Boynton v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 52
•10 March 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Boynton | v | Simon | Blackwood | (Workers' |
Compensation Regulator) [2014] QIRC 052
| PARTIES: | Boynton, Neil | ||||
| (Appellant) | |||||
| v | |||||
| Simon Blackwood (Workers' Compensation Regulator) | |||||
| (Respondent) | |||||
| CASE NO: | WC/2013/213 | ||||
| PROCEEDING: | Appeal against a decision of Simon Blackwood | ||||
| (Workers' Compensation Regulator) | |||||
| DELIVERED ON: | 10 March 2014 | ||||
| HEARING DATES: | 15 and 16 January 2014 | ||||
| MEMBER: | Industrial Commissioner Thompson | ||||
| ORDERS : |
|
confirmed.
3. The Appellant is to pay Respondent'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 - decision of Simon Blackwood (Workers' Compensation Regulator) - Appellant bears onus of proof - standard of proof - balance of probabilities - Appellant a worker - Appellant to establish he suffered a personal injury and whether injury arose out of, or in the course of, employment and whether employment was a significant contributing factor - Appeal dismissed - decision of Regulator confirmed - Appellant to pay Regulator's costs. |
| CASES: | Workers' Compensation and Rehabilitation Act |
| 2003 s 11, s 32(1), s 550 | |
| APPEARANCES: | Mr T. Nielsen, Counsel instructed by Shine Lawyers for the Appellant. Mr F. Lippett, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. |
[1] On 25 June 2013 Neil Boynton (the Appellant) lodged with the Industrial Registrar a Notice of Appeal pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Q-COMP Review Unit (Q-COMP) released on 28 May 2013. Since the filing of the Appeal, a number of amendments have been made to the Act which include the Respondent to the Appeal being abolished and from 29 October 2013, the new name replacing Q-COMP is that of Simon Blackwood (Workers' Compensation Regulator) (the Regulator) who, in turn, becomes the Respondent to the Appeal.
[2] The decision of the Regulator was to confirm the decision of WorkCover to reject the Appellant's Notice of Claim for Damages in accordance with s 32 of the Act.
Relevant Legislation
[3] The Legislation pertinent to this Appeal is 32 of the Act:
"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."
Nature of Appeal
[4] The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant.
Standard of Proof
[5] The standard of proof upon which an Appeal of this nature must be determined is that of "on the balance of probabilities".
Evidence
[6] In the course of the proceedings, evidence was provided by seven witnesses.
[7] The Commission, in deciding to précis the evidence of the witnesses, and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety.
Witness Lists
[8] The witnesses for the Appellant were as follows:
Appellant Dr Scott Campbell (Dr Campbell); Bernard Emmerson (Emmerson); and Jayne Boynton. [9] The witnesses for the Regulator were as follows:
Diane Saal; Peter Saal; and Bradley Simpson (Simpson). Appellant
[10] The Appellant, a Boilermaker, took up employment at Widgee Engineering (Widgee) on 21 November 2011, working five x 10 hour days in the welding area. On commencement he was shown around the worksite by Peter Saal and taken through methods of work by another employee, including how to use rollover bars to turn over and move rolled steel joists (RSJ), some of which were up to 20 meters in length. About a week into the job the Appellant also secured a start for Emmerson at Widgee with them travelling to and from work together. In about January or February 2012, after Emmerson had left the firm he was given a "Take 5" booklet which was a risk assessment tool for use in the workplace but never used it on the basis of advice from another employee (Josh Dean).
[11] The instruction regarding the use of rollover bars (which were used when a forklift was unavailable) identified a method he was not familiar with and according to his evidence there was another way to use the rollover bars. He had mentioned to a supervisor concerns about rollover bar usage, but the supervisor was not too concerned about it. The method as shown in Exhibit 4 was not the method he understood in previous employment.
[12] On 30 March 2012 when rolling a beam, the rollover bar came back on him causing an injury to his back at about shoulder height. He continued to work despite the pain and ceased work at 12 noon which was his normal finish time on a Friday. He did not report the incident to the employer. On the way home he called into Emmerson's place at around 1.00 pm where he informed him of the incident and of his unavailability to undertake some volunteer work at a social club the next day due to his injured back. Upon arrival at his place of residence he informed his wife of the incident and injury to his back declining to undertake repairs to some fencing, instead choosing to rest for the weekend.
