Cowley v Urunga Bowling Club - [2011] NSWWCCPD 69

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Cowley v Urunga Bowling Club [2011] NSWWCCPD 69
APPELLANT:		Helen Cowley
RESPONDENT:		Urunga Bowling Club
INSURER:		CGU Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-1680/11
ARBITRATOR:	Mr W Dalley
DATE OF ARBITRATOR’S DECISION:		7 June 2011
DATE OF APPEAL DECISION:		6 December 2011
SUBJECT MATTER OF DECISION:		Weighing credit findings with objective facts; adequacy of reasons
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Leitch Hasson & Dent
Respondent:	Rankin Nathan Lawyers
ORDERS MADE ON APPEAL:		1. The Arbitrator’s decision of 7 June 2011 is revoked. 2. The matter is to be referred to another Arbitrator for re-determination. 3. The respondent employer is to pay the appellant worker’s costs of the appeal.

BACKGROUND

The appellant, Mrs Cowley, commenced employment with the respondent, Urunga Bowling Club, as a casual bar attendant on 4 July 2002. On 12 September 2005, she was made permanent relief supervisor and worked an average of 28 hours per week.
Mrs Cowley’s duties as a bar attendant included serving patrons, mixing and serving drinks to order, and changing the kegs of beer and moving them around when they needed to be changed. When she became relief supervisor, her duties included the efficient operation of the bar, gaming and cellar areas, and supervising staff.
Mrs Cowley claims that she injured her back carrying out a range of duties, including lifting trays of glasses, lifting packs of beer, moving gas cylinders, and moving and tapping kegs of beer.
On 19 February 2007, Mrs Cowley sought advice from her general practitioner, Dr Ronthal. There is no report from Dr Ronthal in evidence but his treatment notes at that time recorded the history of “[m]uscle strain” while “lifting at home doing renovations”.
In late 2007, Mrs Cowley began to experience pain in her back after working. The pain was relieved by medication and rest. On 15 November 2007, she awoke in severe pain in her lower back. Mrs Cowley continued working for fear of losing her job. However, the pain gradually became more severe.
On 4 November 2008, Mrs Cowley resigned her position as relief supervisor, to obviate the obligation to undertake some of the heavier duties associated with being a supervisor, but she continued working as a permanent part-time bar attendant.
On 14 January 2009, Mrs Cowley underwent a CT scan, which demonstrated a disc protrusion at the L4/5 level.
Mrs Cowley has been off work since 16 January 2009, following an application for leave without pay due to “medical problems”.
On 5 June 2009, she submitted to a laminectomy and discectomy procedure. The surgery was initially successful, but a bout of coughing led to further symptoms.
On 7 June 2010, Mrs Cowley’s solicitors made a demand on her behalf for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in the sum of $23,100, representing a 15 per cent whole person impairment. She also claimed $25,000 lump sum compensation, representing 50 per cent of a most extreme case under s 67 of the 1987 Act, and weekly payments at the rate of $650 per week from 16 June 2009 to the present and continuing.
In contravention of s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the employer’s workers compensation insurer, CGU Workers Compensation (NSW) Ltd (CGU), failed to issue a notice to the worker stating its reasons for disputing liability.
On 28 February 2011, Mrs Cowley lodged an application in the Commission. She claimed compensation in accordance with her solicitor’s letter of demand. She stated that she injured her lower back on 15 November 2007 in the following circumstances:
“The claimant was required to lift heavy boxes such as trays of drinks, move full kegs of beer and other heavy activities, causing her to injure her back.”
On 21 March 2011, the Club filed a Reply. It denied liability for several reasons:
(a)     it had never received proper notification of the applicant’s claim;
(b)     the claim was not brought within the time limit prescribed by s 261 of the 1998 Act;
(c)     the worker did not suffer an injury to her back arising out of or in the course of her employment, as required by s 4 of the 1987 Act, and her employment was not a substantial contributing factor to any such injury as required by s 9A of the 1987 Act;
(d)     the worker was not incapacitated and suffered no economic incapacity arising from the alleged work injury;
(e)     any injury suffered by the worker occurred when she was renovating her home in 2007;
(f)      the histories obtained by Drs Powell and Bodel with respect to the history of her back injury were incorrect.
On 30 May 2011, an Arbitrator conducted an arbitration hearing at Coffs Harbour.
An application by Mrs Cowley’s counsel for her to give further oral evidence concerning her work duties was refused on the basis that leave had been granted at a teleconference for an additional statement to be filed in answer to the statements attached to the Reply on that issue. Pursuant to the leave given, an additional statement was filed concerning the worker’s duties.
The Arbitrator permitted the respondent’s counsel leave to cross-examine Mrs Cowley on the basis that its submissions were based in part on the worker’s credit. Mrs Cowley’s counsel was permitted to ask questions by way of re-examination in respect of matters arising from the cross-examination. No other oral evidence was adduced. The Arbitrator reserved his decision.
On 7 June 2011, the Arbitrator delivered a reserved decision in which he found in favour of the employer. He was not satisfied that Mrs Cowley had discharged the onus of proving that her work duties caused or aggravated her back condition or that her work duties were a substantial contributing factor to the alleged back injury. A detailed Statement of Reasons accompanied the Certificate of Determination.
Mrs Cowley has appealed the Arbitrator’s decision.

PRELIMINARY MATTERS

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act.

Monetary threshold

I am satisfied the monetary thresholds required by s 352(2) of the 1998 Act are satisfied.

Time

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     failing to give proper reasons as to why he found employment was not a substantial contributing factor;
(b)     failing to give reasons as to why he preferred the evidentiary statements of the Club’s witnesses rather than the oral evidence and written statements of the worker “where it conflicts”;
(c)     failing to give reasons as to why he considered the history given to Dr Hopcroft and initially to Dr Powell of “heavy work tasks” was “not established”, bearing in mind the Arbitrator’s finding of the facts in favour of the worker;
(d)     failing to give reasons as to why he did not consider the work identified by him as being performed by the worker ([55]–[56]) could not be regarded as a substantial contributing factor;
(e)     admitting into evidence over objection the supplementary report of Dr Powell. In the alternative, giving undue weight to the report;
(f)      failing to accept the opinion of Dr Hopcroft when it was open on the evidence to accept it;
(g)     permitting cross-examination of the worker on the issue of the income protection policy, which was irrelevant to the issues. Having permitted the cross-examination in relation to the issue, the Arbitrator erred in taking that evidence into consideration against the worker with respect to credit;
(h)     asking the wrong question when considering the issue of injury, making findings in relation to whether or not the work was “heavy”, rather than whether or not the work performed by the worker was capable of causing an injury within the meaning of the Act.
In her written submissions, the worker alleged the Arbitrator erred in failing to allow her to give oral evidence in relation to the issue of injury, her credit, her work duties, and allegations of her failure to report the injury, in light of the admission into evidence over the objection of the supplementary report of Dr Powell. The worker also alleged the Arbitrator failed to give adequate reasons for the refusal. Both submissions was abandoned at the hearing of the appeal.

