumbar spine and saw Dr Korinihona on a number of subsequent occasions.  

[17]	On 5 September 2013, the appellant attended the Rankin Medical Centre in Innisfail.  He was examined by General Practitioner, Dr Diane Squarci, who diagnosed the appellant as suffering from a low back injury and referred him to Cairns Diagnostic Imaging for an MRI. 

[18]	Dr Squarci issued the appellant with Workers' Compensation Medical Certificates on 5 September 2013, 15 October 2013 and 2 January 2014.

[19]	After receiving the MRI report from Dr Danga-Christian on 9 September 2013, Dr Squarci referred the appellant to Dr Eric Guazzo, a Neurosurgeon in Townsville. 

[20]	It was Dr Squarci's opinion that the MRI did not disclose a significant amount of degeneration.  She did not accept the proposition put to her in cross-examination that it is normally a degenerate disc which will suffer a disc protrusion.  Dr Squarci expressed the opinion that a significant injury on a normal disc will cause it to protrude.  In cross-examination she said:

"All right.  And, Doctor, you agree, don't you, that the fact that there is a delayed onset of symptoms can also mean that this claimed slip isn't the cause of Mr Ziebarth's injury?--- No.

You disagree with that?--- I disagree with that.  Because, you know, we had, a couple of weeks ago, we had a - another gentleman hurt his back.  He went to work for a couple of days, it progressed, it got worse over time but, yeah, he still managed with a disc protrusion and it was not until the soft tissue injury that - soft tissue and swelling that occurred that he then had a significant back pain.  So it's not unlike - not unusual for them to have - to be okay at first before the pain starts."

[21]	Dr Guazzo gave evidence that he examined the appellant on 12 December 2013 following a referral from Dr Squarci.  In his written report prepared for WorkCover Queensland dated 12 December 2013, he expresses the opinion:

"The diagnosis is aggravation of pre-existing asymptomatic lumbar disc degeneration with a small L5-S1 disc protrusion."

	He went on to note:

"Lastly, you have asked me about the consistency of presentation taking into account that the history Mr. Ziebarth has related, it is consistent that the injury may have caused his back injury and caused the continuing pain since that time." 

[22]	In cross-examination, Dr Guazzo gave the following evidence:

"All right.  Now, if we accept that - sorry, if you accept that Mr Ziebarth's evidence in the Commission is that the symptoms he experienced - or he noted at - the following morning after the slip and fall event was that he had excruciating lower back pain and right leg pain every time he moved?--- Mmm.
He had spasms down the right leg and symptoms like an electric current down the right leg.  He described himself as being in extreme pain and in trouble.   And he's also referred to experiencing, during the course of the day, the Friday following the night in question, testicular pain.   

Would you agree that those symptoms are all consistent with the injury described on the MRI, that is the disc protrusion at L5/S1?--- The - as my report says that the disc protrusion – those symptoms are consistent with the right L5/S1 disc protrusion, yes.

All right.  And when he saw - when Mr Ziebarth saw Dr Knight, a chiropractor in Brisbane on the Saturday morning, recalling the incident happened on the Thursday night, he was noted to be significantly antalgic and in pain and having reduced reflex of S1 on the right.  So would you agree again that those findings are consistent with the disc protrusion?--- They're consistent, yes.

So are we pretty comfortable - or sorry are you pretty comfortable in concluding that Mr Ziebarth did suffer a disc protrusion on the night, sometime on the night on the 21st of March 2013?‑‑‑ Yes, the history suggests that."

[23]	Later in cross-examination, Dr Guazzo told the Commission:

"DEPUTY PRESIDENT:   Look, Doctor, I just need to get this clear in my mind.  It's the Deputy President speaking, I just?--- Yes.

		The history that you were given about the fall?--- Yes.

You understand that the history that your patient gave you and then you heard that the evidence was around about 4 am?--- Yep.

the following morning he developed the symptoms which were from - what I understand from what you're telling us - consistent with a disc protrusion?--- Correct.  That's correct, your Honour, the - the       

And if you take a step back?--- That is absolutely correct with - that's my opinion and the MRI suggested there's a disc protrusion on the right at L5/S1.
 
Okay?--- And that's consistent with the clinical symptoms.  As you'd note in the MRI report       

Yes?--- there was also a disc protrusion on the left at L4/5, but disc protrusions occur pretty commonly and they're asymptomatic.  But the disc protrusion evidence on the right at L5/S1 is consistent as the cause of the sciatic pain in the right leg.

