QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Barra-Padilla v Workers' Compensation Regulator [2022] QIRC 330

PARTIES:	
	Barra-Padilla, Rodrigo Alex 
(Appellant)

v

Workers' Compensation Regulator
(Respondent)
	
CASE NO:
	WC/2019/109
	
PROCEEDING:
	Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:
	24 August 2022
	
HEARING DATES: 

DATES OF WRITTEN
SUBMISSIONS:
	25, 26 and 27 October 2021

Respondent submissions, 28 February 2022

Appellant submissions, 25 March 2022

Respondent's submissions in reply, 8 April 2022
	
MEMBER:

HEARD AT:	Pidgeon IC

Brisbane

ORDERS:
	1.	The appeal is dismissed.

2.	Failing agreement between the parties, a decision on costs will be subject of a further application to the Commission.
	
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – Appeal against review decision of the Respondent – Where the Appellant has a physical injury – whether the injury arose out of, or in the course of, his employment – where Respondent contends that employment was not a significant contributing factor to the injury – appeal dismissed.
	
LEGISLATION:
	Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32
	
CASES:	Fernandez v Tubemakers of Australia Limited [1975] 2 NSWLR 190
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NWSLR 705

Qantas Airways Ltd v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 82

Seltsam Pty Ltd v McGuinness [2000] NSWCA 29; (2000) 49 NSWLR 262

Simon Blackwood (Workers' Compensation Regulator) v Mana [2014] ICQ 27

APPEARANCES:	
Mr M J Smith of counsel, instructed by Parker Simmonds Solicitors for the Appellant.

Mr S P Gray of counsel, directly instructed by the Respondent.
	
Reasons for Decision
	
	Introduction 

[1]	Mr Rodrigo Alex Barra-Padilla commenced employment with ISS Facilities Service Australia Limited (ISS) in February 2016 and performed cleaning duties at the Griffith University Gold Coast Campus (Griffith University).  

[2]	It is not in dispute that Mr Barra-Padilla is a 'worker' within the meaning of the Workers Compensation and Rehabilitation Act (the Act).

[3]	Mr Barra-Padilla made a workers' compensation claim relating to pain to both hips, the left elbow and the left shoulder.  This claim was rejected and it is as a result of that decision that Mr Barra-Padilla filed this appeal.

[4]	Mr Barra-Padilla's claim relates to injuries he says he sustained as a result of duties he was performing from about July 2018 in buildings G25 and G26 at Griffith University.

[5]	The Respondent accepts that Mr Barra-Padilla developed pain in the left elbow, shoulder and hip over a period of time prior to 24 October 2018.  

[6]	Mr Barra-Padilla says that the pain he developed in his left elbow, shoulder and hip resulted from repetitive duties he performed for his employer.

[7]	Mr Barra-Padilla has described the onset of symptoms related to his diagnosed injuries as occurring whilst undertaking his employment duties, and also at home.  The Respondent accepts that Mr Barra-Padilla's symptoms have occurred during the course of his employment with ISS.

[8]	The issue to be determined in this appeal is whether Mr Barra-Padilla's employment is a significant contributing factor to the diagnosed injuries. 

[9]	The onus is on Mr Barra-Padilla to prove that he has suffered an injury in accordance with the provisions of The Act.

Legislation

[10]	The relevant part of the legislation is set out below:

32 Meaning of injury

(1)	An injury is personal injury arising out of, or in the course of, employment if—

(a)	for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or
…

(3) 	Injury includes the following–
…
(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 other than a psychiatric or psychological disorder;
			(ii) 	a disease;
(iii) 	a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation.

	Mr Barra-Padilla's role and duties

[11]	As discussed above, this claim relates to work Mr Barra-Padilla was undertaking when he worked in buildings G25 and G26.  

[12]	Mr Michael Parada was Mr Barra-Padilla's site supervisor during the relevant period and is now Operations Manager for ISS Facilities Services. Mr Parada's evidence was that buildings G25 and G26 were 'VIP buildings'.  Mr Parada said that G26 was a building where a lot of research happens and G25 is linked to G26 because when VIPs visit, they also visit G25. Mr Parada described G25 and G26 as being cleaner than other buildings on campus where students spend more time.

[13]	Mr Barra-Padilla says that he worked from 5.30pm to 12.30am.

[14]	It is agreed that Mr Barra-Padilla's duties whilst working for the employer included:

(a)	Using a backpack vacuum;
(b)	Cleaning multiple bathrooms by mopping and the like;
(c)	Dusting;
(d)	Collecting garbage;
(e)	Emptying garbage bins.

[15]	There is some debate as to the exact nature and extent of Mr Barra-Padilla's duties, including how arduous the work was.

[16]	Mr Barra-Padilla gave evidence that his work involved cleaning bathrooms, mopping, vacuuming, picking up bins and emptying trash and rubbish.  Mr Barra-Padilla's evidence was that he would undertake the different duties required on a particular floor of the building before moving to the next floor.

	Cleaning of bathrooms

[17]	Exhibit 7, a map of building G26, was shown to Mr Barra-Padilla. There were areas on the map highlighted in pink.  When Mr Barra-Padilla was asked if he only had to clean those areas on a weekly basis, he disagreed.  Mr Barra-Padilla agreed that the areas highlighted in blue were toilets which required cleaning.

[18]	Mr Barra-Padilla described the bathrooms he cleaned and said that the toilets and urinals were cleaned on a daily basis.

[19]	Mr Barra-Padilla said that the bathrooms he was required to clean had, on average, between 4 and 5 toilets in them and that cleaning a bathroom took between 15 to 20 minutes.  Mr Barra-Padilla described cleaning the bathrooms in the following way:

Sometimes you have to vacuum them.  There was a lot of lint or hair you had to vacuum of course. Clean the toilets inside, the walls – the side walls inside the cubicles.  I had to bend down to clean the inside of the toilets, and also clean behind the toilets; that was on the actual toilet walls but there was the men's urinals.  We needed to bend down to clean the borders, the sides, and also inside the urinals as well. You had to do that every day.