[13] With rest over the weekend the pain factor went from "four to five", to a "two or three" with him being able to return to work on Monday 2 April 2012 at 5.30 am where he started to weld a set of stairs which required him to weld in various positions including about half an hour on his knees. In the course of this job he felt pain in his lower back (pain factor "10.5 out of 10") which resulted in him informing other staff including Simpson that he needed to lie down in an effort to get his back right. When this did not assist, he tried to walk it off before deciding to go home. He required assistance to get to his vehicle and on arriving home had to be helped from the vehicle by his wife. The first available treatment was with his General Practitioner on 4 April 2012 where he was issued with a medical certificate and went on to make a claim for compensation with WorkCover identifying 2 April 2012 as the date of injury. The next couple of months he received a number of physiotherapy treatments eventually being referred by WorkCover to a number of Orthopaedic Surgeons, one of whom (Dr Winstanely) was quite inquisitive and this led to the incident of 30 March 2012 being identified as having relevance to his condition as well as the 2 April 2012 incident. Another Orthopaedic Surgeon (Dr Cotton) advised him to make a civil claim.
[14] At the time of hearing, the Appellant had not returned to work as a Welder, still suffered from back pain, and was very limited in terms of physical activities he could now undertake. Additionally his injury prevented or restricted him from performing numerous tasks around his farm and recreational activities including competition shooting.
[15] Under cross-examination, the Appellant's evidence regarding his shooting activities of being once a month was shown to be at odds with the declaration in the Statement of Claim of 11 December 2012 which indicated he was "now unable to participate in any type of physical activity". The Appellant accepted that when firing a shotgun the recoil would have an impact on his spine [Transcript pp. 1-28 to 1-30]. The Appellant did not accept he had undertaken an induction on commencement of employment which included references to safety procedures and he denied being provided with a workplace agreement at the same time [Transcript p. 1-32]. In January/February 2012 he had seen a draft workplace agreement but discounted it on the basis he had refused to sign it [Transcript p. 1-33]. He conceded when looking at the workplace agreement he would likely have read the workplace health and safety page but his evidence was he was unaware of incident report obligations [Transcript pp. 1-33 and 1-34]. The Appellant claimed to have never worked on large RSJs and had never seen a rollover bar used previously [Transcript p. 1-36]. There were delays in getting access to a forklift of 20 minutes and it was not common to wait for a forklift [Transcript p. 1-38].
[16] There were said to be inherent dangers using the rollover bar and he disputed the alternative method of use was safer than how he would use the rollover bar [Transcript p. 1-39]. Despite issues, it was conceded he had never formally complained about using the rollover bar or asked if there was a safer method [Transcript p. 1-41]. Photographs tendered in the proceeding on behalf of the Appellant [Exhibit 5] depicting RSJs were taken from the internet rather than on site at Widgee [Transcript p. 1-44]. The Appellant had recall of two (only) toolbox meetings in his time at Widgee, rejecting the concept there were more regular meetings [Transcript p. 1-45].
[17] On 30 March 2012 after injuring his back, he continued to weld in positions that required bending and then cleaned up prior to leaving site [Transcript p. 1-46]. In undertaking those duties he experienced pain symptoms. The normal hours of work were from 5.30 am to 3.00 pm with two 30 minute breaks and on Fridays 5.30 am to 12 noon with one 30 minute break [Transcript p. 1-48]. At the commencement of work on 2 April 2012 he "had a little bit of residual back pain from the incident on the Friday" which did not impact on his work activities that morning [Transcript p. 1-49]. The Appellant described the task of welding the stairs and the severe pain he experienced when standing up after having been kneeling for some time. Upon seeing his General Practitioner on 4 April 2012 he made no mention of the incident on 30 March 2012 as being causative of his condition [Transcript p. 1-51], nor did he mention the 30 March 2012 incident to his treating Physiotherapist in the course of approximately 18 visits. He had at other times mentioned to Drs Winstantley and Cotton the 30 March 2012 incident [Transcript pp. 1-53 to 1-60].
[18] Questions were put to the Appellant regarding previous activities on his farm and the details contained within his notice of claim [Transcript p. 1-64]. On a visit to the worksite some months after he had ceased work on 2 April 2012, he had a conversation with Simpson but denied telling him that whilst he was off on workers' compensation he was working on his cars. What he had told him was he "had been fucking around with me cars" [Transcript p. 1-67]. There was also a telephone conversation about a week after he had finished work on 2 April 2012 where he had told Peter Saal he was fine and wanted to go back to work conceding he had made no mention of having suffered an injury on 30 March 2012 [Transcript p. 1-67].
Dr Campbell
[19] Dr Campbell, a Neurosurgeon, interviewed the Appellant and furnished a medico-legal report [Exhibit 3] dated 17 December 2012. In the report there was reference to work incidents on 30 March 2012 and 2 April 2012 with Dr Campbell giving evidence that the incident on 30 March 2012 was of a type that would cause a lower back injury and the incident of 2 April 2012 being "a weaker link" because there was no physical injury apart from adopting an awkward posture for a prolonged period but if there was a pre-existing problem the 2 April 2012 incident may have caused an aggravation. Given the circumstances the 2 April 2012 activities most likely aggravated the initial injury from the previous Friday.