Okay.  Okay.  So it's possible that the trauma of the fall itself caused the disc protrusion.  Because I think as you said in your evidence a little bit earlier that he was predisposed?--- Yeah.  And - and - and I - and I certainly have stated that in my report, your Honour.

Yes?--- That it may have been the cause.  But the point I was trying to make is that I can't definitely say that the disc protrusion occurred between this time of the fall and when he woke with the pain.  Because as the – the barrister was saying to – Mr Gray was saying that he had no symptoms immediately thereafter, so I can't say that it occurred between those times.  If we were going to say that some event occurred that caused this disc protrusion and you could be asymptomatic for a while, it could have happened before that slip.  But I can't say certainly       

Yeah?--- it's unlikely, but I can't say it definitely occurred between those two times.

		Yeah?--- That was my point 

But the – yes, I understand that.  And – but the fall itself was - is a trauma that would potentially cause the disc protrusion?--- It - yeah, that's what I said it may have caused the back disc protrusion, yes, that's - that's been       

		Now?--- my position all along …"       

[24]	Dr Guazzo noted in his report that the CT scan of the appellant's lumbar spine on 27 May 2013 did not show any significant abnormality.  The MRI of 9 September 2013 showed a mild degree of pre-existing L5-S1 disc degeneration and a small central and right sided disk protrusion. 

[25]	In the report of Spine Surgeon, Dr Emery dated 29 January 2014, he expresses the opinion that:

"Looking at the latest MRI there is an obvious disc protrusion at the L5/S1 level on the right side impacting the right S1 nerve root.  There is an early degeneration to the L4/L5 disc but otherwise his spine is pretty consistent with his age group.  I think based on his clinical information, examinations and the MRI this is consistent and highly likely as a result of the injury described in March 2013."

	Analysis

[26]	The onus rests on the appellant to establish, in accordance with the requisite standard of proof, that the appellant's back injury arose out of, or in the course of, employment and employment was a significant contributing factor.
Did the injury arise out of or in the course of the appellant's employment?

[27]	In Campbell v Australian Leisure & Hospitality Group Pty Ltd & Anor, Martin P wrote:

"The concepts contained within the Act relating to whether or not an injury arises out of or in the course of employment and whether or not employment is a significant contributing factor have been considered in a number of cases which deal with those concepts contained in similar but not identical legislation. The manner in which an injury which occurs during an interval which itself occurs within an overall period of work was considered in Hatzimanolis v ANI Corporation Limited. That decision was comprehensively examined in Comcare v PVYW. 

For the purposes of this appeal the following principles enunciated in PVYW are relevant:

(a)	For an injury to be in the course of employment, the employee must be doing the very thing that the employer encouraged the employee to do, when the injury occurs.
(b)	Where the circumstances of the injury involve the employee engaging in an activity, the question will be whether the employer induced or encouraged the employee to do so.
(c)	Where an activity was engaged in at the time of the injury, the relevant question is not whether the employer induced or encouraged the employee to be at a place. 
(d)	An employer is not liable for an injury which occurs when an employee undertakes a particular activity, if the employer has not in any way encouraged the employee to undertake that activity, but has merely required the employee to be present at the place where the activity is undertaken. 
(e)	There is no justification for taking a “wide view” of an employer's liability in circumstances where the employer could be seen to have encouraged the employee to be at a particular place."

[28]	In Comcare v PVYW, the High Court gave consideration to the proper application of the Hatzimanolis principle. At [38], French CJ, Hayne, Crennan and Kiefel JJ observed:

"The starting point in applying what was said in Hatzimanolis, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not while engaged in actual work.  The next enquiry is what the employee was doing when injured.  For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred.  The essential enquiry is then: how was the injury brought about?  In some cases, the injury will have occurred at and by reference to the place.  More commonly, it will have occurred while the employee was engaged in an activity.  It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant.  When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity?  When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there?  If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment."

[29]	Comcare v PVYW was applied in Lee v Trans Pacific Industries Pty Ltd.  In that case, Wayne Lee was returning home after attending a medical appointment with an orthopaedic surgeon at Port Hedland, in relation to a previous work related injury.  He stopped at the Auski Roadhouse for a toilet break.  On his way to the toilet, he slipped on a pool of liquid and injured his right ankle.  After some attention was given to Mr Lee's ankle injury at the roadhouse, he resumed his journey and returned to his home in Newman that night.  Transpacific accepted that Lee had suffered an injury but claimed that it was not compensable as it was not an injury arising out of, or in the course of his employment with Transpacific.