Vacuuming and mopping

[20]	Mr Barra-Padilla said that his work involved extensive dusting and a lot of vacuuming and that this vacuuming took significant periods of time.  He said that when working fast, vacuuming may take 1 hour and 45 minutes to 2 hours.  Mr Barra-Padilla said 'you can't really take it easy, you have to do it very quickly'.

[21]	As well as vacuuming, Mr Barra-Padilla said that he had to mop the bathrooms and kitchens every day.

[22]	Mr Barra-Padilla was taken to some floor plans of the two buildings, G25 and G26.  The floor plans indicated some areas which were marked in black and did not require cleaning.  Areas marked in green were open areas or stairwells.  Mr Barra-Padilla said that stairs were vacuumed whether they were carpeted or not. 

[23]	Mr Barra-Padilla was asked if the areas on the map highlighted in light red were laboratories which involved weekly sweeping and mopping of the floors.  Mr Barra-Padilla said that was the case in some areas but that there would occasionally be internal memos circulated asking for additional or specific cleaning to be done.  Mr Barra-Padilla agreed that if there was extra work required outside of his normal cleaning routine, he could ask for assistance from his supervisor.

	Mr Barra-Padilla used a janitor's trolley and a waste removal trolley

[24]	Mr Barra-Padilla was asked if he used a janitor's trolley when he worked in buildings G25 and G26.  Mr Barra-Padilla agreed that he used a trolley. The evidence was that Mr Barra-Padilla would move through each floor of the building completing the vacuuming followed by other work such as mopping.  Mr Barra-Padilla identified the trolley in two photos, but said that the items on the trolley in the photo were 'badly placed because you can't put the vacuum cleaner on top of the wet bucket, and also you can't put the vacuum cleaner beside the wet mop'. Mr Barra-Padilla agreed that the purpose of the trolley was to transport the vacuum cleaner and the mop and explained that there is a bracket on the trolley for the mop to go onto.

[25]	Mr Barra-Padilla was asked about another trolley he was given to put the waste bags into. Mr Barra-Padilla said the trolley would regularly be helpful, however it was constantly breaking down because the bags were too heavy and 'the legs would open up'.  Mr Barra-Padilla said that he was 'constantly trying to tie them up so it wouldn't come apart' and that it would be perfect for waste paper basket rubbish but not for bags of heavy weight.

[26]	With reference to the waste trolley, Mr Parada said that the trolley was used to transport any waste rubbish from the bins themselves to the master skips at the loading zones where they are located.  Mr Parada could not recall Mr Barra-Padilla speaking to him about problems with the trolley.

	Waste to be collected by Mr Barra-Padilla

[27]	Mr Barra-Padilla described the work involved in collecting garbage from the buildings and emptying it into the large bins outside. Mr Barra-Padilla said that the bins in the kitchen held leftover food and so they would become very heavy.

[28]	Mr Barra-Padilla said he also emptied the office bins and said that each office had a bin for recycling and a bin for general waste. Mr Barra-Padilla said that bins with magazines, paper and boxes in them would also become very heavy. 

[29]	The map of building G25 showed that the only floor in that building with a kitchen or common eating areas was level two.  Mr Barra-Padilla was asked about the bins in the kitchen on level 5 in G26.  Mr Barra-Padilla agreed that the bins were of 60 litres capacity and said that they had bin liners in them which he would tie up and pull out of the bin.  Mr Barra-Padilla said that 'you had to really brace yourself, because they were very heavy.  Sometimes you couldn't tie them up to close them because they were overfilled'.  Mr Barra-Padilla said that sometimes rubbish had fallen onto the floor and that he had to bend down and pick it up and put it into a separate bin liner.  Mr Parada said that he had not observed the red bins overflowing and that Mr Barra-Padilla had not described such a situation to him.

[30]	Mr Parada said that he thought that the bags Mr Barra-Padilla lifted would hold about five or six kilograms of rubbish and that he thought that a description of the bags weighing about 15 to 20 kilograms 'sounds really excessive'.   When asked why he thought that it sounded excessive, Mr Parada said 'that would be quite heavy for just – for the kind of rubbish we find in that building'.

[31]	Mr Parada said that there were regular monthly toolbox talks held where employees were regularly told that if they found something too heavy to lift, they needed to call a team leader who would 'come and assess and find the best means to move that rubbish'.

	Taking waste to the large outdoor bins

[32]	Mr Barra-Padilla described bringing the rubbish bags from the building down a pathway to the large outdoor bins. He would dump the bags into a bigger bin. He said it was 'quite an effort' to lift the bags of rubbish into the big bin every day and that dealing with the rubbish would take 'maybe half an hour, 20, 30 minutes'.

[33]	Mr Barra-Padilla agreed that he would take the garbage bags in a trolley down to the big rubbish bins via the lift.  He described the lid on the large bins outside as being made from 'a very heavy plastic'.  Mr Barra-Padilla agreed that he would have to raise the lid of the bin, put the bracket seen in Exhibit 1 in place to keep the lid up, and then throw the bag of rubbish into the bin.

[34]	Mr Barra-Padilla described the lid on the large external bins as 'very heavy'.  However, Mr Parada said that he did not know how heavy the lids on the large external bins were but that he assumed they were anywhere between one and three kilograms.  Mr Parada based that estimation on having lifted the lids himself many times.  Mr Parada said that he did not find the lids heavy and that he had not received any complaints or concerns from anyone else.

[35]	Mr Parada said that the conversation about the bin lids came up after Mr Barra-Padilla had complained about his elbow.  Mr Parada recalled that when Mr Barra-Padilla returned to work, he had to be assisted with the lid of the bin but said that prior to him reporting his elbow, 'there was no mention of anything else'.

	Bins for laboratory waste and bins for paper waste

[36]	Mr Barra-Padilla said that there were some bins with yellow lids that contained lab waste and that those bins were not removed by him and that he was not responsible for emptying them. 

[37]	Mr Parada's evidence was that there was a paper recycle bin which was like a wheelie bin and that it was used for any bulk paper waste.  Mr Parada said that the client would log a request to have the full recycling bin taken away and a new bin delivered, and that an allocated team member would do that type of job.  Mr Parada said that that was not one of Mr Barra-Padilla's jobs.