[20] In terms of his impairment assessment, the apportionment of the seven per cent whole person impairment was said to be:
30 March 2012 - 80 per cent; and 2 April 2012 - 20 per cent. [21] The report indicated there was no past history of lower back pain contributing to the current impairment.
[22] Under cross-examination, Dr Campbell:
confirmed the Appellant had an asymptomatic degeneration in his back
prior to the work injury [Transcript p. 1-57]; work injury diagnosis was a chronic soft tissue musculoligamentos injury
to the lumbar spine [Transcript 1-57];
the work activities on 2 April 2012 could have caused a lower back injury but as a stand alone event, if he was just performing those activities and was asymptomatic prior, it would be unlikely he would have sustained a serious injury [Transcript p. 1-57]; and
an asymptomatic degenerative back could become symptomatic as a result of prolonged activity in the absence of a prior trauma [Transcript p. 1-57].
[23] In response to a question from the Commission, Dr Campbell indicated that a 59 year old person doing manual tasks for 20 to 30 minutes would be a prolonged period of time [Transcript p. 1-58].
Emmerson
[24] Emmerson, a former Welder, had known the Appellant for about six years having met through a sporting shooting club. He obtained employment at Widgee in November 2011 staying for no longer than three months. Emmerson could not recall receiving any paperwork on commencement, nor being taken through a site induction and did not have any knowledge of the Take 5 booklet.
[25] Whilst previously working in the railways, he had used rollover bars and went on to describe their usage stipulating he had not previously used them on beams as long as those at the Widgee site and always pulled the bar towards himself. There were forklifts and cranes available which he regularly used to roll beams and it was only as a last resort would he use a rollover bar. On occasions he had experienced personal difficulties with the usage of rollover bars that led to his shoulder being "wrenched, jarred or strained".
[26] Emmerson recalled the Appellant turning up at his home (on a date unknown) at around 1.00 pm to inform him he had injured his back using rollover bars and would be unavailable to assist with volunteer work at the social club that weekend. At the time he observed the Appellant wincing in pain.
[27] Under cross-examination, Emmerson at first had difficulty in recalling how many weekends up to 2 April 2012 he worked with the Appellant at the social club but recalled it was once a month in 2011 [Transcript p. 1-76]. On the visit to his home by the Appellant he recalled the half hour conversation was about the injury suffered using the rollover bar that day but Emmerson was unable to recall providing a statement to the Appellant's Solicitor quite some time after April 2012 [Transcript pp. 1-77 to 1-79]. The Appellant had never mentioned anything to do with his "compo" claim.
[28] In re-examination, Emmerson's evidence was that he regularly used a rollover bar between the 1980s and 2012.
Jayne Boynton
[29] Jayne Boynton, the wife of the Appellant, had operated a horse business in partnership with her husband with the business ceasing three years ago when her husband was diagnosed with prostate cancer. Prior to her husband working for Widgee in 2011/12, he had never suffered from back pain. Jayne Boynton gave evidence of her husband arriving home on a Friday [30 March 2012] and informing her that he had "done what Bernie [Emmerson] did the other week using that tool that they use to roll the bars over" [Transcript p. 1-86] and he had twinged his back. He went to work on the following Monday returning home early and having to be helped out of the car and had been in constant pain ever since. Prior to his back injury it had been the intention to keep the horse business operating with the Appellant planning to build a number of fences.
[30] Under cross-examination, Jayne Boynton gave evidence regarding purchasing their current property and undertaking a range of capital improvements including the building of fences and yards. A partnership had been established and they had disposed of some eight horses [Transcript p. 1-89]. Since 2012 her husband had been unable to perform a range of tasks around the property [Transcript pp. 1-97 to 1-98].
Regulator
Diane Saal
[31] Along with her husband, Diane Saal is a Director of Widgee, working in the administration section of the business. Her role includes the issuing of, amongst other things, the Take 5 booklet which she did at the time of the Appellant starting work with the business. The employees are encouraged to raise any problems with the booklet, which deals with risk assessment. Diane Saal could not recall exactly when the Take 5 booklet was handed to the Appellant however the usual practice was within the first few days of commencement.
[32] At the time of the Appellant's employment, there was an employee by the name of Josh Dean who was the Yard Foreman but had no designated role providing documents or in the administration of the business.
[33] Under cross-examination, Diane Saal's evidence was that the Take 5 booklet and workplace agreement were handed out at the same time however at the time of the Appellant's engagement there were some issues with the agreement and it was withheld from him [Transcript p. 1-103].