[30]	Siopis J found that:

		"45.	The first condition in the PVYW test is satisfied because the injury occurred whilst Mr Lee was not engaged in actual work when he sustained his ankle injury at the Auski Roadhouse.
		46.	The second question in the application of the PVYW test is: what was the employee doing when injured? There is no dispute that, having stopped at the Auski Roadhouse, Mr Lee was walking on the forecourt on his way to the toilet.
		47.	The next question (described by the majority as 'the essential enquiry') is how the injury was brought about: was it by reference to a place, or by reason of the employee being engaged in an activity?  The question then is, whether the employer induced or encouraged the employee to be at that place or to engage in the activity.
48.	First, as to the activity in which Mr Lee was engaged when the injury occurred, namely, taking a toilet break in the course of a long road trip, that activity was plainly within the scope of the activity which the Tribunal found that the employer had encouraged or induced Mr Lee to undertake. On that basis alone, the inevitable result of the application of the test in PVYW is that Mr Lee's injury occurred in the course of his employment with Transpacific.
49.	Secondly, in applying the PVYW test in the context of the circumstances of the injury and the place at which the injury occurred, the result is the same. It follows from the Tribunal's finding that the employer encouraged or induced Mr Lee to undertake the road trip to Port Hedland, that the employer encouraged or induced Mr Lee to be at the Auski Roadhouse for the purpose of taking a toilet break, as an incident of undertaking that long road trip.  On the facts found by the Tribunal, the injury occurred by reason of the presence of a liquid on the forecourt at the place at which Mr Lee was encouraged or induced by his employer to be.  The injury, thus, occurred by 'reference to the place', namely, the slippery surface of the forecourt of the Auski Roadhouse, at which his employer had encouraged or induced him to be.  On the application of the PVYW test, therefore, Mr Lee's injury would also, on this basis, be found to be within the course of his employment with Transpacific."

[31]	For the purposes of this appeal, the relevant test as set out in Comcare v PVYW is in two parts:

(a)	What was the activity being engaged in at the time of the injury? and
(b)	Did the employer induce or encourage the employee to engage in that activity?

[32]	In addressing the first part, the activity to be considered is the answering of the work mobile telephone.  It is not, as submitted by the regulator, the running.  As was noted in paragraph [7] above, the evidence of the appellant was that he moved out of the shower through the gap and into the glass and headed towards the door before falling forward.  He was anxious to answer the phone before it went to message bank and he was hurrying to do so.  But the evidence was not that he was running at the time the injury occurred.

[33]	In applying the second part of the test as set out in Comcare v PVYW, the question to be considered is: did the appellant's employer induce or encourage him to engage in that activity that he did, namely, to answer the work mobile telephone? 

[34]	It is accepted between the parties, as set-out in the Statement of Agreed Facts, that it was a term of the appellant's Contract of Employment with his employer that he make himself available to be on call from time to time; that he was supplied with a work telephone for the purpose of carrying out his employment duties, including those employment duties required of him whilst he was on call; and at all material times the appellant was in fact on-call.

[35]	There is little doubt in my mind that on the evidence before the Commission, the appellant was induced or encouraged to engage in the activity that he did.  As is set out in paragraph [34], it was an activity within the scope of what his employer induced or encouraged him to engage.  Having answered the question in the affirmative, it must therefore follow that the injury sustained by the appellant has occurred in the course of his employment.

	Employment 'a significant contributing factor to the injury'

[36]	In Chattin v WorkCover Queensland, Williams P adopted the reasoning of Connolly J in Obstoj v Van de Loos where his Honour said:

"The function of a court of law in a situation such as this is to determine whether, for whatever reason, it is more probably than not that there is a causal relationship between the accident and the plaintiff's post-accident condition."

[37]	In Newberry v Suncorp Metway Insurance Ltd, Keane JA, with whom de Jersey CJ and Muir J agreed, said:

"The requirement of s 32 of the WCRA that the employment significantly contribute to the injury is apt to require that the exigencies of the employment must contribute in some significant way to the occurrence of the injury which the claimant asserts was caused by the breach of duty of the person (not the employer) against whom the claim is made."

[38]	His Honour later observed:

"[T]he fact that an injury has been suffered arising out of employment, or in the course of employment, is not sufficient to establish that the employment has been a 'significant contributing factor to the injury'.  To read s 32 of the WCRA in that way would be to read the latter words out of the section, and in my respectful opinion to accord scant respect to the evident intention of the legislature to require a more substantial connection between employment and injury than is required by the phrases 'arising out of employment' or 'in the course of employment'.