[38]	Mr Barra-Padilla disputed that he was not responsible for the emptying of large 'wheelie bins' that held magazines, paper and cardboard.  He said that he would have to collect those and bring them outside and put them inside the container larger bins.

Cleaning related to special events

[39]	When taken to the floor plan of level four of G26, Mr Barra-Padilla agreed that there was a large area of that floor used as a lecture theatre for lectures and special events.  When asked if there was a 'special cleaning request' put in by the university following a special event, Mr Barra-Padilla disagreed and said that many times he was required to clean up after events where people left it very messy.  Mr Barra-Padilla disagreed that there would be special arrangements made to bring in additional people for cleaning after special events.  

[40]	Mr Parada's evidence was that there were two to three special events held per month and that there would normally be a request made through the client system to deliver some bins, prepare the area for the event and to take the bins away or help clean up afterwards.  Mr Parada said that Mr Barra-Padilla would have done that sort of work and in general there wasn't a lot of mess and so it didn't require extra help.  Mr Parada recalled one occasion where Mr Barra-Padilla requested help to clean up after an event but that 'it wasn't flagged as a concern or a major concern or anything like that'.

	Mr Parada recalls Mr Barra-Padilla smoking outside near the skip bins during his shift

[41]	Mr Parada recalled seeing Mr Barra-Padilla smoking when he was outside near the skip bins.  Mr Parada said that he remembered that because people were not supposed to smoke while on campus and that there were designated areas to smoke.  Mr Parada said that after seeing it once or twice, it stuck with him.  Mr Parada said that he allowed it to occur because 'at the end of the day, he's doing his job and it wasn't hurting anyone'.

[42]	Mr Barra-Padilla was asked if it was the case that when he would take the rubbish down to the bins outside, he would be able to stop and smoke a cigarette.  Mr Barra-Padilla said that he does not smoke and has not smoked since his heart attack in 2011.

	Mr Barra-Padilla's activity outside of work and history of injury prior to working for ISS at Griffith University 

[43]	Mr Barra-Padilla was asked how he spent his leisure time at the time he was working as a cleaner at Griffith University.  Mr Barra-Padilla said that he did home duties such as mowing the lawn.  He said that he could 'give himself a shower', that he played football and could dance and that 'with all these physical problems' his 'life turned 360 degrees'.

[44]	Mr Barra-Padilla said in the period he was working as a cleaner at Griffith University prior to his injury, he had not engaged in any strenuous physical activity outside of work.

	Mr Barra-Padilla says that he had to give up playing football

[45]	Under cross-examination, Mr Barra-Padilla said that he first had to give up playing soccer or football 'after the episodes' in October/November 2018.  When asked for how long he had played soccer or football, Mr Barra-Padilla said that he never played professionally and that he meant 'playing football' as 'whatever you could do play at home, play with friends, play with neighbours, or ultimately just dribble with a ball myself at home.'  It was Mr Barra-Padilla's evidence that prior to 2018, his ability to play football or soccer had not been affected.  Mr Barra-Padilla also agreed that he had no problems with dancing up until 2018.

[46]	However, in re-examination, Mr Barra-Padilla was asked if between August 2011 and September 2018, he had engaged in soccer or football.  Mr Barra-Padilla replied, 'Unfortunately, no. Unfortunately, because of my heart attack I had to stop with all those types of activities.'

[47]	I asked for clarification from Mr Barra-Padilla about his response as I had recalled that he had said that the injuries from 2018 had stopped him from playing soccer and dancing but that it had been his evidence that he wasn't doing soccer or dancing from 2011 up until 2018.  Mr Barra-Padilla answered that he was talking about soccer and that he could dance.

[48]	Mr Barra-Padilla's evidence was still unclear to me as I understood him to have said that the injury in 2018 stopped him from playing soccer, but his evidence also appeared to be that he had been unable to play soccer after 2011.  In response to my request for clarification, Mr Barra-Padilla said:

INTERPRETER: I – I would do it.  Yeah.  The doctor told me to try to go back as much as possible to my normal life and the – the cardiologist told me, and although I didn't – I didn't tell him or I just couldn't help playing with a ball around my house.  Yeah. I – I was – I was doing it but at the same time I was fearful that it could cause me another heart attack. Okay. So I just wasn't telling the doctor. I was afraid he'd tell me off for playing.

COMMISSIONER: Okay.  All right. I just wanted to be clear in my own mind.  I'm not sure if I'm any - - 

INTERPRETER: I – I – I'd like to apologise. I can imagine that it is confusing for you.  It was very confusing for me at the time as well.  That's – so reality is that there was some physical damage that – I'm sorry, I need for him to rephrase that, because it has confused me.  After the heart attack, I remained quite fearful.  The doctor told me, try to continue with your normal life.  I, without telling the doctor, I would play soccer dribbles in my house by myself.  But at the same time I was worried, but when – when the hip problem arose then I – I really couldn't play. 

[49]	The evidence and diagnosis of Dr Miller, general surgeon, is addressed below. However, relevant to Mr Barra-Padilla's engagement in physical activities outside of work, I note the evidence of Dr Miller was '…before his injury, he used to engage in social football, dance and walk a lot, and after his – after his condition developed, or his injury, he now leads a sedentary life, watching TV and using the internet and reading books is what I recorded'.  Dr Miller said that he didn't take a great history regarding football as he was not under the impression that his injuries had occurred as a result of football.  Dr Miller agreed that what Mr Barra-Padilla had led him to believe was that he was able to engage in all of those activities up until the onset of these symptoms.

[50]	Mr Barra-Padilla was taken to Dr Miller's report following a consultation on 1 August 2011 in relation to his claim for compensation for his back injury.  Mr Barra-Padilla agreed that on this day he reported to Dr Miller that he was unable to do housework, could not garden or mow the lawn, had to give up soccer and football and was unable to dance.