[34] There was no record of the Appellant having signed anywhere that he had received and read the Take 5 booklet which, according to Diane Saal, was because he refused to sign the workplace agreement [Transcript p. 1-105]. Diane Saal refused to concede the Take 5 booklet was first given to the Appellant in February 2012 [Transcript p. 1-107] and recalled having given the Take 5 booklet to Emmerson when he had commenced work.
[35] Since the inception of the booklet, there had not been one risk assessment document lodged in the office due to tradesmen having the knowledge to undertake the tasks. The Appellant had never lodged a Take 5 document [Transcript p. 1-109].
Peter Saal
[36] Peter Saal, also a Director of Widgee, gave evidence of employing the Appellant in November 2011 and whilst he was employed there were no issues with his work. At the time of engagement he took the Appellant through the workplace agreement (page by page) and asked him to take a copy home, read it and raise any questions he may have about the content. The Appellant never raised any matter.
[37] Peter Saal put the Appellant through an induction procedure in which the following were covered:
punctuality; Take 5 risk assessment - explained; and introduction to other staff. [38] The supervisory staff at the time were Darren Hubbard (Workshop Manager) and Simpson (Supervisor).
[39] Peter Saal was aware the Appellant had lodged a claim for workers' compensation for an injury sustained on 2 April 2012 having rung a week after it happened to enquire about the injury, treatment and likely return to work. The Appellant indicated he was bored and wanted to return to work but at no stage mentioned any injury from 30 March 2012. In early 2012 toolbox meetings were held every two to three weeks which he chaired and whilst they were attended by the Appellant, he never raised any issues.
[40] Peter Saal described the method he used when operating the rollover bar to turn RSJs which he said was "quite simple" with there being no danger with the beam being rolled away, although if the beam was rolled towards the person that would present a dangerous situation.
[41] There were no instructions given on how to use rollover bars as it was common practice to roll the RSJ away from you and he had never witnessed a worker doing it any other way. Had he witnessed an incorrect practice, he would have stopped it and explained the dangers associated with the incorrect procedure.
[42] Peter Saal was taken to Exhibit 4 which he confirmed depicted the rolling of RSJs in the Widgee workshop and the method of work. When taken to Exhibit 5 it was his evidence that the photographs were not of his workshop and the beams being turned were too large in size to be moved with a rollover bar and would have been moved with either a forklift or crane.
[43] He confirmed in 2012 there was a workshop employee by the name of Yari and his role did not include providing training.
[44] Under cross-examination, Peter Saal confirmed the rollover bar was in use in early 2012 and still being used today. If the rollover bar was pulled towards a person, due to "natural gravity" you would need to be "Hercules" to hold the rollover bar [Transcript p. 2-14]. There had been no training at Widgee on rollover bar use [Transcript p. 2-15]. He confirmed that as part of the induction he introduced the Appellant to staff including an employee named Yari and explained the Take 5 booklet but denied ever telling the Appellant to go through the booklet page by page (as all pages were the same) [Transcript p. 2-16]. The Take 5 booklets issued were never the subject of any inspection. The Appellant had never refused to sign a workplace agreement, it was just that he did not sign it [Transcript p. 2-17].
[45] Incident reports were required to be completed within 24 hours of an incident and it was the case neither the Appellant nor the Manager had filled in an incident report for 2 April 2012. Peter Saal, despite a claim for workers' compensation being approved, did not believe the Appellant had suffered an injury [Transcript p. 2-20]. Exhibit 4 was the current procedure for manual handling of RSJs with the evidence being this document was not in existence in 2012 and it should not have been necessary to explain the procedure to a person with 30 years experience in the industry [Transcript p. 2-22].
Simpson
[46] Simpson, a Boilermaker by trade, is currently a Manager at Widgee having been a Workshop Foreman in January 2012. In the course of his employment he had cause to use a rollover bar to turn RSJs up to five metres in length on many occasions and always pushed the rollover bar away from him as to do the opposite would be a "very dangerous method". He had never witnessed any other worker (including the Appellant, Yari or Emmerson) using any method other than pushing away. RSJs longer than 5 metres would be moved by other means that included cranes and forklifts. In January 2012 there were three forklifts and if they were being used people just found other work to do until they became available.
[47] He found the Appellant to be a competent, trade qualified Boilermaker and had allocated him the job of welding a staircase on 2 April 2012. On that day the Appellant had sought assistance from Simpson to pivot the staircase onto one side and at that time never mentioned any injury or pain. Some ten minutes or so after providing assistance, the Appellant approached him stating he had injured his back either rolling the staircase or welding and was going to his car to try and relax his back. Simpson offered him painkillers but he had his own. Later the Appellant had returned to the workshop to inform him he was going home and he was right to drive.