THE EVIDENCE

Helen Cowley

Mrs Cowley’s evidence is set out in a statement dated 5 December 2010. Mrs Cowley is 58 years of age. She described her duties as a bar attendant, which included serving patrons, mixing and serving drinks to order, changing the kegs of beer, and moving kegs when they needed to be changed. She said the process of changing the beer kegs was rushed. When she became the relief supervisor, her duties included ensuring the efficient operation of the bar areas, gaming areas and the cellar, which again included changing of the kegs when and if needed, and supervising staff.
When opening the Club on weekends, with a co-worker, Mrs Cowley was required to balance the previous day’s takings, prepare the banking, and organise the tills, keno and cash floats for the day’s trade. She was required to carry large plastic containers of 1,000 one-dollar coins out to the bar and lift them up above her head to empty them into a one-dollar coin dispenser. She was required to position 53 high-backed stools in front of the poker machines, prepare the bar, re-gas the beer kegs and remove empty kegs from the line-up. From 9.55 am, her co-worker would be positioned at the front door of the Club as the door person, and Mrs Cowley went about her duties until 11.30 am to midday, when the next staff member was rostered to start his or her shift.
Mrs Cowley stated that part of her duties when opening the Club involved going down into the cellar to clean out the cellar, which involved moving full kegs forward in their stock lines so as to make room at the back for incoming deliveries. Another duty at the end of the shift involved removing all empty beer kegs from the cellar and placing them outside on a loading bay. On Friday afternoons, she was required to collect the “back-up kegs” for the most popular beers. This involved moving full kegs of beer around. Often, she had to do this work alone, as there was no other staff member to assist.
Mrs Cowley said that she is five feet tall and weighs 43 kg. She stated that she struggled to move the kegs around without assistance. Her duties also required her to manoeuvre and move large gas bottles used to operate the soft drink machines. She stated that she was unable to get assistance, as she often worked in the bar on her own.
When not serving behind the bar, Mrs Cowley was required to ensure that the coin machines were full, and that involved carrying around a large plastic container of one-dollar coins. She was required to lift and carry cases of beer and re-stock the fridge. She also collected glasses and carried them on a tray, placing them into a dishwasher, and then into a chiller machine.
Mrs Cowley stated that, once weekly, she was involved in removing all of the glasses from the fridges to scrub and clean them. This work, she said, was very heavy as it required all the trays of glasses in the Club to be carried to a dishwasher to be washed, and then replaced in the fridges. She often did that work alone and stated, “I would have sore muscles and would need to take painkillers to relieve the pain” after this activity.
On Wednesdays, Mrs Cowley opened the bar herself and she was the only rostered staff member. “The boss” advised that other staff would not be required, as he was there to help if needed. However, Mrs Cowley said that he would often be busy or on the phone, and unable to assist.
When there were functions at the club, Mrs Cowley was required to carry large trays of beer out on to the bowling greens over a five-hour period. She said that the trays at times were very heavy. She would repeat the tasks on several occasions during any one shift.
Mrs Cowley stated that, after a heavy day at work, her back would feel sore and stiff. She took pain-relieving medication such as Panadol and went to bed early to get some relief. She said that the pain would come on intermittently, but she said, “After a while of working, it started to become a more common occurrence”.
Mrs Cowley stated that, in or about November 2007, she awoke one morning with severe back pain. She said:
“I had felt a small pain whilst I was at work. However, I did not stop to think about it, as we were extremely busy. I was normally rostered on to work on my own and was usually very busy, and did not have the time to sit down or take much notice of the pain.”
Mrs Cowley stated that, at work the following day, she mentioned it to a couple of people, and complained that her back was stiff and sore. She said that she continued working because she was concerned that, if she took too much time off work, she would lose her job. She was conscious that living in a small town would make finding alternative employment very difficult.
Mrs Cowley described the pain she felt as a dull ache. She thought that she must have lifted something too heavy or moved the wrong way, and had pulled a muscle. However, over the next couple of weeks, the dull ache gradually became worse and eventually the pain radiated down into her buttock and left leg.
Mrs Cowley continued to work during this time because she needed money to live on and was concerned about losing her job. She said that she felt confident with the advice that she was getting from her general practitioner, Dr Ronthal, and accepted his advice that there was nothing seriously wrong.
By January 2008, Mrs Cowley reported to Dr Ronthal that she was having pain in the right hip and leg. Despite her request, Dr Ronthal refused to refer her for any radiological investigations.
After 12 months of continuing lower back and left leg pain, Mrs Cowley demanded Dr Ronthal refer her for tests. On 14 January 2009, she underwent a CT scan which demonstrated significant pathology in the lower back. Dr Ronthal then referred her to an orthopaedic specialist. The specialist she was referred to declined to accept patients with spinal injuries. Rather than return to Dr Ronthal, Mrs Cowley consulted a different general practitioner, Dr Kumar. Dr Kumar initially referred Mrs Cowley to a physiotherapist, but subsequently referred her to Professor Marcus Stoodley, neurosurgeon.
Mrs Cowley was examined by Professor Stoodley on 15 May 2009. He recommended that she have surgery. He performed an L4/5 laminectomy and discectomy procedure at the Baringa Private Hospital on 5 June 2009. Mrs Cowley felt significant improvement immediately following the surgery. When reviewed on 7 July 2009, she maintained significant improvement in the back and the resolution of the sciatic pain.
After the consultation with Professor Stoodley on 7 July 2009, Mrs Cowley caught the flu and was coughing repeatedly. She developed a recurrence of the pain and the left-sided sciatica, as well as pain in the right leg.
By the time Mrs Cowley ceased work on 16 January 2009, she was in severe pain. By then, she was unable to complete her shifts. She said that the pain was so severe that, some mornings when she woke up, she would need to crawl to the shower. The pain had got to the point where she was unable to lift any heavy items or to do the heavier work at the Club, including changing the kegs, as that activity caused severe pain. She added that, at times, she was unable to stand up because of numbness in her feet.
Mrs Cowley has not returned to work and regards herself as totally incapacitated.

Thane Duncan

Mr Duncan has been the chief executive officer of Urunga Bowling Club Ltd since June 2005. Since then, he has been Mrs Cowley’s overall supervisor.
Mr Duncan stated that Mrs Cowley’s duties as a bar attendant were as set out in her job description. He said that she had never been expected to lift or move full kegs of beer as part of her duties. He added that there was no doubt that she may have changed an occasional keg of beer over from time to time. He estimated that a full keg of beer weighed in the vicinity of 50 kg and, as such, it is impossible for a person to lift.
Mr Duncan described Mrs Cowley’s work performance as excellent, as was her attendance.
Mr Duncan said that he received a letter dated 20 March 2009 from Mrs Cowley requesting leave without pay from 23 March 2009 until further notice, as a result of back problems. He said, “At no time was I made aware of her suffering a work-related injury in regard to her ongoing back problems”. He said that his first notification of Mrs Cowley suffering an injury to her back in the workplace was when he returned from two weeks’ annual leave on 16 November 2009, when he discovered a workers compensation claim form on his desk which had been completed by Mrs Cowley. He called Mrs Cowley and indicated surprise that she had made a claim for workers compensation and that she had sought legal representation. He said that he would report the matter to “workers compensation” (I infer to the workers compensation insurer), but he would not sign it as he did not agree that she had reported an injury at work. He confirmed that Mrs Cowley’s hourly rate of pay was $16.75 per hour Monday to Friday.

Susan Brown

Ms Brown has been employed by the Urunga Bowling Club since 24 April 1995. She is currently a bar supervisor and has been for the last nine years. She manages three or four staff, one of whom was Mrs Cowley. She is a permanent employee of the Club and works 38 hours per week.
Ms Brown said that, over the past nine years, she had worked alongside Mrs Cowley as her direct supervisor when she was on the same shift. She described Mrs Cowley as competent and reliable.
In her statement dated 4 February 2010, Ms Brown said:
“I first became aware of Helen suffering from back pain at least six years ago. I believe she told me at that time that she suffered from sciatic pain. She always appeared to be doing too much too fast, which applied to both her working life and her private life. She was a person who could not keep still. I recall that when she undertook renovations on her home she continually complained of suffering from back pain as she described her work at home as lifting heavy bits of timber and carrying out painting work. At no time did Helen ever state to me that her back pain was as a result of carrying out her duties in the workplace. In fact, I recall at one stage during a conversation we had I actually asked her whether she had injured her back at work and she stated without hesitation that she never had. The only task I recall her blaming for her sore back was when she was renovating. However, as previously stated, I was aware that she suffered from back pain prior to her carrying out the renovations.”
Ms Brown added;
“Helen’s duties as a Bar Attendant in my opinion, as I carry out the same work, does not involve any work I would consider heavy work. Helen’s duties for the club have never involved lifting full kegs of beer or for that matter moving heavy kegs of beer on an ongoing basis. The change over of empty kegs to full kegs was mostly carried out either by a male staff member or one of the supervisors and in this regard I have never witnessed Helen Cowley lifting or moving a full keg of beer in the cool room.”
Ms Brown reiterated that no member of the Club’s staff is expected to lift and carry full kegs of beer and she had never instructed Mrs Cowley to do so. She said that it was rare for kegs to run out as they were closely monitored throughout the day and night by supervisory staff. She added that there were usually two staff members rostered on the bar.