	Mr Barra-Padilla says that the injury has impacted on sexual relations with his wife

[51]	Mr Barra-Padilla reported that as a result of the physical problems he has now, he cannot have sex with his wife.  Under cross-examination, Mr Barra-Padilla gave evidence that prior to late 2018 he had no problems with erectile dysfunction.  Mr Barra-Padilla was taken to his medical records and asked if on 6 June 2008, he had attended upon a Dr Clive Kam where he had discussed a problem with maintaining an erection and that this required some investigations being undertaken by the doctor. Mr Barra-Padilla said that it could be the case but that he 'can't recall exactly because they're not related to the last job I had'.  Mr Barra-Padilla said that he thought there was a misunderstanding because his evidence had been about sexual relations, not erectile dysfunction.

[52]	Dr Kanwar's evidence is discussed below.  However, with reference to Mr Barra-Padilla's evidence regarding erectile dysfunction, Dr Kanwar said that in November 2019 erectile dysfunction was discussed with Mr Barra-Padilla and 'we thought he might be having that issue because of the low testosterone'.

Mr Barra-Padilla's previous roles and injuries

[53]	Mr Barra-Padilla said that his work as a chauffeur was not physically strenuous.  Mr Barra-Padilla said that he had previously done cleaning work in Canberra and in other locations on the Gold Coast but that the duties were not the same type of duties he had described undertaking at Griffith University. He said that commercial cleaning work is strenuous and that the work at the University was 'very, very heavy'.

[54]	Mr Barra-Padilla agreed that he had suffered a back injury while working at Pacific Fair but denied suffering an injury while working at the Sports Super Centre at Runaway Bay.  

[55]	Mr Barra-Padilla was again taken to his medical records regarding his appointment with Dr Anura Andarawewa on 30 July 2009 where he told the doctor that while working at the Sports Super Centre at Runaway Bay, he slipped and had a fall.  Mr Barra-Padilla agreed that he had described hurting his right shoulder and experiencing pain since the fall.

[56]	Mr Barra-Padilla agreed that he returned to Dr Anura Andarawewa on 9 March 2010 where he described lifting heavy chairs at work the day before and had strained his hip.  Mr Barra-Padilla also agreed that he had returned to the doctor on 19 March 2010 complaining of pain in the left groin.

[57]	Mr Barra-Padilla agreed that he applied for compensation for the injury he had reported occurred while lifting the chairs.  

	Mr Barra-Padilla's injuries relevant to this appeal

	Mr Barra-Padilla's symptoms and recent medical history

[58]	Mr Barra-Padilla said that he started feeling pain at the end of his third year working in the job.  He said 'All the work I did at the beginning wouldn't cause me any problem; I wouldn't have any sort of pain'.

[59]	Mr Barra-Padilla says that the pain he experienced progressed as he worked day by day.  He gave evidence that the pain in his left shoulder, left elbow and in both hips was a 'gradual onset'.

[60]	Mr Barra-Padilla said that prior to commencing employment at Griffith University, he did not experience pain in the shoulder, elbow or hips.  He said that before starting work with ISS, his medical issues included problems with his heart.  He also said 'at this time I'm being treated for a prostate problem'.

[61]	Mr Parada did not recall Mr Barra-Padilla reporting problems with his left shoulder, left elbow or hips prior to reporting those symptoms in or about October 2018.  It was put to Mr Parada that Mr Barra-Padilla had complained about his symptoms and Mr Parada said 'No. That never happened.'Mr Parada said that in October 2018, Mr Barra-Padilla 'expressed some discomfort in his elbow when vacuuming'.  Mr Parada recalled calling the hotline where incidents were reported to report Mr Barra-Padilla's complaint of  discomfort in his elbow but 'not so much that he couldn't do his work…'

[62]	Mr Barra-Padilla agreed that the symptoms he had described have 'come and gone', but when asked if there were occasions where he did not suffer from pain, he said 'The pain is always there.  It's a chronic pain. When I say "on occasion" is that sometimes it gets much worse than other days'.

Mr Barra-Padilla says that he cannot walk long distances since the injury but a hospital visit in 2019 records that he said he walked 3 kilometres

[63]	Mr Barra-Padilla said that when the pain is too severe, he can't walk more than 50 metres.  When asked if there were occasions where he could walk for a long distance, Mr Barra-Padilla said that before he started experiencing problems with his hips and shoulder in 2018, he could walk three kilometres.  The evidence appeared to be that since 2018 he has not been able to walk one kilometre.

[64]	Mr Barra-Padilla was asked if he recalled attending at the Robina Hospital emergency department centre on 18 December 2019 with chest pain.  Mr Barra-Padilla agreed that he had and said that after his heart attack, he had been told to get himself checked after any strange symptoms.

[65]	Mr Barra-Padilla was asked if he remembered telling the hospital that he had gone for a three kilometre walk.  Mr Barra-Padilla replied, 'I know – I know where you're going…There was a confusion.  I explained to the doctor that I walked less than 300 metres, but he made a mistake and he wrote "three kilometres" exactly.  Yeah, he could have – he could have written something like "10, 000 kilometres" too.' 

	General Practitioner Dr Kanwar's evidence

[66]	Mr Barra-Padilla became a patient of Dr Kanwar's practice on 27 July 2017.

[67]	Mr Barra-Padilla says that he first saw his general practitioner, Dr Kanwar regarding his pain in October 2018.  Dr Kanwar gave him Lyrica and Panadol for his pain.  Dr Kanwar provided evidence by way of a file note, and provided his surgery medical records.

[68]	In file note signed by Dr Kanwar on 29 July 2021, he expressed the opinion that:

(a)	There may be some degeneration, but Mr Barra-Padilla's work must be an aggravation at least, because that has brought on the pain; and

(b)	It is unlikely the "same thing" could have occurred without employment because, in order for it to happen, Mr Barra-Padilla would have to have been doing the same activities at home as he was a work, which he would not do.

[69]	The Respondent says that Dr Kanwar based his opinions purely on a contemporaneous onset of symptoms with employment and no analysis of work duties.

	Dr Miller's diagnosis

[70]	Dr Miller is a general surgeon with an interest in musculoskeletal trauma and orthopaedics.