[48] On 30 March 2012 Simpson was in the Widgee workshop and he never noticed anything to suggest the Appellant had been injured, nor was he informed by him of having suffered an injury that day.
[49] A couple of months after 2 April 2012 the Appellant, in the company of someone from WorkCover, attended the workshop at which time he engaged the Appellant in conversation. The Appellant was alleged to have said "he couldn't understand why they wouldn't let him return to work and he said he'd been working on his farm without any issues and working on cars" [Transcript p. 2-29].
[50] Under cross-examination, Simpson acknowledged his participation in the rolling of RSJs depicted in Exhibit 4, further acknowledging there had never been any written policy or specific training provided at Widgee for the rolling of RSJs [Transcript p. 2-29]. Whilst there was no formal weight limit on RSJs to be rolled, those weighing more than 200 kilograms were not moved by one person however he accepted it was in the end up to the worker [Transcript p. 2-30]. The crane was regularly used to move the heavy RSJs.
[51] Simpson had worked with the Appellant for about three months and on many occasions had seen him using the rollover bar correctly [Transcript p. 2-31]. In a previous job Simpson had witnessed RSJs being turned the wrong way and that matter was quickly rectified [Transcript p. 2-33].
[52] In re-examination, Simpson's evidence was that as part of his trade training he was taught how to roll a RSJ [Transcript p. 2-35].
[53] On the Appellant's visit to Widgee with WorkCover, Simpson accepted the Appellant could have said "I've been fucking around on my cars and my farm" [Transcript p. 2-34].
Submissions
Regulator
[54] It was submitted that the only issue to be decided is whether the Appellant has satisfied the Commission to the required standard of proof that he suffered an injury at work on Friday 30 March 2012 which, according to the submission, he had failed to do.
[55] In terms of the evidence supporting the Appellant's story, it was said that Emmerson was a person not worthy of any credit at all. He had an extremely convenient recollection of the Appellant's visit to his home on one particular Friday remembering aspects of the visit that neatly "dovetailed" with what the Appellant had said, but could not remember with any detail a statement given to a Solicitor or whether he signed the said statement even though he acknowledged the giving of the statement was an unusual event in his life and likely to have been given in the last year. Yet he claims to remember relevant details and relevant details only of a conversation that took place a year and three quarters ago.
[56] Emmerson and the Appellant had been friends for six years, shared the hobby of shooting and it was the Appellant who had got him the job at Widgee where they travelled to and from work together as well as having lunch together. Emmerson was simply trying to help his mate to the point of claiming he had jarred his shoulder using the rollover bar in the same way as the Appellant. Emmerson never reported the incident to the supervisor.
[57] The evidence of Emmerson flies in the face of Simpson's evidence on the methods of rollover bar operation at Widgee and it is monumentally coincidental the only witness who claims to have used the same method as the Appellant happens to be his good, long-term mate.
[58] Dr Campbell's evidence, it was submitted, tended to indicate the Appellant's story is correct having said at the beginning of his evidence he was unlikely to suffer the injury he ended up with on 2 April 2012 in the absence of an injury suffered well within recent times prior to the incident. However, as his evidence went along, Dr Campbell acknowledged that the 2 April 2012 injury could have been suffered without there being a recent earlier injury. If such an injury could be suffered by a simple mechanism such as sneezing, coughing or rolling over, then common sense would indicate it could happen as a consequence of a 57 year old with a degenerative back repetitiously leaning over and bending backwards for three quarters of an hour as the Appellant had done on 2 April 2012.
[59] Dr Campbell had no knowledge of the bodily movement involved in rolling a beam towards the operator and certainly did not pretend to have any level of expertise about the manoeuvre or where the force would likely go, to the extent that from a medical perspective there is no medical evidence attempting to confirm the injury of 30 March 2012 happened.
[60] When the Appellant's evidence is looked at in totality, he should be considered to be a not reliable witness and a person demonstrably prone to exaggeration. There were questions regarding his account of the alleged injury on 30 March 2012 of continuing to weld, bending over and packing up whilst suffering back pain that had him so concerned he needed to rest all weekend and not meet a commitment to work at the social clubhouse, yet he made no mention of the occurrence of the injury to work colleagues or his supervisor. There was no suggestion that the 30 minutes he spent welding after the alleged incident had caused any increase in pain.
[61] The notice of claim prepared on behalf of the Appellant identified a number of physical activities the Appellant could no longer undertake yet it emerged during the trial that he had been shooting competitively once a month with his shooting club from June 2012 until the present. The detail regarding economic circumstances of the Appellant in the notice of claim was said to be grossly exaggerated, particularly in relation to past employment and purchasing of farms.