Ms Brown further stated:
“At no time did Helen ever make an official complaint to me about her sustaining a back injury in the workplace nor has any other staff member informed me that this was the case.
As part of the club’s OH&S policy there is a tool box form that all staff members are required to record any club or staff business on. I am not aware of Helen making any record of any workplace incident she may have been involved in, in relation to her alleged back injury.”
At no time prior to Helen presenting Thane Duncan with a workers compensation claim form was I aware of her intention to claim workers compensation or that she had ever sustained a back injury in the workplace.”
Ms Brown expressed the opinion that Mrs Cowley’s claim for compensation is false.

Pamela Mitton

Ms Mitton has been employed by the Club since December 1990. She has been a supervisor for 10 years. She said that, in her capacity as Club supervisor, she manages the entire staff, with the exception of the CEO. She said that she generally works 30 hours a week.
Over the past 10 years, Ms Mitton said that she had worked alongside Mrs Cowley as her direct supervisor. She also described Mrs Cowley as competent and reliable. She described Mrs Cowley’s duties as a bar attendant as including customer service and cleaning duties, which involved picking up empty glasses from the bar area, wiping tables down, emptying ashtrays and tidying chairs. Her bar duties involved washing glasses, cleaning behind the bar (dusting), removing trays of glasses, and placing them in a chiller. She said that she had completed the same tasks herself and did not consider them to be heavy. The heaviest aspect of the work was carrying the trays of glasses, with a maximum of 20 schooner glasses.
With respect to the trays of glasses, she described the procedure as placing the trays of glasses into a glass washer, and removing and returning them to the racks after washing. She said that she had no knowledge of the exact weight of a full tray of glasses.
Ms Mitton stated that staff members are not required to lift or carry full kegs of beer. She said that, when kegs run out, staff members are expected to inform the supervisor who, in turn, is required to change the empty kegs for a full one. The process involved disconnecting the gas lead, taking off the drop lead, and removing the empty keg by leaning it over and rolling it on its base as a pivot. The empty keg is then moved to the outside for later removal, and a full keg is tilted and rolled on its pivot, as previously described, a maximum of one metre into position. Ms Mitton stated that she had never instructed Mrs Cowley to lift or move kegs of beer in the coolroom. She added that, as a general rule, the coolroom was maintained by her. She monitored the kegs at the beginning and throughout each shift.
Ms Mitton stated that she recalled learning for the first time that Mrs Cowley was suffering back pain some time in 2008, when she was renovating her home. She said that she understood Mrs Cowley was carrying out painting work, which she recalled was the reason for her sore back. She added that, other than that complaint, she did not recall Mrs Cowley making any other complaints to her about suffering from a sore back.
Ms Mitton also stated that Mrs Cowley had never made “an official complaint” about sustaining an injury at work, nor had any other staff member informed her that this was the case.

Douglas Cowley

Mr Cowley is the husband of the applicant, Helen Cowley. Mr Cowley stated that, between November 2006 and April 2007, their home was undergoing renovations. He said that he completed the majority of the house-painting, and cleared and removed all the rubbish on site. Mrs Cowley did some minor painting on three window frames and two double glass door frames. He said that he did not see her do anything physical, such as lifting heavy objects.
Mr Cowley stated that, during this time, Mrs Cowley only complained of some minor aches and pains to her back. He said that, prior to the subject accident, he had not seen Mrs Cowley in much pain and had not seen her take medication for back pain during this time or at any other time prior to the subject accident.
In or around November 2007, Mrs Cowley began suffering severe back pain. Mr Cowley said that it was so severe that she had to lie down on the floor in order to try to relieve the pain. She informed him that she had hurt herself at work that day. She said that she had noticed the pain increase throughout the night and especially when she was required to lift and move heavy objects.
Within a couple of days, Mrs Cowley informed Mr Cowley that she had reported the back injury to her supervisor, Sue Brown. He said that Ms Brown and Ms Mitton had told his wife that her hours would be cut back if she reported the injury and, because of that advice, she did not report the injury.

Giani Mazzon

Mr Mazzon was a bartender at the Urunga Bowling Club from April 2007 until August 2008. During that period, Mrs Cowley was a bar manager.
Mr Mazzon stated that, as bar manager, Mrs Cowley was required to change beer kegs. He witnessed her performing that task. He described the process, which involved Mrs Cowley disconnecting the empty beer keg and rolling it on the floor over to the corner of the coolroom with all the other empty kegs. Mrs Cowley would then replace the empty keg with a full one. This was also done by rolling it across the floor to reconnect it. In circumstances when the full beer kegs were stacked on top of each other, she would be required to manoeuvre the full beer keg off from the top of the other keg onto the floor and then roll it to where it could be connected.
The frequency with which the beer kegs were changed depended upon how busy the Club was. Mr Mazzon stated that it was not uncommon for Mrs Cowley to be required to change the kegs up to four times a night on weekends. Mr Mazzon stated that Mrs Cowley had told him on numerous occasions that she had complained to management regarding the heavy nature of the work involved in changing the kegs and, notwithstanding her requests, Mr Mazzon had never been taught how to change the kegs which, according to him, would have been much safer, as he was 6’2” in height and weighed 90 kg.
Mr Mazzon stated that he often worked with one other bartender, Magdalena, and the rostered bar manager was usually Mrs Cowley. On those occasions, Mrs Cowley changed the kegs because neither he nor Magdalena was trained to do it.
Mr Mazzon stated that, in around November 2007, Mrs Cowley informed him that she had hurt her back at work. He said that he had never heard her make any complaint of back pain prior to November 2007.

