Curtain v Q-Comp

Case [2011] QMC 50

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Curtain v Q-COMP [2011] QMC 50

PARTIES:

PETER CURTAIN

(appellant)

v

Q-COMP

(respondent)

FILE NO/S:

MAG64985/10(8)

DIVISION:

Magistrates Courts – Industrial Magistrate

PROCEEDING:

Appeal against decision of Q-COMP

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

8 December 2011

DELIVERED AT:

Southport

HEARING DATE:

1 August 2011, 2 August 2011

MAGISTRATE:

Costanzo JJ

ORDER:

Appeal dismissed.

The decision by Q-COMP, made on 11 February 2010, which affirmed the insurer’s rejection of the application for compensation, is confirmed.

CATCHWORDS:

INDUSTRIAL LAW – WORKERS COMPENSATION - whether aggravation of a pre-existing degenerative disease – what is an “aggravation” – whether injury arising out of employment, or in the course of employment – whether employment also significant contributing factor to injury

COUNSEL:

L Willson for appellant

PB O’Neill for respondent

SOLICITORS:

Parker Simmonds Lawyers for appellant

Respondent on own behalf

Background

  1. This is an appeal by Peter Curtain pursuant to section 550 of the Workers Compensation and Rehabilitation Act 2003 (the "WCAR Act") against a decision of the Q-Comp Review Unit.

  2. The following matters were not in dispute between the parties:

    (a)    Peter Curtain was employed by Two Pine Pty Ltd, as Operations Manager, for three IGA Stores owned by Craig Meyer at Jindalee, Meadowbrook and Rosewood. He was employed between August 2007 and November 2009.

    (b) Peter Mr Curtain was a "worker" at the time of his injury within the definition of "worker" in section 11 of WCAR ACT.

    (c) Peter Curtain claims that in the period from July 2007 to December 2009 he sustained an injury pursuant to section 32 of the WCAR Act (see below).

    (d)   The periods of work during which Peter Curtain complains he was caused specific back pain were:

    (i)January 2008 in association with the first refit of the Rosewood store;

    (ii)June 2008 in association with the second stage refit of the Rosewood Store;

    (iii)June 2009 in association with the refit of the Jindalee Store; and

    (iv)October 2009 in association with the refit of the Meadowbrook Store.

  3. Peter Curtain had a pre-existing degenerative disease of the lumbar spine prior to obtaining this employment with Two Pine.

  4. Peter Curtain did not disclose the pre-existing degenerative disease to the employer at any time before starting, or during, his employment.

  5. Peter Curtain’s employment was terminated by Two Pine Pty Ltd on 20 November 2011 (following a meeting on the 11th) for alleged misconduct.

  6. Peter Curtain did not inform the employer about any alleged back injury before his employment was terminated.

  7. On 9 December 2009 Peter Curtain made a hand-written application for compensation (exhibit 1).

  8. On 21 December 2009 WorkCover rejected the application and provided written reasons for the rejection (exhibit 5).

  9. On 6 January 2010 Peter Curtain applied to review the decision (exhibit 6).

  10. On 11 February 2010 Q-Comp decided to affirm the insurer’s rejection of the application for compensation (exhibit 7).

  11. The appeal to this court was lodged on 10 March 2010 (exhibit 8).

The law

This is a hearing de novo

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Details
AGLC
Curtain v Q-Comp [2011] QMC 50
Case
[2011] QMC 50
Decision Date

CaseChat Overview and Summary

The case of Curtain v Q-Comp involved a claim for workers' compensation by Peter Curtain against Q-Comp, the insurer. The central dispute was whether Curtain's degenerative disease was aggravated by his work with Two Pine Pty Ltd, and if such aggravation constituted an injury for which compensation was payable. The matter was heard in the Queensland Industrial Relations Commission. The key legal issues revolved around defining what constituted an "aggravation" of a pre-existing condition, whether such an aggravation was an injury for which compensation is payable under the Workers' Compensation and Rehabilitation Act 2003 (Qld), and whether Curtain's employment was a significant contributing factor to the injury or its aggravation.

The court examined the nature of Curtain's work, which included significant physical tasks such as erecting shelving, and weighed this against the evidence that other staff members were also involved in these activities. The evidence suggested that while Curtain did perform heavy manual work, he was not solely responsible for the tasks and often had assistance. The court had to determine if Curtain's employment as an operations manager with Two Pine Pty Ltd was a significant contributing factor to his alleged injury or the aggravation of his pre-existing degenerative condition.

In its reasoning, the court found that the evidence did not sufficiently establish that Curtain's employment was a significant contributing factor to the aggravation of his pre-existing degenerative disease. The court considered that the tasks performed by Curtain were not solely his responsibility and that he often had assistance from other staff. Additionally, the court noted that there was no evidence that Curtain had previously reported any work-related back injury during his employment. Given these findings, the court concluded that Curtain had not met the burden of proof required to establish that his employment was a significant contributing factor to the aggravation of his condition.

The court dismissed the appeal and confirmed the decision by Q-Comp to reject the application for compensation.

Orders

Orders of the court

Appeal dismissed.