[71]	Dr Geoffrey Miller provided evidence regarding Mr Barra-Padilla's injuries.  When giving evidence, Dr Miller had reference to a report dated 5 April 2020 and a file note.

[72]	Dr Miller diagnosed Mr Barra-Padilla's injuries as:

(a)	Left-sided rotator cuff tendinitis; and
(b)	Bilateral trochanteric pain with radiological evidence of left trochanteric bursitis.

[73]	Dr Miller's file note outlined the history regarding work duties as provided to him by Mr Barra-Padilla. Dr Miller relied on this history when making a diagnosis about the connection between the injuries and the work duties Mr Barra-Padilla described.

[74]	Dr Miller reported that in September 2018, Mr Barra-Padilla began to develop pain in his left elbow and later his left shoulder.  Mr Barra-Padilla reported to Dr Miller that his pain increased to such a level that on 6 November 2018, he could not continue working and he has not returned to work since then.

[75]	With regard to causation, Dr Miller said:

I believe that in the absence of any other causation that his work has been the most likely cause of his current condition.

His work has involved repetitive manual activities which have involved the use of his left shoulder, left elbow and both hip regions. These have resulted in tenosynovitis and bursitis and tendinitis.

[76]	In a file note signed by Dr Miller on 29 July 2021, he expresses the following opinions:

(a)	In the context of Mr Barra-Padilla's work, physical signs and radiology, his conditions are not constitutional or degenerative tendinopathies and are more likely than not related to his work.
(b)	As there is no other objective reason, other than Mr Barra-Padilla's work as to why he would have the conditions, his work is the significant contributing factor to the conditions.
(c)	Mr Barra-Padilla's job was manual, and his work involved activity at both high and low levels. This required considerable repetitive use of both upper and lower extremities.  He developed his conditions because of his work. 

[77]	Dr Miller agreed that when expressing his opinion, he relied on the history given to him by Mr Barra-Padilla.  Dr Miller said that relevant to his opinion was Mr Barra-Padilla's reporting to him that '…he was required to lift the lid to place the garbage into the container, and that it required him to reach up, crouch, bend and lift and use his upper extremities in a repetitive manual fashion'.  Dr Miller also recorded that the bins were 1.5 metres high and that the garbage bins Mr Barra-Padilla lifted weighed between 15 and 20 kilograms. 

[78]	Dr Miller recorded in his report that Mr Barra-Padilla's job required considerable repetitive use of his upper and lower extremities but agreed that there would be breaks from the repetitive duties when Mr Barra-Padilla would stop vacuuming and then clean the toilets.

[79]	Dr Miller was asked whether the natural breaks between activities at work can weaken the connection between the work duties and an injury someone might sustain.  Dr Miller said that over a period of time, it would be cumulative.  Dr Miller was asked if when he said 'period of time', it would have to be 'quite a significant period of time'  Dr Miller said that it would be variable and that it wouldn't occur over one day but over months or weeks, it 'would be conceivable that one would develop symptoms he is complaining of'.

[80]	With regard to whether another cause of Mr Barra-Padilla's injury could be his underlying degenerative condition, Dr Miller said that it is not inevitable that degenerative conditions will become symptomatic.  Dr Miller said that there are cleaners with degenerative disease who perform the duties Mr Barra-Padilla performed who do not develop symptoms.

[81]	Dr Miller agreed that there are people with underlying degenerative conditions who do become symptomatic and that Mr Barra-Padilla's symptoms 'could' be explained by his underlying degenerative disease.

[82]	The Respondent says that Dr Miller relied heavily on the history given to him by Mr Barra-Padilla and that he placed considerable emphasis on Mr Barra-Padilla's reporting to him that the garbage bags he was lifting weighed between 15 and 20 kg.  The Respondent says that the evidence before the Commission does not lead to a finding that Mr Barra-Padilla was lifting weights at the level assumed by Dr Miller when making his diagnosis.  As a result, the Respondent says that the absence of evidence of primary facts which are 'sufficiently like' those factual assumptions therefore makes the opinion of little benefit.  Further, the Respondent says that Dr Miller's opinion is not supported by any tangible analysis of Mr Barra-Padilla's work duties, even if they were as he reported them to be.

[83]	The Respondent also says that Dr Miller's opinion was essentially that as there is no other objective reason for Mr Barra-Padilla's conditions, his work is a significant contributing factor and that any opinion expressed in those terms is 'inadequate'.  The Respondent also says that Dr Miller agreed that Mr Barra-Padilla's symptoms could be explained because of his underlying degenerative condition.

	Dr Lingwood's diagnosis

[84]	The Respondent called medical evidence from Dr Andrew Lingwood, consultant occupational medicine physician. Dr Lingwood's diagnosis was provided in a report dated 8 January 2019.

[85]	Mr Barra-Padilla told Dr Lingwood that there was a gradual onset of pain in his left shoulder and elbow and hips bilaterally in around September 2018.  Mr Barra-Padilla said that there was no injury, trauma or unusual event and said that the pain built up gradually in the course of his normal cleaning duties at work.  Mr Barra-Padilla said that after the symptoms commenced, they became apparent with physical activities outside of work and at home. 

[86]	Dr Lingwood diagnosed Mr Barra-Padilla's injuries as: 

(a)	Left-sided rotator cuff tendinopathy with significant bursitis;
(b)	Clinical evidence of left-sided common extensor origin tendinopathy without significant radiological changes; and
(c)	Clinical diagnosis of bilateral greater trochanteric pain syndrome with radiological evidence of mild gluteus medius tendinopathy but not gross bursitis.

[87]	Dr Lingwood's report sets out his opinion at page 7: 

Mr Barra-Padilla has radiological and clinical evidence of left-sided rotator cuff tendinosis in the form of insertional tendinopathy in the subscapularis and supraspinatus tendons as well as mild left-sided acromioclavicular joint osteoarthritis.  No marked bursitis or radiological impingement was noted.  He further has a clinical history suggestive of left-sided common extensor original tendinopathy however radiologically there was no evidence of such tendinopathy in the left elbow.  Imaging of his hips note mild low-grade tendinopathy a calcification in the gluteus medius tendons however no significant trochanteric bursitis.  The radiologist felt the findings were potentially consistent with greater trochanteric pain syndrome.