Mrs Cowley’s further evidence

Pursuant to leave given by the Arbitrator at the teleconference on 5 April 2011, Mrs Cowley submitted a further statement dated 10 May 2011. Mrs Cowley stated that, following the injury at work in November 2007, she had a rostered day off. She was in severe pain that day and unable to get out of bed. She returned to work the following Friday. She had a conversation with Sue Brown, the bar supervisor, and told Ms Brown that she intended to report an injury due to all the awkward and heavy lifting she was required to do in her everyday duties.
Mrs Cowley said that Ms Brown responded with words to the following effect:
“Helen, you have to be fucking idiot if you write that you have pulled a muscle moving kegs or lifting anything in the incident book, [Thane Duncan] will cut your hours down to the minimum eight hours. Tim wrote he pulled a muscle moving kegs and he was taking a beer delivery on cellar duty. He hasn’t been given that shift again and his hours dropped to the minimum or fucking-well near. He did it to Tim and he’ll do it to you, you’ll be cutting your own throat. Pam will be in later, tell her and ask her what she reckons.”
Mrs Cowley informed Pamela Mitton of the discussion with Ms Brown, to which Ms Mitton said:
“I totally agree with Sue, look at it this way, the minute you write in the incident book you become a liability to Thane, hence the minimum hours. You are better off not letting him know at all, besides a pulled muscle heals within a couple of weeks. Tim suffered for months, it will affect Susan’s and my rosters with you getting minimum hours. We won’t get our weekends off and I’m having enough marriage problems without that.”
Ms Mitton walked off without providing Mrs Cowley with access to the incident book.
Mrs Cowley states that, due to the advice that she received from both Sue Brown and Pamela Mitton, she felt unable to formally report the incident at that time.
Mrs Cowley stated that she was in severe pain throughout 2008 and 2009. Because of her continuing symptoms, she decided to seek a second opinion from Dr Kumar, general practitioner, who suggested to her that she should complete a workers compensation claim form. She submitted a claim form on 10 November 2009 to Pamela Mitton, in the absence of Thane Duncan, who was on leave.
Mrs Cowley says that the reason for the late lodgment of the claim was due to the advice that she received from her supervisors. She added “I was merely following the instructions”.
Commenting on Pamela Mitton’s statement, Mrs Cowley stated that, over the years that she had worked with Ms Mitton, for three of those years, Mrs Cowley worked as the relief supervisor. Mrs Cowley worked on weekends when Pamela Mitton was on leave and during periods of annual and sick leave. In reference to Ms Mitton’s statement that she had never seen Mrs Cowley moving beer kegs, Mrs Cowley states that, in fact, it was Ms Mitton who taught her how to change kegs as a bar attendant. During the period when Mrs Cowley was relief supervisor, Ms Mitton would not have been on duty and could not have witnessed the tasks performed by her.
Mrs Cowley rejected Ms Mitton’s evidence regarding the heavy nature of the duties performed by her. Mrs Cowley stated that her duties as a relief supervisor involved carrying cases of beer from the coolroom while manipulating a heavy metal security door and finally placing the cartons on a high bar while serving customers. She added that her duties also involved lifting the one-dollar coins, which weighed 9 kg, at head height and pouring them into a coin dispenser, carrying large water bottles to the water cooler, and stacking outdoor furniture inside the Club each night.
Mrs Cowley commented on Mr Thane Duncan’s statement where, at [14], he noted that bar staff are not expected to lift and carry full kegs of beer. Mrs Cowley agreed with that. He clarified that her duties required her to move kegs of beer and only lift an empty keg of beer. She reiterated that there were always kegs which required to be changed, especially on Saturdays and Sundays.
Mrs Cowley attached a letter from Ms Lyn Humphries dated 19 November 2009 to her supplementary statement. She drew attention to the statement of Ms Humphries to the effect that she (Ms Humphries) worked with Helen Cowley at the Urunga Bowling Club. She said:
“It was the duty of working staff to replace kegs when empty with full ones. Helen Cowley by doing her duty replaced kegs and lifted empty ones to the area set aside for them.”
Mrs Cowley stated that there was a daily roster sheet with a list of duties to be done for each day. The duties of the roster sheets included the requirement to take empty kegs outside every night.
With respect to her requests for leave without pay in March 2009, Mrs Cowley stated that Mr Duncan instructed her to write to him requesting leave without pay. She stated that he “more or less dictated to me what to say”. As she had exhausted her sick and holiday pay, she felt she had no other choice.
In reference to Mr Duncan’s statement to the effect that Mrs Cowley’s position at the Club had never been in jeopardy, she stated that, on one occasion (on a date that was not provided), she had a conversation with him and was informed by Mr Duncan that, if she could not go back to work performing her pre-injury duties, she would lose her job.
Responding to allegations that her injuries were due to renovations at her home, Mrs Cowley said:
“Renovations to my home were done by builders, Stovin & Noonan, from November 2006 to 3 April 2007. The work which I performed during my renovations were [sic] very minor and consisted of painting only three window frames and two double glass door frames. I saw Dr Ronthal after renovations, although the insignificant minor work I had been performing at home were [sic] not as physical as the daily duties I was performing at work. It was so insignificant that I was not prescribed with any medication nor did I require any days off during this time. The pain resolved and I was able to perform my normal duties during that time up until the subject accident.”
Mrs Cowley stated that her average earnings amounted to $650 gross per week.
Mrs Cowley gave oral evidence at the hearing. She agreed in cross-examination that she provided no reason to her employer when she resigned from her position as a supervisor in November 2008. Mrs Cowley agreed that, when she went on extended leave in March 2009, she made no mention of an injury to her back, but stated that she believed her employer knew she was going off to have surgery on her back in June 2009 (T13.29). She added that Mr Duncan “more or less” dictated to her what to include in the letter. Mrs Cowley was adamant that she reported her injury to her supervisors a couple of days after it occurred, and maintained that Susan Brown and Pamela Mitton advised her not to report the injury as it would result in her losing allocated hours and loss of pay.
Mrs Cowley rejected the proposition that she injured her back at home lifting building materials when renovating her house. When directed to Dr Ronthal’s note of 19 February 2007, Mrs Cowley said:
“Yes I have read that and it also reads at the bottom that it's getting better, that I told him it was getting better.”
Mrs Cowley rejected the proposition that her report of the conversations with Susan Brown and Pamela Mitton was untrue. When pressed about why Mrs Cowley did not report her injury initially, she said (T15.52):
“Because I still hadn't any idea that I was going to have an operation or anything like that was happening at that time. Dr Ronthal was just giving me certificates and medications and sending me back to work.

I just thought that if I took half of the pressure of counting all of the safe monies and carrying around those and the pressure of having to be – it was getting so bad that I worried that I was going to be able to open the club in the mornings. I had the keys and I was worried that I would not be able to be there one morning.

So that was one of the reasons I resigned that position, to get rid of that stress and to stop having to carry all the heavy coinage from the safe and counting those things.”

Mrs Cowley stated in evidence that she worked most weekends because that was the time other staff had off work. Mrs Cowley disagreed that her job description did not require moving full kegs of beer. She added that the supervisor’s job description included cellar duties.
Mrs Cowley was asked about her claim for benefits from an income protection insurance policy with CommInsure. She was asked at T20.15 whether she mentioned her back injury being work-related to CommInsure. The worker said at T20.17:
“No, because if I would have I wouldn't have been able to claim any income protection and I felt that I was in a bad enough position as it was by taking my supervisors' advice not to write it in the incident book.”
Mrs Cowley disagreed with the proposition that she did not tell Dr Kumar that she had injured her back when she first saw him on 23 January 2009. She said:
“I told Dr Kumar what I'd been through in the last 12 months and I do believe that I probably mentioned it was from work.”
Mrs Cowley positively disagreed with the proposition that she was not required to move kegs of beer as part of her duties. She said at T27.55 that she moved and changed kegs since she started work in 2002. She added, “I don't know why I was taught how to do it if it's not on my job description”. At T28.15, Mrs Cowley said:
“Well the staff, they're saying that only supervisors change the kegs. I'm sorry, that isn't correct. Whoever is there and the beer runs out changes the kegs if they can do it. If they don't know how to do it they will then ask someone who does know how to do it to do it for them. I used to just – it was part of my duties to do it. It was just something that I was taught to do when I went there. I thought it was always part of my job.”

Susan Brown’s further evidence

In response to Mrs Cowley’s further statement of 10 May 2011, Ms Brown provided a further brief statement. She said:
“In paragraph 1 of the Further Statement, Mrs Cowley makes allegations in relation to a conversation that we were alleged to have had at work in November 2007. I deny that such a conversation took place. I confirm that Mrs Cowley never made any complaints of suffering an injury to her back in the course of her duties at the club and never requested the incident book.
If Mrs Cowley had reported suffering an injury in the course of her duties, I would have advised her to write it up in the incident book then it would have been reported to management.”