The decision by Q-COMP, made on 11 February 2010, which affirmed the insurer’s rejection of the application for compensation, is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

I note there is no evidence that before these later events there had been any mention by Peter Curtain to Meyer or to Two Pine that he had sustained a work-related back injury in the course of his employment with Two Pine. It was only after Mr Curtain’s termination that he raised an alleged back injury. Of course, that in itself is not the determining factor. It is a relevant factor.Evidence about the Rosewood refit (First Stage) Meyer stated in his Affidavit that he redeveloped the Rosewood Store in two stages in 2008. In January 2008 a new IGA Store was constructed for a period of months while the old IGA store remained open for business. In about May/June 2008, the Appellant, in addition to other staff, were responsible for the fit-out of that newly constructed part of the IGA Store. Meyer stated the new store opened in June 2008. Peter Curtain and Patricia Plant stated that the initial phase of the Rosewood store refit, putting shelves up and refitting it with deli, bakery and meat items, was in January 2008. Patricia Plant recalled that Peter Curtain performed many of those activities. Robyn Morgan agreed the refit at Rosewood was in January 2008 in readiness for the store re-opening at the end of January. Patricia Plant stated that her observations of Peter Curtain’s refit work was minimal, that some days she would not see him and on other days she would see him 10, 15 or 20 times per day. However, Peter Curtain did not work as alone as he made out. Ms Plant stated:“He had two boys over there all the time. He had Steven Ray, or Brad, or somebody. There was always two staff members on over there erecting shelves.” [2]and“I seen Peter put a lot of products on the shelf and things like that, doing the layout of things like that, but actually erecting the shelves, no. He was over the other place several hours by himself, but I was over there sometimes, but when I was over there I never seen him erect the shelves.” [3][2]Transcript page 2-6, line 50.[3]Transcript page 2-5, line 50. Robyn Morgan, a shop assistant at the Rosewood store, mainly worked the checkouts. Once she became the grocery manager she spent about 30% - 40% of her time in the office. Ms Morgan spent little time helping with the shelving work. A couple of times per week in January 2008 maybe twice a day for 15 minutes. She also gave the following evidence:“At those times when you did see him, was he assisted by others in erecting the shelving, or doing it himself? The only time I specifically seen Peter doing shelving, putting one set together, he was doing it with others.”[4]and“Were there times also when you saw shelving work being done that did not involve Peter Curtain? Yes. Yes. And who was doing it then? That was then the young fellows that I mentioned there, and sales reps didn't usually put the product up, but they assisted laying it out. But it was mostly the young fellows that I seen doing that, yeah. Right. And how many times did you see that? On the occasions when I visited the store you would see them doing it in that first part of the set up nearly every time you went there, yeah. Because there's a lot of work involved in doing it. How many times would you have gone there and seen that? I probably went there over a course of about three or four weeks, on an average twice a day would be most of the time. Right? So yeah. And so what period of time are we talking about there, that's back in ? That's in January 2008 I'm referring to there, and that's just right before we opened the store. So about the three weeks lead up to that.”[5]

Decision

Reasons for decision

Section 559 of the WCAR Act provides:559 Decision of appeal bodyThe appeal body must give—(a) the appeal body’s decision in a hearing in open court;and(b) a written copy of the decision to each party. The appellant submitted in writing that the issues are:“(i) As a matter of fact, what was the nature of the tasks performed by Mr Curtain over time from? (sic)(ii) On the basis of what was found to have occurred, has Mr Curtain proven that she (sic) sustained an “injury”, (including an aggravation) to which employment was a significant contributing factor?” The respondent, perhaps more accurately, stated the issues which had to be proved by the appellant were:(i)that Peter Curtain was a “worker” pursuant to section 11 of the WCAR Act (which was not in issue)(ii)that Peter Curtain has sustained a personal injury pursuant to section 32(1) or (3) of the WCAR Act, and (iii)that Peter Curtain’s employment as an operations manager with Two Pine Pty Ltd was a significant contributing factor to that injury or alternatively to the aggravation of an underlying disease. The appellant concedes at paragraph [62] of the Outline of Submissions that it is an aggravation which is relied upon by the appellant “specifically” i.e. “an aggravation of a pre-existing injury” pursuant to section 32(3) of the WCAR Act. Peter Curtain says he spent the majority of his time during refits in three stores, in performing the heavy manual work of erecting the shelving, and this is what caused his pain and injury. He says he did not receive a lot of assistance from other staff or other persons. The respondent’s case is that Peter Curtain was in charge of supervising the planning and physical layout and then the product placement on shelves, and that a good deal of the shelving erection work was also done by others. Peter Curtain stated that the shelving consisted of centre posts, end posts (of which the heaviest was approximately 10kg), shelving (weighing 3-5 kg), cross-struts or brackets that hold up the shelving (each considered 'light" individually, but which came in heavier bundles) and display boxes on the ends of each aisle. Such components arrived on pallets and were then "de-palletised", i.e. they were carried individually from the pallet into the store or lifted into or onto trolleys and wheeled into the store where the aisles were being constructed The aisles in the stores were up to 15 meters in length, and each had from some 8 to 15 bays depending on the length of the aisle. Mr Curtain claimed under cross examination that "you never carried the brackets individually". The brackets came in packs of 50 and were lifted from the pallet to the trolley. Peter Curtain stated (as Mr Meyer conceded) that the process of erecting shelving involved a fair bit of bending, reaching forward or reaching upward and holding shelving parts in place. Steven Porter also described the amount of kneeling involved and that he saw Curtain erect shelving. For each ‘refit’, the store’s commodities would be taken off shelves and replaced in accordance with a drawn plan. Packaging and other rubbish had to be discarded and there was cleaning involved.

Ratio Decidendi

Legal Principle Established

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