Further, there is no warrant in the language of s 32 of the WCRA for reading the words 'if the employment is a significant contributing factor to the injury' as lessening the stringency of the requirement that the injury 'arise out of the employment', as was suggested in the course of argument on the appeal.  It is clear, as a matter of language, that the words 'if the employment is a significant contributing factor to the injury' are intended to be a requirement of connection between employment and injury additional to each of the requirements that the injury occur in the course of employment or arising out of employment.  It cannot, in my respectful opinion, sensibly be read as lessening the stringency of the latter or increasing the stringency of the former."

[39]	It is not sufficient to establish a mere temporal relationship between an injury and being at work to satisfy the requirement under s 32 of the Act of arising out of, or in the course of, employment.

[40]	As was observed by de Jersey P ( as he then was) in Croning v Workers' Compensation Board of Queensland, the employment needs to be the "real effective cause". Whilst there may be a number of contributing factors causing the appellant's back pain, for the purposes of s 32(1), the Act speaks of employment being a significant contributing factor to the injury.  Significant is used in the sense of "important" or "of consequence".

[41]	In Poulsen v Q-COMP Hall P wrote:

"If s. 32(1) of the Act did no more than recite the traditional formula 'arising out of or in the course of the employment', the Appellant would have had a case.  However, the Legislature has added a further requirement, viz., that the employment be a significant contributing factor to the injury.  An applicant must now show a further element of causation. Further, whatever the precise content of 'significant', it is apparent from the phrase 'a significant contributing factor' that mere satisfaction that some element of contribution (minor was the adjective used by the Acting Industrial Magistrate) occurred is insufficient. Here, on the evidence, the Appellant established the type of case made out in Pleming v Workers' Compensation Board of Queensland.  The Appellant failed to demonstrate that the contribution of the employment was of any significance whatever compared to the dominant contributing factor, viz., the Appellant's underlying condition." 

[42]	In JBS Australia Pty Ltd and Q-Comp, Hall P wrote:

"I should say to begin with that, I accept that the employment must significantly contribute to the occurrence of the injury.  It is insufficient to establish that the employment was the setting in which the aggravation occurred or the background to its occurrence, compare Croning v Workers' Compensation Board of Queensland, at 101 per de Jersey P.  It must be shown to be more probable than note that there is a significant causal relationship between the accident and the workers' post-accident condition."

[43]	Whilst the respondent does not contest that the medical evidence supports a conclusion that the appellant suffered a personal injury, it does contest the proposition that the personal injury is one which falls within the definition of injury in s 32 of the Act.

[44]	I accept the evidence of Dr Squarci and Dr Emery.  I also accept the chiropratic evidence of Mr Knight and Mr Boutle.  Whilst Dr Guazzo accepts that the trauma of the fall could have caused the disc protrusion, the delay in the onset of symptoms was, in his view, unusual.   Dr Guazzo agreed that the symptoms complained of by the appellant were all consistent with the injury identified in the MRI, namely a disc protrusion at L5/S1.  Importantly, Dr Guazzo was willing to accept that it was most likely the disc prolapse occurred in the timeframe between 10.00 pm and 4.00 am the following morning.  Finally, Dr Guazzo agreed that the trauma of the incident on 21 March 2013 would potentially have caused the disc protrusion.

[45]	Whilst the expert medical evidence is important and indeed may in some circumstances be conclusive, it is ultimately "for the tribunal of fact to determine, on the basis of the evidence put before the Commission, whether or not the appellant's fall was a substantial contributing factor to his subsequent personal injury.  It was for the expert witnesses to illuminate, to the extent of their knowledge and expertise, the cause (or causes) of the appellant's back condition."

[46]	The preponderance of medical evidence supports, in my view, the conclusion that the trauma of the fall on 21 March 2013 caused the appellant's disc protrusion on the right at L5/S1.

[47]	I am satisfied on the evidence before the Commission that the appellant has established a causal relationship between his employment and his disc prolapse.  The proximity of time between the fall in the bathroom and the onset of the pain, in the absence of any competing causal incident leads me to conclude, on the balance of probabilities, that the appellant's employment was a significant contributing factor to his injury.

[48]	I am therefore of the view that the appellant suffered an injury within the meaning of s 32 of the Act.

	Orders

[49]	I make the following orders:

		1.  	The appeal is upheld;
		2.	The decision of the respondent dated 23 May 2014 is set aside;
		3.	The Commission substitutes a new decision that the appellant's application for Compensation is one for acceptance; and
		4.  	The respondent is to pay the appellant's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.