Attempts to obtain further evidence from Pamela Mitton

An unsuccessful attempt was made to obtain a further statement from Ms Mitton in response to the worker’s statement of 10 May 2011. In a statement by Marie Rafferty dated 24 May 2011, Ms Rafferty stated that she is an administration employee employed by the Club. She stated that Ms Mitton was currently on leave and was not due to return to work until Monday 30 May 2011.

Other evidence

The job descriptions for the positions of “Bar Attendant” and “Trainee/Relief Supervisor” are in evidence. Both describe the duties and responsibilities of the respective roles in general terms. Relevantly, however, the responsibilities of the trainee relief supervisor include “Ensuring the efficient operation of designated areas eg bar areas, gaming areas, cellar, reception etc”.
A handwritten treatment card from Dr Ronthal is in evidence. His handwriting is difficult to decipher. There are four entries on the handwritten card. The first two appear to relate to some incident at work in 2006, where the worker “caught [illegible] on a door at work”. A further injury of November 2006 appears to report “no fracture”.
Dr Ronthal issued a series of regular medical certificates commencing on 11 January 2008. That is, the certificates were not issued on the WorkCover approved certificate. He certified her unfit for work for one day, stating that she suffered from back pain. He again certified her unfit from 14 January 2008 to 18 January 2008 and a single day on 23 January 2009. There is no medical report in evidence from Dr Ronthal to explain the history he obtained or his opinion.
On 17 February 2007, Dr Ronthal reported “[illegible] lifting at home doing renovating. Getting better. 90°SLR bilateral? Muscle strain. To use commonsense lifting”.
On 11 January 2008, Dr Ronthal’s handwritten notes record “muscle strain of lower back, no injury SLR 40 [illegible]”.
On 14 January 2008, Dr Ronthal’s locum, Dr McClure, recorded “lifting tray of glasses at work at bowling club sore back. Bilateral [illegible] radiation. Not improving with conservative treatment”. The rest of the entry is illegible.
Dr Ronthal’s printed record, on 31 July 2008, noted a history of “affected joint details, lower back pain radiating down left leg …”. Various other entries throughout 2007 and 2008 are for unrelated medical conditions.
On 10 October 2008, Dr Ronthal’s notes record “back pain muscular”.
On 4 November 2008, Mrs Cowley wrote to the CEO of the Club, Mr Duncan, and resigned her position as relief supervisor. Her note read:
“I hereby tender my resignation for the positions of Relief Supervisor and OH&S Officer, effective from today, 4 November 2008.
I wish to retain my position as a permanent/part time bar attendant.”
No other explanation was offered in the letter. However, Mrs Cowley said in evidence (T15.52) that, at that time, she was still unaware that she would need an operation and she believed that, if she could relieve herself of the duties associated with counting the safe monies and the stress of carrying the heavy coins, she would be able to keep working.