[62] The Take 5 booklet was not related to the issue before the Commission however the Appellant made a number of claims regarding the booklet yet he failed to take any steps in having evidence called from persons such as Josh Dean or Yari to verify his claims.
[63] The Appellant had failed to mention the incident of 30 March 2012 to his General Practitioner on 4 April 2012 as causative of his condition nor did he inform his treating Physiotherapist of that incident whilst undergoing 18 sessions of treatment. The first time he made any mention of the incident was to Dr Winstanley at a time the Appellant was particularly vague about in his evidence.
[64] The Appellant gave evidence of concerns he held about the methods relied upon using the rollover bar but never once raised with his supervisors that there was an alternative method. Both Peter Saal and Simpson gave evidence of RSJs being subject to between 160-200 rolls per day and neither saw an RSJ rolled using the method described by the Appellant.
[65] Jayne Boynton's evidence was not challenged in terms of what the Appellant had told her about the incident on 30 March 2012 because the fact he told her something did not mean those things happened. Her evidence around work undertaken on the farm (since 30 March 2012) by the Appellant as it related to the use of the tractor provided a different version to the notice of claim.
[66] It was submitted there was acknowledgement that Peter Saal was not an ideal witness for a number of reasons, however his evidence around the method of rolling beams was most important. Diane Saal was said to be an impressive witness and there was no apparent reason to disbelieve her evidence. Simpson was a very believable witness and was not a witness with any vested interest. He readily acknowledged the Appellant was a competent Welder and said quite praiseworthy things about him. The Appellant was comfortable in going to Simpson on 2 April 2012 to report his back was sore, yet earlier in the day when working with Simpson had made no mention of any residual back pain from the 30 March 2012 incident.
[67] It was finally submitted that the Commission could not be satisfied to the required degree from the evidence of the Appellant and the Appellant's witnesses that the incident took place on 30 March 2012.
Appellant
[68] There was no issue the Appellant was a "worker" in March 2012 in the employ of Widgee. The evidence of Dr Campbell was that he has a chronic soft tissue injury to his lumbar spine which has been assessed as a seven per cent whole-person impairment. Dr Campbell stated that if an accident occurred as described by the Appellant 80 per cent of the seven per cent whole person impairment is likely attributable to the incident on 30 March 2012 conceding that the incident of 2 April 2012 could be a stand alone event which could give rise to this sort of back problem.
[69] The Commission can be satisfied the Appellant was a worker and suffered an injury with the question then being did an injury arise out of or in the course of, employment on 30 March 2012 and whether employment was a significant contributing factor.
[70] For the Commission to reject the Appeal, there would need to be findings that:
the Appellant fabricated his story about what happened on
30 March 2012; Jayne Boynton and Emmerson lied to the Commission and are essentially complicit in an attempt by the Appellant to commit fraud by improperly having an injury accepted as a work-related injury; and alternatively as a secondary point the Appellant alone is a liar but decided to lie at a very early stage within 45 minutes of leaving work on 30 March 2012 when he arrived at Emmerson's house. [71] It is uncontested that the Appellant had a WorkCover claim accepted in respect to an accident on 2 April 2012 and that he received 18 sessions of physiotherapy. He had been sent to numerous doctors, including Dr Winstanely and Dr Cotton, and has lodged a notice of claim in relation to the 2 April 2012 incident. The only possible advantage to the Appellant in lodging a further notice of claim is it adds a potential common law claim but why would it be to his benefit to fabricate such a story.
[72] The Appellant was content with the claim for compensation arising from the 2 April 2012 injury and when he completed the paperwork for that claim he certainly did not ensure that the first incident was recorded in those records. It was some time later that he could identify two pain spots on his back of which one was relative to the 30 March 2012 incident and then it was some months beyond when Dr Winstanely inquired about his condition that the 30 March 2012 incident received overall consideration.
[73] The lay witnesses called on behalf of the Appellant were said to be truthful and credible. Jayne Boynton was not challenged on lying about the fact the Appellant had told her about the 30 March 2012 injury and if the Commission accepts that evidence then it should also accept her evidence that it was her and not the Appellant who carried out the fencing work on the property that weekend. She gave evidence on the Appellant believing he was right for work on 2 April 2012 which was entirely inconsistent with her being complicit in any fraud or inconsistent with the Appellant's want to perpetrate a fraud.
[74] The evidence of Emmerson was given in an environment where he freely admitted being a friend of the Appellant and the person visited by him on 30 March 2012. He had made the appropriate concessions when questioned and as a former employee of Widgee, was able to give evidence about the workplace. He was said to be a witness of credit.