All of the above conditions are constitutional or degenerative tendinopathies contributed to by age-related changes in the affected tendons.  None of these conditions have been caused by Mr Barra-Padilla's employment.  It is however entirely in keeping with the natural history that these underlying conditions, that the performance of his normal duties as a cleaner may result in symptoms from the underlying conditions. 

It is also possible for acute injuries or traumatic events to result in a pathological aggravation of any of the above tendinopathies. Review of the history with Mr Barra-Padilla however and the available clinical records does not support that there has been any particular injury or acute traumatic event in this case.  Mr Barra-Padilla reported a gradual build-up of pain in these areas in the context of his normal cleaning duties at work but also subsequently noted the symptoms that would be present when performing tasks away from work. 

On the balance of probabilities, I am thus not of the opinion that Mr Barra-Padilla's employment has been a significant contributing factor to either the causation or a specific aggravation of these underlying degenerative tendinopathies. His employment has been one setting in which he experiences symptoms due to the underlying degenerative conditions. 

[88]	At the hearing, Dr Lingwood said: 

…it's very important in a lot of these tendinopathy or musculoskeletal – chronic musculoskeletal conditions is to distinguish between pain being noticed because of an underlying condition when one is performing an activity versus exposures or activities which are actually causing the underlying pain, and that can be a somewhat subtle distinction, but I think that it is – that it's quite important.

[89]	In confirming that his opinion was that Mr Barra-Padilla's injury was not caused by his employment, Dr Lingwood said that for a person with symptomatic underlying rotator cuff tendinosis, a whole variety of tasks using the upper extremities might make them aware of pain in the shoulders, but a lot of those tasks will not be relevant to the causation of the condition, but are expected to result in pain due to the underlying condition.

[90]	With regard to the use of a vacuum causing a rotator cuff tendinopathy injury, Dr Lingwood said that he could not see a connection between the use of a vacuum cleaner and the rotator cuff tendinopathy.  Dr Lingwood said that he thought that putting on and taking off a vacuum cleaner and using a vacuum cleaner on floors and surfaces is not the type of repetitive duty that is associated with tendinopathy in the elbow or shoulder tendinopathy.

[91]	With regard to the lifting of bags of rubbish into the skip bins, Dr Lingwood said that he would not consider that task to be of particular relevance to the shoulder pathology.  Dr Lingwood said that if someone has underlying shoulder pathology, lifting medium or heavy bags even below chest height might result in the person being aware of pain but that that is not the type of exposure that really has any causative link to this pathology.  Dr Lingwood said that while he would consider 'sustained, repetitive use of the arm in an above-chest-height position and potentially consistent with this condition' he understood that Mr Barra-Padilla was lifting the bin lid up and putting rubbish in 'on an intermittent basis with a variety of other tasks in between' and that this did not speak to the same type of sustained, repetitive above-shoulder-height activities which can be associated with this condition.

[92]	Dr Lingwood expressed an opinion that he couldn't see any link between a backpack vacuum and the elbow injury. Dr Lingwood also said that did not think that the use of a vacuum cleaner was the type of exposure that would typically link in a causative sense to Mr Barra-Padilla's condition.

[93]	With regard to Mr Barra-Padilla's hip pain, Dr Lingwood said that there are some physical exposures which might worsen or aggravate the underlying pathology such as cycling and running but that the act of being on one's feet is not widely accepted to be a contributing or causative factor.  Dr Lingwood said that if a person has the condition, they are more likely to have pain when they are standing on their feet or walking than if they are sitting down.  Dr Lingwood also said that if a person was squatting frequently, repetitively and under heavy load for extended periods, that could potentially aggravate or exacerbate the pathology.

[94]	Dr Lingwood was asked if it was the case that because one notices the onset of pain while they are doing duties, that there is a connection between the pain and the particular duty being performed at the time.  Dr Lingwood said 'Certainly not necessarily in a causative sense, and that certainly shouldn't be taken to mean that I do not or did not believe that Mr Barra-Padilla was experiencing pain with these activities…'

[95]	Under cross-examination, Dr Lingwood was asked if in the circumstances, given the absence of any other causation, Mr Barra-Padilla's work must, on the balance of probabilities, be the cause of his current conditions.  Dr Lingwood replied:

No. That's – like, these conditions are exceptionally common, and they occur frequently in the absence of any external cause, because the primary pathology is just underlying wear and tear and degeneration.  There does not have to be any external cause for these conditions.  As I've said before, there certainly are some external physical exposures which are fairly widely accepted to be associated with aggravations therefor, but I don't sort of – I don't sort of follow or support the notion that just because there has been no other external exposure found, that it must be work.  If we look at risk factors for conditions in general, Mr Barra-Padilla's age is an independent risk factor. So we could just as easily argue that his age is the cause for these conditions. But as I said before, there doesn't have to be any external cause, because these are constitutional wear-and-tear type conditions.

Submissions of the parties regarding the expert evidence

[96]	The Appellant says that whilst both doctors diagnosed injuries in slightly different terms, they agree that they have essentially diagnosed the same  injuries to the left shoulder and hips. I agree, and note that the parties agree that Mr Barra-Padilla's injuries are as diagnosed by Dr Miller and Dr Lingwood.

[97]	The Appellant says that the overarching principles which will 'govern the commission's deliberations' are:

a)	The fact that experts do not infer causation on the balance of probabilities does not mean that a court may not.

b)	A finding of causal connection may be made even when the expert evidence does not rise above the possible; the question is always whether the evidence as a whole established causation on a balance of probabilities.

[98]	The Appellant says that when considering the expert evidence, the test which ought to be applied is that of Mahoney JA (Glass JA agreeing; Reynolds JA dissenting) in Fernandez v Tubemakers of Australia Limited, the relevant enquiry being:

whether the evidence showed the connection between the possible cause and the condition which occurred was sufficiently close to warrant a reasonable mind, faced with the problem of determining the question upon the evidence before it, concluding that the possible was the actual cause

[99]	The Appellant says that there is a remarkable temporal relationship between 'on the one hand, the tasks being undertaken by the Appellant for the purposes of the job he was performing that day and, on the other, the onset of signs and symptoms in the Appellant's left shoulder, left elbow and hips and, secondly, the demanding nature of the work and its tendency to be productive of symptoms of injury.'