On 1 December 2008, Dr Ronthal recorded “left sciatic possible … for CT actions”.
An entry in Dr Ronthal’s notes on 16 January 2009 records, as the reason for contact, “lumbar disc protrusion L4/5”.
On 19 January 2009, Mrs Cowley underwent a CT scan of the lumbar spine. Dr Richard Welshman, who performed the scan, reported:
“At the L4/5 level on the left, there is a left paracentral and left foraminal disc protrusion extending into the lateral recess of L5 effacing the traversing about to exit left L5 nerve root.
At the L5/S1 level, there is a fairly shallow central and slight paracentral disc protrusion which does not appear to have any significant effect on the exiting or traversing nerve roots, just marginally touching the anterior aspect of the traversing about to exit right S1 nerve root. I note there are no right-sided symptoms.
The L3/4 level appears unremarkable.”
Mrs Cowley was seen by Dr Kumar, a general practitioner, on 23 January 2009. There is no report in evidence from Dr Kumar and the history he obtained is unknown. He continued to see Mrs Cowley at regular intervals until October 2009. Throughout that period, he provided her with medical certificates, not being WorkCover certificates, certifying her unfit due to “illness”.
On 20 March 2009, Mrs Cowley wrote to the Club CEO, Mr Duncan, in the following terms:
“I hereby request leave without pay from 23 March 2009, until further notice due to ongoing medical problems.
I see the surgeon on the 15 May 2009 and will be able to give you more details of when I can return to work.
I thank you for your kindness in the past, and look forward to returning to work.
I attach a Medical Certificate for the period 21^st March 2009 to 3 April 2009.
I look forward to hearing from you. Thank you.”
On 15 May 2009, Dr Kumar referred Mrs Cowley to a neurosurgeon, Professor Marcus Stoodley.
On 5 June 2009, Dr Stoodley performed an L4/5 laminectomy discectomy procedure at Baringa Private Hospital.
The surgery was immediately successful and Mrs Cowley achieved significant improvement in her back pain and resolution of the sciatica.
During the week of 7 July 2009, Mrs Cowley developed influenza, and repeated coughing led to a recurrence of the back pain and left-sided sciatica.
On 21 October 2009, she underwent a further CT scan that showed she had recurrent L4/5 left-sided disc protrusion and a progression of the right-sided L5/S1 protrusion. On 7 December 2009, following a review by Dr Stoodley, arrangements were made for Mrs Cowley to undergo a left L4/5 nerve root sheath injection.
On 5 November 2009, Dr Kumar recorded the following history of work-related injury:
“Started work at Urunga Bowling clun [sic] in 2002. Nature of duties: bar attendant, cellar work which involves moving kegs and changing kegs, unpacking stock deliveries to move in cool room. Symptoms started first in Nov 2007 Symptoms: low back pain, numbness left buttock, pain in left hip and left leg. Saw 11/1/2008 Dr Ronthal. Got operated on 05/06/2009 for lumbar microdiscectomy by Dr Stoodley.”
On 10 November 2009, Mrs Cowley completed a “Workers Injury Claim Form”. She claimed she suffered “Bulging discs lower back/both legs, left and right buttock/hip/leg/toes, ankle”. In answer to the question concerning how she was injured, she stated “heavy work duties associated with my employment since 2002”. In answer to a question concerning the tasks being undertaken when injured, she stated “general duties” and she identified the area where she was working as “cellar/cool room/bar”.
On 21 December 2009, Mrs Cowley was examined by Dr James Powell, orthopaedic surgeon, on behalf of CGU. Dr Powell obtained a history that, in November 2007, Mrs Cowley awoke one morning with pain in the mid to lower back. There was no specific incident reported in either her work or domestic activities. She initially thought she had a “pulled muscle”, which she had had from time to time in the past, and which had spontaneously resolved.
Dr Powell reported that, over the next few months, she found that the pain stayed with her, gradually increased, and radiated into the left iliac wing, upper buttock and, slowly, to the lower buttock and upper thigh on the right side. In early January 2008, Mrs Cowley saw her local doctor, who advised her that she had some bulging discs and thought it was best managed by observation. Mrs Cowley was reviewed the following month, by which stage the pain had started to involve the upper outer thigh. Her request for a referral for CT scan was refused by her doctor. He continued to see her monthly throughout early 2008.
The distribution of the pain was becoming broader, involving the posterior thigh and then moving down to the heel and lateral toes at times. Her condition continued to deteriorate, but her local doctor did not feel that further investigation was indicated and, in January 2009, she changed doctors. When she saw her new doctor, he immediately put her off work and organised a CT scan of the lumbar spine, which showed bulging in the lower discs. Dr Powell noted that Mrs Cowley was referred to Professor Stoodley in May 2009. Professor Stoodley advised her that decompression might be helpful and she agreed to undergo the surgery.
Dr Powell noted that, a month after the surgery, Mrs Cowley developed a severe upper respiratory tract infection which lasted for more than a month, during which time she had severe bouts of coughing. She found that this increased the pain in her lower back and legs once again. Dr Powell reported on Mrs Cowley’s current symptoms, noting continuing lower back and radiating pain.
In terms of past history, Dr Powell said that Mrs Cowley had, on occasions, intermittent pain in the lower lumbar spine, not associated with any specific incident. It usually lasted a short period and resolved with no trouble in between. She told him that she had no previous significant back injury.
Dr Powell obtained a “Work History” as follows:
“Ms Cowley started work at Urunga Bowling Club in 2002, having spent many years at home, bringing up her son. She wanted to ‘re-join life’. Her work at the Bowling Club was on a permanent part time basis, around 27 hours per week. Her work involved managing the bar area, frequently on her own and sometimes with co-workers, depending upon rosters.
She would often need to move kegs, move cartons of beer with repetitive bending and lifting, often in a cool room and other areas of the bar. Her job also involved emptying the poker machines and picking up bags of coin, often of considerable weight, sometimes from a shelf and sometimes from a lower position.
Her work level varied through the day, depending upon demand.
Early in her symptoms, she had a few days off in January 2008, but otherwise continued to work until being put off in January 2009 and has not worked since due to her ongoing symptoms.
Prior to this work, she had brought up her son for quite a number of years and before that, had been an office worker many years ago, in the 1980s.”
After reporting on his clinical examination and the radiological investigations, Dr Powell expressed the opinion that Mrs Cowley developed low back pain with no specific incident being identified to precipitate it. He noted that Mrs Cowley was of a fairly light build. He stated that the nature and conditions of her work involved a lot of heavy lifting at various levels. He felt it likely that the nature and conditions of her work over time resulted in the development of her condition. This, he said, was complicated by the development of the upper respiratory tract infection in the post-operative phase, which has most likely resulted in further extension of the disc prolapse through coughing.
Dr Powell considered it likely that Mrs Cowley had a degree of age-related degenerative changes in the lumbar spine, which had been asymptomatic. This may have rendered the lower lumbar spine a little weaker and, when subjected to loads imposed by her work, structural failure of the discs occurred. He opined that the work was a major contributing factor to the development of her condition, with age-related changes being a minor factor. He stated that, in his view, Mrs Cowley’s employment was the substantial contributing factor to the development of her condition. He did not consider Mrs Cowley fit to return to her pre-accident duties and felt that she would be fit for light sedentary work, such as office work, where there was no bending, twisting or lifting involved. He felt that she could work normal hours in that situation.
On 8 January 2010, Mrs Cowley was seen by Dr Hopcroft, a general surgeon specialising in orthopaedics, at the request of her solicitors. He obtained details of Mrs Cowley’s employment history. He noted that she undertook many and varied activities in the Club, which included supervising, bar retail work, “undertaking much keg movement work and the carrying of cases of alcohol”. Dr Hopcroft said that Mrs Cowley was able to carefully draw the way in which she was instructed to roll the kegs on one edge to various situations to reposition them. She said that she started to develop severe back pain, which became a major problem in November 2007. She had noticed the pain coming on gradually and felt that the pain may resolve itself, but she then started to develop significant left buttock pain and left leg sciatica. She attended her general practitioner, Dr Ronthal, over a period of 12 months, but he was extremely reluctant to undertake any form of radiological investigation, saying “he knew what the diagnosis was”. He simply prescribed the anti-inflammatory analgesic, Mobic, to be taken as necessary. No physiotherapy was organised.
Dr Hopcroft then reported on the outcome of the CT scan in January 2009 and the subsequent treatment by Dr Stoodley. After reporting on his physical examination and the radiology findings, Dr Hopcroft stated that Mrs Cowley suffered a significant L4/5 intervertebral disc protrusion as a result of work-related activities throughout the latter half of 2007, particularly at the Urunga Bowling Club. He felt that the deterioration which occurred post-operatively may result in further neurosurgical intervention. He felt that she was totally unfit to contemplate a return to the workforce while continuing to struggle with ongoing back pain and bilateral sciatica. He said, “It is undeniable that the work-related activities undertaken have been the direct and substantial cause of her injury”. He stated that Mrs Cowley will always have restrictions on her work-related activities and she should avoid repetitive bending and lifting manoeuvres. He assessed her as suffering from a 15 per cent whole person impairment regarding her work-related injuries.
Dr Powell prepared a further report dated 28 April 2011. It was admitted into evidence pursuant to an Application to Admit Late Documents dated 17 May 2011.
On 5 April 2011, CGU wrote to Dr Powell seeking his further opinion on a number of issues. He was provided with the following documents:
(a)     The clinical records from Dr Ronthal.
(b)     A copy of the investigator’s factual report of February 2010.
(c)     Statements from Mr Duncan, Ms Brown and Ms Mitton.
Dr Powell’s attention was drawn to the statements of Ms Mitton and Ms Brown alleging the worker “provided a history that she injured her back whilst renovating her home” and to Dr Ronthal’s note of 19 February 2007 “which appears to indicate that the Applicant suffered low back pain after lifting at home during renovations”.
The letter to Dr Powell continued:
“Further, the Applicant’s co-workers deny that the nature of the Applicant’s duties were heavy. Ms Brown stated that the Applicant’s duties as a Bar Attendant in her opinion, did not involve any work that she would consider heavy, noting that she carried out the same duties. She stated that the Applicant’s duties never involved lifting full kegs of beer or for that matter moving heavy kegs of beer on an ongoing basis. Ms Brown stated that the changeover of empty kegs to full kegs was mostly carried out by either a male staff member or one of the Supervisors and in that regard she had never witnessed the Applicant lifting or moving a full keg of beer in the coolroom. Ms Mitton stated that as a staff member who carried out the same work as the Applicant, she did not consider any of the work to be classified as heavy work, with the heaviest work carrying glasses. She confirmed that no member of the Club’s bars staff was ever expected to lift and carry full kegs or [sic] beer around the coolroom, however she did state that when kegs ran out, the staff members were expected to inform the Supervisor who rectified the problem by entering the coolroom and swapping over the empty keg to a full keg. She stated that she had never witnessed the Applicant lifting or moving beer kegs around the coolroom.”
Dr Powell was then asked to answer a number of specific questions, which he did as follows:
“1. Whether the Applicant provided a history of suffering any injury to her back whilst renovating her home?
Ms Cowley made no reference specifically to injuring her back while renovating her home.
She did indicate that she had had non-specific episodes of back pain in the past but gave no further detail.
Ms Cowley gave no history of specific injury to the back.
2.Whether, based on the further evidence in relation to the non-work related injury and the nature of her duties as described by her co-workers, in your opinion the Applicant sustained an injury to her back arising out of or in the course of her employment?
It would appear from other evidence provided that Ms Cowley had had a specific episode of back pain related to home renovating activities mentioned both to her local doctor and at work.
It would appear that there is evidence that she suffered injury to her back outside of her work.
3.Whether the Applicant’s employment was a substantial contributing factor to her injury?
The duties of employment as described by supervisors and other workers would suggest that there is little manual lifting in the course of her work.
I do recall expressing some surprise that she was expected to lift beer kegs given her diminutive size.
The description of work duties at the bowling club provided by other workers and supervisors would suggest that the nature and conditions of her work are not a substantial contributing factor in producing her back pain but that it arises from constitutional factors and out of work activities.
4.Any other relevant comments.
In taking a history from patients with respect to their complaints, it is often difficult to determine what information is being withheld or whether information is being twisted.
It is possible to eliminate an obvious hyperbole and editorialisation. However, it is generally necessary to accept the patient’s description as given as the primary source of information with respect to medical issues but this does leave one open to misinformation.”