[75] The submission was critical of the evidence relating to the Take 5 booklet and the fact that the booklet was distributed so the business could be seen to comply with workplace health and safety with not one of the Take 5 procedures handed into the office in four to five years. It was acknowledged that Diane Saal could have been the person who issued the Take 5 booklet to the Appellant. There was a reference at the back of the booklet about a procedure where incidents had to be reported, but this was not explained to the Appellant when he was given his copy.
[76] It was submitted that there should be no adverse finding about not reporting the incident of 30 March 2012 on that day or on the morning of 2 April 2012 because to the extent there was a policy and procedure it was confusing and was not being implemented.
[77] Other matters covered in the submission included:
there was no rollover bar procedure in place at the relevant time; induction given to the Appellant was very informal; the Appellant was introduced to co-workers including Yari; difference in the evidence around the number of toolbox meetings
between November 2011 and April 2012; and the Appellant admitted receiving documents about policies and
procedures, it was just a question as to when that occurred.[78] The Appellant and Emmerson's evidence was consistent regarding the method utilised in rolling RSJs, however it was said that Simpson was confused in his evidence about the procedure in terms of what was common practice and what he actually saw and did. There was no reason why the Appellant would fabricate the incident regarding the use of the rollover bar in a way other than he had been doing because he could still have suffered an injury that was capable of acceptance and there was no need to invent a different style of a workplace task.
[79] The submission responded to the challenges to the credibility of Emmerson's evidence and the Appellant's credibility regarding the notice of claim comments regarding his employability, and whether an entitlement existed for claim damages for doing work around his property. There was not overall enough evidence to make a call whether the notice of claim was an exaggeration but generally speaking it would not be the first time a claimant was accused of putting the best foot forward in a claim for damages.
[80] In closing, it was submitted if the Commission decided that the lay witnesses for the Appellant had not lied and with the Appellant were not complicit in committing a fraud, then the Appeal should be successful.
Conclusion
[81] There is no question that at all relevant times the Appellant was, for the purpose of s 11 of the Act, a "worker" and on the unchallenged evidence of Dr Campbell it is open to find that he suffered a personal injury in the form of a chronic soft tissue musculo-ligament injury to the lumber spine, however his evidence was less helpful regarding causation with his concession that he had no direct knowledge or understanding of the task relied upon by the Appellant as having been the causative of his injury and in fact based his opinion solely on a history provided by the Appellant.
[82] Therefore the only matter for determination in terms of this Appeal is limited to:
whether the personal injury suffered by the Appellant arose out of, or in the course of, his employment with Widgee on 30 March 2012 and if the employment was a significant contributing factor to the injury. [83] Factual matters that emerged in the course of proceedings were:
the Appellant commenced employment as a Boilermaker with Widgee in
November 2011; on 2 April 2012 whilst undertaking welding on a prefabricated staircase
he suffered an injury to his back that required him to cease work; the Appellant immediately advised his Supervisor (Simpson) in
accordance with company policy and procedure of the injury; the Appellant visited his General Practitioner on 4 April 2012 to seek
treatment for a lower back condition; the Appellant completed an application for workers' compensation whilst at the surgery on 4 April 2012 in which he identified 2 April 2012 (at 6.30 am) as the date of the compensatable injury and the claim was accepted; the Appellant underwent physiotherapy for his back condition, on 18 occasions, never once identifying a work-related incident on 30 March 2012 as causative of his injury; and on 11 December 2012 he signed two Notice of Claim for Damages forms
in which he nominated the events resulting in his "injury" as:
30 March 2012 (at approximately 11.00 am); and 2 April 2012 (at approximately 7.30 am). [84] With regards to the 30 March 2012 incident the Appellant relied upon his own evidence that such an event occurred with the only evidence of a corroborative nature coming from Emmerson and Jayne Boynton whose knowledge of the incident was totally reliant on the information said to have been provided by the Appellant to each of the witnesses on 30 March 2012. There is no dispute between the parties that the Appellant failed to report the incident to his supervisor in accordance with the "Widgee Engineering - Take 5" publication which under the heading of "Cardinal Safety Rules" on the back inside cover states:
"All incidents resulting in any personal injury, or damage to equipment, must
be reported to your supervisor (or another supervisor) immediately".
Whilst there is less than sufficient clarity as to when the Appellant was issued with the Take 5 booklet, the very worst scenario has him taking possession of the booklet well prior to the incident of 30 March 2012 and it is of fact that immediately upon suffering lower back pain on 2 April 2012, some three days beyond 30 March 2012, he did not hesitate to inform his Supervisor (Simpson) of the injury and the course of action he intended to take in resting in his car, later informing Simpson he was to leave site and journey home thus complying with policy and procedure.