[100]	The Appellant submits that if 'eminent practitioners the like of Dr Miller and Dr Kanwar found the temporal link so persuasive, why should that circumstance be any less persuasive to the non-expert mind?'.  I note that in closing submissions in reply, the Respondent says that there is no evidence before the Commission that either Dr Miller or Dr Kanwar are 'eminent'.   

[101]	The Respondent says that the opinions of Dr Kanwar and Dr Miller were based on the description of the work duties described by Mr Barra-Padilla and that as stated by President Martin in Simon Blackwood (Workers' Compensation Regulator) v Mana:

It is an uncontestable requirement that, for an expert opinion to be of any value, the facts upon which it is based must be proved by admissible evidence…

	The Respondent raises issues regarding Mr Barra-Padilla's credibility as a witness

[102]	The Respondent says that Mr Barra-Padilla's appeal relies on his evidence being accepted and that it the Commission will 'readily find that Mr Barra-Padilla was a very poor witness determined to exaggerate all aspects of his claim'.  Further, the Respondent says that Mr Barra-Padilla's evidence should be 'treated with extreme caution and, mostly, can be rejected'.

	Use of an interpreter 

[103]	Mr Barra-Padilla gave his evidence for this matter with the assistance of an interpreter.   The Respondent says that while 'the use of an interpreter is nothing to be critical of', it is a factor which should be considered when assessing Mr Barra-Padilla's evidence and that Mr Barra-Padilla has a better understanding of English than what had been assumed.  

[104]	The Respondent gives several examples of times during the hearing when Mr Barra-Padilla: responded directly to the Commission acknowledging a direction to answer questions; answered directly questions put in cross-examination; added the word 'yes' to answers given by the interpreter; added to an answer given through the interpreter; and responded directly to his counsel in re-examination when he was directed to questions about what he had told Dr Miller about soccer in 2011.

[105]	The Respondent also points to other occasions 'not apparent on the face of the transcript' where Mr Barra-Padilla corrected the interpreter if she was not accurately translating his evidence to English. 

[106]	The Respondent says that a stark example of Mr Barra-Padilla's understanding of English was when Mr Parada was giving evidence.  The Respondent says that Mr Parada was softly spoken and at times hard to hear but that Mr Barra-Padilla, sitting at the back of the courtroom, heard and understood that evidence and signalled his disapproval of what Mr Parada was saying and interjecting on at least two occasions.

[107]	The Respondent submits that Mr Barra-Padilla 'very likely understood' the questions being asked in English and that with the subsequent interpretation of the questions, Mr Barra-Padilla had 'more time to consider the questions and his answers'.

[108]	The Respondent also says that criticisms of Mr Barra-Padilla's evidence cannot be explained away by language barriers. 

[109]	The Appellant says that criticism of Mr Barra-Padilla giving evidence through an interpreter is ill-founded and that there is no basis for the assertion made by the Respondent that Mr Barra-Padilla had a better understanding of English than had been assumed.

[110]	The Appellant says that Mr Barra-Padilla gave his evidence over an extensive period of time. 

	Consideration

	Mr Barra-Padilla's evidence

[111]	I have considered the submissions of the Respondent regarding Mr Barra-Padilla's credit as a witness.  My impression was that Mr Barra-Padilla was reluctant to answer questions pressing him on his evidence regarding the degree to which he was able to engage in physical activity in the time before the injuries.  I had to direct Mr Barra-Padilla to answer questions several times while he was being cross-examined.  It seemed to me that Mr Barra-Padilla wished to undertake his own assessment of the relevance of a question, or whether an answer to a question would be potentially detrimental to his case.   At one point, Mr Barra-Padilla suggested that Mr Gray was attempting to confuse the issue before the Commission when it was plain to me that Mr Gray was simply seeking to explore answers given by Mr Barra-Padilla during his evidence-in-chief.

[112]	I find myself unable to accept Mr Barra-Padilla's evidence about the extent of physical activities he was able to participate in prior to 2018 and following the onset of his symptoms.  Mr Barra-Padilla's evidence was inconsistent and appeared to become even more convoluted when clarification was sought. I do not find that this problem with Mr Barra-Padilla's evidence arose from the use of an interpreter.  I found the interpreter to be thorough and professional in ensuring that questions were understood, answers were accurate and uncertainties clarified. 

[113]	Similarly, I find Mr Barra-Padilla's evidence regarding the work he undertook did not accurately represent the reality of the situation.  While it was clear that Mr Barra-Padilla did undertake the range of tasks and duties set out at [14], I do not accept that the work was as arduous as described by Mr Barra-Padilla. The maps of G25 and G26 and the cleaning required in these buildings was discussed with both Mr Barra-Padilla and Mr Parada.  The buildings Mr Barra-Padilla was cleaning appeared to be reasonably 'clean' when compared to other high traffic and 'dirty' areas of the university.  As is discussed later, it is also clear that Mr Barra-Padilla was engaged in the duties and activities in such a way that the tasks he was undertaking were frequently changing as he moved through each floor of the building.

[114]	I do not accept Mr Barra-Padilla's evidence that the rubbish bags he was lifting weighed 15 to 20 kilograms and I further do not accept Mr Barra-Padilla's evidence that the bin lids on the external bins were excessively heavy. I find it entirely unlikely that Mr Barra-Padilla was lifting 'wheelie bin' style bins full of paper waste or that he was responsible for the removal of such bins. 

[115]	However, I do accept that Mr Barra-Padilla may have been experiencing discomfort when undertaking his work and when undertaking activities outside of work.

[116]	Unfortunately, my finding regarding Mr Barra-Padilla's evidence as to physical activities outside of work and the duties he undertook while at work also means that I have concerns about the veracity of information provided by Mr Barra-Padilla to the doctors who examined him.  The medical experts can only base their opinions about causation on the information provided to them and I find that Mr Barra-Padilla was not a forthright witness during these proceedings and that he may not have been forthright during the medical examinations.

[117]	Further to this, I found Mr Parada to be an open and honest witness and I have no reason to doubt that he was truthfully answering the questions put to him.  For example, Mr Parada spoke of seeing Mr Barra-Padilla smoking while outside at the bins on more than one occasion.  By sharing this recollection, Mr Parada, as Mr Barra-Padilla's supervisor, was admitting that he had observed a staff member breaching the university rules regarding designated smoking areas and that he, as supervisor, had not intervened to address the behaviour.  Further to this, as Mr Barra-Padilla's injury was unrelated to smoking, I can see no reason why Mr Parada would fabricate such evidence.  

[118]	Mr Parada presented as a professional who takes pride in his work and is across the detail of the work undertaken by staff members, including Mr Barra-Padilla, during the relevant time.  I accept Mr Parada's evidence that Mr Barra-Padilla did not raise issues about his shoulder, elbow or hip symptoms until October 2018 when he complained about pain in his elbow.  I note that Mr Parada appears to have immediately reported that Mr Barra-Padilla had raised the issue regarding his elbow. 

	Was Mr Barra-Padilla's employment a significant contributing factor to the injury?

[119]	The Appellant submits that in considering this appeal I need to determine whether it is more probable than not that there is a causal relationship between Mr Barra-Padilla's condition and the matters complained of. The Appellant says that the 'crucial issue is whether the Appellant's assertions regarding his injuries are genuine. If Mr Barra-Padilla has something genuinely wrong with him, the decision of the Commission 'must flow from that in the Appellant's favour'.

[120]	The Respondent contends that Mr Barra-Padilla's pain has arisen as a natural consequence of age-related changes and underlying pathology and therefore employment is not a significant contributing factor to his employment.   

[121]	The Respondent says that any evidence that might be favourable from Mr Barra-Padilla proves no more than a possibility that there is some contribution from his employment activities and that such evidence was not sufficient to establish that this employment was a significant contributing factor to his injury.

[122]	Dr Kanwar's opinion does not appear to be based on a detailed assessment of Mr Barra-Padilla's work duties.  The file note setting out Dr Kanwar's opinion says, 'there may be some degeneration there, but his work must be an aggravation at least, because that has brought on the pain'.  I have taken note of Dr Kanwar's opinion but I do not find it persuasive in establishing that Mr Barra-Padilla's employment was a significant contributor to his injury.

[123]	When considering the expert evidence, I note that Dr Miller placed considerable weight on Mr Barra-Padilla's description of his work as repetitive manual activities and with reference to lifting bags of rubbish weighing between 15 and 20 kilograms.  

[124]	The evidence demonstrated that while Mr Barra-Padilla may have undertaken activities which could be described as repetitive, he did so in the context of undertaking those activities for a period of time before changing to a different activity as he worked through his tasks on each floor of the building.  

[125]	Further to that, I find that on the balance of probabilities, it is unlikely that the rubbish bags Mr Barra-Padilla handled were of 15 to 20 kilograms as reported by him or that the lid of the large outdoor bins was as heavy as Mr Barra-Padilla claimed it to be.  It is also clear that the outdoor bins featured a mechanism which would hold the lid of the bin open while rubbish was put in it and so there was no repetitive lifting of the lid.  Having determined that the work duties were not as Mr Barra-Padilla described them, I cannot establish that they were the cause, or a significant cause of the injury.

[126]	I note the consideration by O'Connor VP of 'a significant contributing factor' in s 32 of the Act in the matter of Qantas Airways Ltd v Simon Blackwood (Workers' Compensation Regulator):

[45] The phrase "a significant contributing factor" in s 32 of the Act requires more than a mere satisfaction that some element of contribution occurred. The appellant has, in my view, demonstrated that the contribution of the employment was not a significant contributing factor when compared to the dominant contributing factor, namely Petrovic's underlying degenerative condition. 

[46] The evidence, in particular, the medical evidence is sufficient to establish that Petrovic's employment with Qantas was possibly a contributing factor, but it was not, in my view, on the balance of probabilities, sufficient to establish that it was a significant contributing factor. (citations omitted)

[127]	While Dr Miller's opinion was that the work duties caused Mr Barra-Padilla's symptoms, the difficulty with this is that as I am unable to determine the truthfulness of Mr Barra-Padilla's description to the doctors and to this Commission of his work duties and his activities outside of work. As a result, I am unwilling to give Dr Miller's opinion enough weight to determine that employment was a significant contributing factor to the injuries. 

[128]	Dr Lingwood's assessment appeared to be based on a detailed and nuanced assessment and understanding of the work tasks undertaken by Mr Barra-Padilla. Dr Lingwood found that the activities Mr Barra-Padilla was undertaking were not of a nature that was likely to cause the injuries he was suffering.

[129]	Dr Lingwood was of the view that the injuries resulted from an underlying degenerative condition.  The symptoms arose while Mr Barra-Padilla was undertaking his work duties, but the evidence before the Commission also demonstrated that the symptoms also arose when Mr Barra-Padilla was undertaking activities at home and outside of work.  I note that Dr Miller agreed that there are people with underlying degenerative condition who become symptomatic and that the underlying degenerative condition could explain Mr Barra-Padilla's symptoms.

[130]	Mr Barra-Padilla's representative says that in the absence of other reasons for the symptoms, it is open to me to find that employment was a significant contributing factor to Mr Barra-Padilla's injuries. For the reasons given above, I do not find that the evidence shows that Mr Barra-Padilla's employment was a significant contributing factor to his injuries. In addition, I disagree with the suggestion that there is an absence of other possible contributing factors.  Having considered the medical evidence, I find that the underlying degenerative condition described by Dr Lingwood is the dominant contributing factor to Mr Barra-Padilla's injury.  

[131]	For those reasons, I find that Mr Barra-Padilla's employment was not a significant contributing factor to his injury and that his claim is not one for acceptance.

[132]	I order that:

1.	The appeal is dismissed.

2.	Failing agreement between the parties, a decision on costs will be subject of a further application to the Commission.