ARBITRATOR’S REASONS

The Arbitrator concluded, based on the whole of the evidence, that Mrs Cowley had failed to discharge the onus of proof that, on the balance of probabilities, her work duties had caused or aggravated her back condition, or that her work duties were a substantial contributing factor to the injury to her back.
The Arbitrator’s finding was based in part on an adverse view of the worker’s credit. He formed that view for a number of reasons. First, the worker gave inconsistent evidence concerning her failure to formally report any injury to her back when it occurred. In her initial statement, Mrs Cowley said that, after injuring her back, she mentioned it to a couple of people at work. The Arbitrator found that that was materially different to the account that she gave in her second statement, to the effect that she discussed the matter with Sue Brown and Pamela Mitton, both of whom strongly recommended to her that she not report the injury for fear of it having an adverse effect on her future employment.
The second issue as to the worker’s credit concerned her claim on the income protection policy. The Arbitrator found that Mrs Cowley’s withholding of information to the income protection insurer that she had injured her back at work so as to ensure that she would receive income protection benefits reflected poorly on her credit.
For the above reasons, the Arbitrator preferred the evidence of Susan Brown and Pamela Mitton where it conflicted with that of Mrs Cowley.
The Arbitrator accepted Ms Brown and Ms Mitton’s evidence that, although supervisors did have to change beer kegs as part of their duties, it was not a particularly onerous task.
The Arbitrator accepted Mrs Cowley’s evidence where it did not conflict with her supervisors’. He accepted that, when acting as a supervisor, Mrs Cowley did replace empty kegs with full kegs, which necessitated leaning and rotating the kegs on their bases, but it did not involve lifting kegs. He also accepted that she moved gas cylinders, set out chairs, carried cartons of drinks, carried trays of glasses, filled the coin dispenser when required, lifting a 9 kg load to head-height, and cleaned the bar area and fridges.
The Arbitrator was not satisfied that the histories relied upon by Dr Hopcroft and initially by Dr Powell were well-founded in terms of the nature of the worker’s duties. He concluded that the revised opinion of Dr Powell was based on a more accurate history than his earlier report and the report of Dr Hopcroft.
Under the heading “Non Work Related Causes”, the Arbitrator listed the evidence on which he relied to form his ultimate conclusion, which included the following:
(a)     Ms Brown’s evidence that Mrs Cowley had complained of back pain for over six years, and that Mrs Cowley informed her that, while undertaking renovations at home, she suffered an injury to her back while lifting heavy timber and carrying out painting;
(b)     Pamela Mitton recalled Mrs Cowley complaining that she was suffering a sore back while carrying out home renovations;
(c)     Dr Ronthal recorded on 17 February 2007 a lifting incident at home while renovating and possible muscle strain;
(d)     there were no follow-up visits to Dr Ronthal, no treatment modalities were recorded and no investigations were carried out. Mrs Cowley carried on with her normal duties following the consultation on 17 February 2007 until she next saw Dr Ronthal on 11 January 2008;
(e)     it appears that the only entry in Dr Ronthal’s notes concerning a work-related incident occurred on 14 January 2008, lifting a tray of glasses at work. He noted a sore back with radiation;
(f)      Dr Ronthal’s certificates issued throughout 2008 did not refer to a work-related condition;
(g)     Dr Kumar’s first note of a work-related incident occurred on 5 November 2009, when he noted a history of cellar work involving moving and changing kegs, unpacking stock, and deliveries in the coolroom, with symptoms beginning in November 2007. It was only from that date that Dr Kumar issued WorkCover medical certificates;
(h)     Mrs Cowley did not provide any reason for resigning her position as relief supervisor on 4 November 2008, and did not make a claim for weekly benefits;
(i)      the Arbitrator accepted that Mrs Cowley had complained of back pain for years before the home renovation incident. He accepted that she suffered a low back pain while in the course of carrying out home renovations in the first half of 2007;
(j)      the Arbitrator rejected Dr Hopcroft’s opinion as not soundly based, as he was not given a history of pre-existing back pain, nor the lifting incident during the course of the home renovations, although the Arbitrator accepted that to be an isolated incident;
(k)     the Arbitrator accepted that Mrs Cowley’s failure to mention a back injury when claiming benefits on her income protection policy may well be viewed as a statement of her actual belief rather than, as she explained, being of necessity to obtain the benefits;
(l)      the Arbitrator applied the test in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 concerning the onus of proof which he summarised at [82] of the Reasons. Applying the evidence to that test fell short, in the Arbitrator’s view, of persuading him that the worker’s duties caused or aggravated the condition in her lumbar spine.