[85] Emerson, whose evidence was strongly criticised by the Regulator in submissions was not only able to recall concisely a conversation with the Appellant on 30 March 2012 surrounding the circumstances leading to the Appellant's injury, but also gave evidence that whilst employed at Widgee he suffered a jarring of his shoulder when rolling an RSJ using the exact same method of work relied upon by the Appellant and he, like the Appellant, failed to inform a supervisor of that incident. In my view there was an air of convenience about the evidence given by Emmerson which did, as contended by the Regulator, appear to "dovetail" in to the version offered by the Appellant. In the proceedings neither offered a reasonable explanation for not reporting the incidents which in the case of the Appellant was even more curious in that he determined within a short time his level of pain was so serious that he would be effectively immobilised for the weekend ahead. It cannot be argued that Emmerson and the Appellant are "shrinking violets" as they were quite forthright informing Peter Saal shortly after the commencement of their employment of their intentions not to sign the workplace agreement on offer in its [then] present form.
[86] The method of work in respect of the operation of rollover bars is of some importance in this matter to the extent it is relied upon as being causative of the Appellant's injury on 30 March 2012. The Commission was afforded the opportunity to consider the method of work said to be in use at Widgee supported by the evidence of Peter Saal and Simpson as opposed to the method of work used by the Appellant and Emmerson which was depicted in Exhibits 4 and 5 respectively. There was acknowledgement by Widgee that no formal instruction was provided on how to operate the rollover bars with the argument being advanced that a trade qualified Boilermaker with 30 years experience as was the case with the Appellant, would have acquired that skill in the course of his previous employment with Simpson giving evidence that the turning of RSJs had been taught as part of his formal trade training.
[87] After careful consideration of both methods of work identified in the proceeding, I find it difficult to comprehend that a competent trade qualified tradesperson such as the Appellant would complete the task of turning an RSJ using the method of work described in Exhibit 5 as this method would significantly enhance the risk associated with the task. The evidence of Peter Saal and Simpson that the long established practice at Widgee has been to only turn RSJs relying upon the method of work as depicted in Exhibit 4 is preferred to the evidence of the Appellant and Emmerson whose evidence was highly questionable on this aspect of work.
[88] The Appellant, from the moment he advised Simpson on 2 April 2012 of having suffered an injury to his back, had been a model of consistency in terms of his reliance on the work-related event of 2 April 2012 being causative of his condition. In his application for workers' compensation (completed on 4 April 2012) he identified 2 April 2012 as the date of injury, in 18 sessions of physiotherapy and numerous visits to medical specialists at the behest of WorkCover, he never once deviated from 2 April 2012 as the date of injury. It was only at some unknown date Dr Winstanley, who was said to be "quite inquisitive" managed to draw out details of the 30 March 2012 incident, making a connection to his injury that had previously been only linked to the 2 April 2012 incident.
[89] I have concluded the Appellant has failed to establish, on the balance of probabilities, that whilst engaged in a work-related activity of rolling a RSJ using a piece of equipment identified in the proceedings as a rollover bar, he suffered on 30 March 2012 a compensatable injury, for the following reasons:
the Appellant's failure on 30 March 2012 to advise a supervisor of the incident or injury, said to be causative of the injury, casts in my view serious doubt upon his claim, particularly when measured against his response to the 2 April 2012 incident; the Appellant's version of events is uncorroborated with the only evidence supporting his claim being from Emmerson and Jayne Boynton whose evidence if accepted, at best only reiterated what the Appellant was said to have told them on 30 March 2012; the Appellant neither contemporaneous to the injury and or in the period of time following made mention of any event causative of his condition other than 2 April 2012; and the method work said to be causative of the injury alleged to have contributed to the 30 March 2012 incident is at complete odds with the accepted evidence from Peter Saal and Simpson as to the method of work commonly adopted in the workplace and I doubt whether an experienced Boilermaker such as the Appellant would have utilised such an obvious inferior and potentially dangerous method of work. [90] Consequently I have determined there was no incident on 30 March 2012 as alleged by the Appellant.
Finding
[91] On consideration of the evidence, material and submissions before the proceedings, I make the following finding:
the Appellant was, pursuant to s 11 of the Act, a "worker" at all relevant
times; the Appellant suffered a personal injury in the form of a chronic soft
tissue musculo-ligament injury to the lumber spine; and
the personal injury did not arise out of, or in the course of, his employment with Widgee on 30 March 2012 and consequently the employment was not a significant contributing factor to the injury.
[92] The Appeal is dismissed and the decision of Simon Blackwood (Workers' Compensation Regulator) of 28 May 2013 is confirmed. The claim is not one for acceptance.
[93] The Appellant is to pay the Regulator'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.
[94] I order accordingly.
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