At the time the discussions between the worker and Ms Brown and Ms Mitton were alleged to have taken place, the worker was complaining of aching in the back, and being reassured by her doctor that there was nothing seriously wrong with her.
Mrs Cowley submits that, in their denials, both Ms Mitton and Ms Brown stated that the worker did not make “an official complaint”. They both used the same term. In the brief statement issued by Ms Brown on 26 May 2011, responding to Mrs Cowley’s more detailed account of the alleged conversation, she denied that Mrs Cowley had ever made “any complaints” of suffering an injury to her back in the course of her employment. Those two statements are inconsistent.
An unsuccessful attempt was made to obtain a response to Mrs Cowley’s allegations from Ms Mitton. I draw no inference from that fact, for the reasons explained by Ms Rafferty. Due to the late service of Mrs Cowley’s statement of 10 May 2011, there was insufficient time to obtain a response from Ms Mitton, due to her absence on leave, until the arbitration hearing took place on 30 May 2011.
Given that Mrs Cowley identified a reason why, at least in the case of Ms Mitton, she was influenced not to report her injury, the Arbitrator did not discuss or resolve why such a motivation should not be a factor in the weight that he attached to her evidence.
The Arbitrator did not consider whether the use of the term “official complaint” had any particular significance. It was put to him that an “official complaint” would have been unwelcome, due to the possible occupational health and safety implications should it come to the attention of WorkCover that females were required to move kegs of beer in the coolroom. Mrs Cowley submits the use of that expression is consistent with her version of her report of injury. I raised this with the employer’s counsel at the hearing of the appeal; however, no persuasive explanation was forthcoming to explain the use of the term. I infer that its use by both Ms Brown and Ms Mitton was not accidental. It would also be reasonable to infer that the use of the expression is consistent with the worker’s account of what transpired between herself, Ms Brown and Ms Mitton, that is, a verbal report of the injury to a supervisor while not proceeding to make a formal written report of the injury.
So far as the weight to be attached to Ms Brown’s evidence is concerned, as I have already identified at [76], her evidence in relation to the worker moving full beer kegs was wrong. The Arbitrator, by inference, did not accept that evidence because he found the worker did move the kegs. Her unreliability on that issue should have alerted the Arbitrator to be cautious in accepting her other evidence.
The Arbitrator formed an adverse view of the worker’s credit as a result of her concession that she withheld information from CommInsure, with whom she held an income protection insurance policy, in order to ensure she recovered benefits under the policy. Counsel for Mrs Cowley, Mr Willis, submits that the issue is irrelevant because it arises from a contractual arrangement between the worker and the insurer. Any entitlements the worker may have pursuant to the policy are dependent on it terms. The terms of the policy and the claim form were not in evidence. He submits that the question could only be admissible as a prior inconsistent statement, the basis for which had not been properly laid (Adam v R [2001] HCA 57). I do not accept that submission. The question was admissible as relevant to the central issue of causation and the worker’s credit.
When asked in evidence about her claim for benefits on her income protection insurance through CommInsure, the worker conceded she did not mention her back injury being work-related because, if she had, she would not have been able to claim income protection and she felt her position was bad enough after taking her supervisor’s advice not to write it in the incident book. The worker’s concession was disarmingly frank, even though it was clearly against her interests. The Arbitrator’s reliance on that evidence was relevant to his evaluation of the credit issue, although it was not determinative of it.
A further reason given by the Arbitrator for preferring the employer’s witnesses is his rejection of the proposition (at [48] of the Reasons) that the manager, Mr Duncan, was the kind of person who would reduce Mrs Cowley’s working hours in the event of a reported injury. He described the worker’s version as portraying Mr Duncan “as a severe manager intolerant of less than complete fitness”. The Arbitrator was influenced by a complimentary note written by the worker to Mr Duncan when requesting leave on 20 March 2009. However, the Arbitrator failed to take into account the uncontested evidence that, in similar circumstances, Mr Duncan did in fact reduce the working hours of a worker (Tim) after he reported a strain injury. Furthermore, the Arbitrator seems to have overlooked the fact that Mr Duncan dictated the terms of the note written by the worker.
The Arbitrator’s findings were also influenced by the worker’s failure to report her injury on 4 November 2008, when she resigned as relief supervisor, and on 20 March 2009, when she requested leave without pay ([42], [44], [74]–[75] of the Reasons). At the hearing of the appeal, Mrs Cowley submits that there was no reason for her to have reported an injury at that time, because she believed that her employer was on notice of it by reason of her earlier discussion with Ms Brown and Ms Mitton. The Arbitrator did not refer to that evidence or to the worker’s evidence, in that the terms of the letter she wrote on 20 March 2009 were dictated to her by her employer, Mr Duncan. However, that said, it must be accepted that the Arbitrator was correct to observe that both occasions provided the worker with an opportunity to report her injury if she genuinely believed it to be work-related. She did not avail herself of that opportunity on either occasion. This was a relevant factor in weighing whether Mrs Cowley suffered an injury at work in the circumstance she alleged.
The Arbitrator’s finding at [76] of the Reasons that the worker had complained to her co-workers of back pain “for years” before the home renovation incident is contrary to the evidence. Ms Brown said that she first became aware of the worker suffering back pain “six years ago”. She did not say that the worker suffered continuous back pain for six years. Ms Mitton, who worked with Mrs Cowley for 10 years, said she first became aware of the worker’s back problems in 2008, when she was renovating her home. Notwithstanding that Ms Mitton is in error as to the date, because the renovations were completed by April 2007, the evidence does not support the finding of complaints of back pain for years before the home renovation incident. The evidence is that the worker suffered only occasional bouts of back pain from which she recovered.
Mrs Cowley submits that the Arbitrator misdirected himself by directing attention to whether or not the worker’s duties were “heavy”, rather than whether they were capable of causing the injuries complained of. After resolving the factual dispute regarding the nature and extent of the worker’s duties and finding that Mrs Cowley was required to change kegs, she submits that the Arbitrator erred by not giving reasons as to why those duties alone not could have been a substantial contributing factor to the development of her back injury. The submission is misconceived. The worker has the onus of proving injury and that the requirements of s 9A of the 1987 Act are satisfied. It was not her case that the work of changing of the kegs, in isolation to other duties, caused her injury.
Mrs Cowley further alleges that the Arbitrator erred by elevating the evidence of her co-workers from a perception by them that they did not regard the work duties as onerous to a finding that the history of heavy work tasks recorded by Dr Powell had not been made out. The employer submits that this submission does not amount to an allegation of error. It submits that the Arbitrator’s findings in relation to injury were not based exclusively on the evidence of the degree of difficulty of changing the kegs, but were based on the whole of the evidence. As I have indicated, that submission is correct. The Arbitrator found that the assertion of bending and lifting was not made out, but he accepted that the worker engaged in the range of duties referred to at [55]–[56] of the Reasons.

CONCLUSION

Appeals under s 352 are restricted to the identification and correction of error. In cases where an Arbitrator has had the advantage of hearing and seeing the worker give oral evidence, and has reached a conclusion that is partly based on his or her view of the worker’s credit, the Commission will always be extremely reluctant to overturn such a decision unless it is demonstrated that the Arbitrator’s conclusion “is affected by identified error of principle or demonstrated mistake or misapprehension about relevant facts” (Devries at 480). In such a case, the advantage the Arbitrator had in hearing and seeing the worker give oral evidence may “be of little significance or even irrelevant” (Devries).
I have concluded that the advantage the Arbitrator had in seeing and hearing the worker give evidence is of little significance in circumstances where he has misapprehended the evidence on several critical issues as follows:
(a)     Failing to consider whether the evidence that the worker did not make an “official complaint” was consistent with the worker’s version of events.
(b)     Failing to accept that the worker was influenced not to pursue reporting of the injury in November 2007 because she was being reassured by her doctor that she had not suffered a serious injury.
(c)     Preferring Ms Brown’s evidence without resolving the inconsistencies in her initial evidence, namely, that she received “no official complaint”, with her later evidence that there had been no complaint of injury.
(d)     Preferring Ms Brown’s evidence when it was unreliable in so far as it related to the worker’s duties, including moving kegs in the coolroom.
(e)     Not taking into consideration Ms Mitton’s motivation for discouraging a report of injury, namely, that it may result in her being required to work on weekends.
(f)      Concluding that a history of bending and lifting is not asserted by the worker when, in fact, that was the substance of her allegations. The conclusion was also inconsistent with the Arbitrator’s findings regarding the nature and extent of the workers duties.
(g)     Wrongly concluding that the worker’s fears of having her working hours cut down if she reported her injury were not genuinely held when the evidence was to the contrary.
(h)     Finding that the worker had suffered from continuous complaints of back pain “for years”, which was contrary to the evidence.
(i)      Accepting Dr Powell’s conclusion that there was little manual lifting, which was inconsistent with the evidence and the Arbitrator’s findings as to the worker’s duties.
(j)      Accepting Dr Powell’s revised history, although Dr Powell failed to explain the significance he placed on the history of prior injury during the home renovations, when the evidence is that it was nothing more than a minor back strain from which the worker fully recovered.
(k)     Accepting Dr Powell’s reliance on an assessment by Mrs Cowley’s colleagues of her duties as a “bar attendant” when, in fact, it was the duties required of her as a “relief supervisor” that she claims caused her injury.
Although no one matter is decisive, the above matters taken together demonstrate that the Arbitrator’s decision is affected by several significant errors that go to the heart of the determination, and greatly diminish the weight to be attached to the Arbitrator’s credit finding. Considering all these matters, the Arbitrator’s decision cannot stand.
It has long been accepted that, if an appeal is upheld, it is preferable, if possible, that the Presidential member finally determine the matter (Chubb Security Australia Pty Ltd v Trevarrow [1985] HCA 58; 59 ALJR 844). Although both parties consented to me re-determining the matter, I consider the preferable course is to refer the matter to another Arbitrator to be determined afresh. My reason for doing so is because, as the matter unfolded before the Arbitrator, Mrs Cowley was permitted to rely on late evidence concerning the circumstances of alleged reporting of the injury to her co-workers. Attempts to have Ms Mitton respond to the evidence were unsuccessful as she was on leave during the short window of opportunity between late evidence being served and the hearing. The parties should be given the opportunity to deal fully with that issue by any further evidence and submissions.

OTHER MATTERS

The matter was pleaded as a frank injury occurring on 15 November 2007. However, the evidence was presented and the matter argued on the basis that the worker’s injuries were caused by repeated bending and lifting in the course of her employment. Before the matter proceeds, the pleadings should be reconsidered and, if necessary, re-pleaded to accurately state the worker’s allegations of injury.

DECISION

The Arbitrator’s decision of 7 June 2011 is revoked.
The matter is to be referred to another Arbitrator for re-determination.

COSTS

The respondent employer is to pay the appellant worker’s costs of the appeal.

Judge Keating

President
6 December 2011

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE