Dalby v Q-Comp
[2009] QMC 9
•21 October 2009
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Dalby v Q-COMP [2009] QMC 9
PARTIES:
JOHN ANDREW DALBY
(appellant)
v
Q-COMP
(respondent)
SWIFT AUSTRALIA PTY LTD
(intervener)
FILE NO/S:
MAG168351/08(9)
DIVISION:
Industrial Magistrates Court
PROCEEDING:
Appeal against decision of Q-COMP
ORIGINATING COURT:
Industrial Magistrates Court at Brisbane
DELIVERED ON:
21 October 2009
DELIVERED AT:
Brisbane
HEARING DATE:
1 June 2009, 2 June 2009
MAGISTRATE:
Callaghan CJ
ORDER:
The decision of Q-Comp of 7 August 2008 is confirmed
CATCHWORDS:
INDUSTRIAL MAGISTRATES COURT – APPEAL AGAINST Q-COMP DECISION – INJURY RESULT OF EMPLOYMENT – was injury result of employment
Workcover Act 1996 (Qld), s 34
Workers Compensation and Rehabilitation Act 2003 (Qld), s 32
COUNSEL:
J Wiltshire for appellant
A McLean-Williams for the respondent
G Cross for the intervener
SOLICITORS:
Maurice Blackburn for the appellant
The respondent on their own behalf
A K Compensation Lawyers for the intervener
John Andrew Dalby (“Mr Dalby”) was first employed by AMH which later became Swift Australia Pty Ltd (“Swift”) in 1989. He worked in their meat works pulling beasts’ guts off tables until about 1994 or 1995 when he left. He commenced to do some rodding for a short time before leaving. Rodding is a process which required him to place a one metre long metal rod with a curled hood at one end around the oesophagus of the beast which had come to him on a hook upside down and which by that stage had been opened up by the bleeder across the whole length of the neck and which by that stage the oesophagus had been separated from the tendons.
The force required to do the job of rodding varied from animal to animal and sometimes it required all the force which he could muster. He and a co-worker would treat 216 beasts per hour continuously over eight to ten hour shifts.
He went to prison for a couple of years and then recommenced working with Swift in 1998. When he recommenced he was again pulling guts off the table for a few months and then he recommenced rodding.
He submitted an application for compensation[1] on the 16 of June, 2006 listing his injuries as strained right shoulder, strained both elbows and strained both wrists. That claim for compensation has been accepted.
[1] Exhibit 14.
Subsequently he made applications to claim for compensation for the periods 1 July 2001 to 30 June 2003 and for the period of 1 July 2003 to 15 June 2006. Initially Swift being a “self insurer” rejected the claims and by decision dated 7 August 2008 Q-Comp also rejected the claims.
These proceedings concern Mr Dalby’s appeal from the Q-Comp decision pursuant to Section 549 of the “Workers Compensation and Rehabilitation Act 2003” (“the 2003 Act”).
By order dated 20 November 2008 Swift was given the right to be heard in the appeal and leave to participate in this appeal.
The reason for the two claims for compensation which run into each other time wise is that on the 1 July 2003 the 2003 Act commenced. Prior to that time such claims were governed by the “Workcover Act 1996” (“the 1996 Act”).
It is not in dispute that Mr Dalby was at all material times a worker under the 1996 Act for the 1 July 2001 to 30 June 2003 claim and a worker under the 2003 Act for the 1 July 2003 to 15 June 2006 claim.
The question to be determined in this proceeding is whether or not Mr Dalby sustained an “injury” as defined for the earlier claim in Section 34 of the 1996 Act or as defined for the later claim in Section 32 of the 2003 Act. The definition of injury in each piece of legislation is the same. For relevant purposes it is:-
“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”.
In each claim for the two periods Mr Dalby has listed the injury as “right shoulder – tendonitis, right and left elbows – epicondylitis and right and left wrists – strain. The questions therefore are whether or not Mr Dalby suffered those injuries and were they injuries which arose out of or in the course of his employment and/or whether his employment was a significant contributing factor to them or any one of them.
Mr Dalby, being the Appellant, bears the onus of proof in proving, on the balance of probabilities, that he has suffered an injury within the meaning of the Act[2].
[2] See Queensland v Coyne (2003) 172 QGIG 1447.
MR DALBY’S EVIDENCE
Mr Dalby described the work that I have referred to above as being strenuous and repetitive. As well as rodding, he would have to cut off the ear tags. He worked eight to ten hour shifts having breaks every so often throughout but the pressure was always on to get the work done.
Mr Dalby said in his evidence before me that he first experienced symptoms of pain in relation to his shoulder, elbows and wrists within one year and perhaps nine or ten months before seeing Dr Goldston for the first time, which was on 16 June 2006. By contrast he stated the following:
14.1.In his claim dated 12 September 2006[3] that he first noted symptoms on 19 June 06;
14.2.In his Statutory Declaration dated 24 December 2007[4] that he first experienced symptoms in these areas in the beginning of 2006;
14.3.In his Statement dated 22 September 2006[5] that he had been experiencing pain in his right shoulder on and off since the beginning of 2006, in his right elbow for about 1 month prior to 16 June 2006, in his wrists for 2 months prior to 16 June 2006 and in his left elbow (though not as strong as that experienced in the right elbow) on and off for a couple of months.
[3] Exhibit 14
[4] Exhibit 17
[5] Exhibit 18
He described the first symptom he experienced was like “worms crawling up and down my forearms”[6]. He then said after that his wrists were getting sore and his elbow would be sore when picking up anything even at home and in particular about six weeks before he first saw Dr Goldston he was experiencing severe symptoms in his elbow.
[6] Transcript page 29 line 38.
He said he could have experienced shoulder symptoms for the first time about 18 months before first seeing Dr Goldston (here I again contrast this evidence with his other statements referred to in paragraph 14 above). When asked as to whether or not he went to see the nurse about his shoulder he said that he didn’t, saying that if he asked his foreman as to whether he could go and see the nurse about his shoulder, as it would take about an hour and half before someone could replace him the, symptoms would have subsided by then.
He said the symptoms in his shoulder were at the right shoulder blade. He said he experienced them once or twice a week and that the frequency of him experiencing the symptoms increased over time.
He said he first experienced symptoms in his wrists about a year before first seeing Dr Goldston (and again I note the other statements by him referred to in paragraph 14 above). The symptoms in his wrist continued to get worse and worse up to seeing Dr Goldston.
He said that when he went to see Dr Goldston he went concerning his wrists and everything else was hurting and he told Dr Goldston as such but Dr Goldston only wrote down that his elbows were hurting. He said that he specifically mentioned to Dr Goldston about the symptoms in his elbows on the first occasions. He said he did not mention the shoulder to Dr Goldston on the first occasion. This is somewhat different to the report from Dr Goldston[7] which says that Mr Dalby stated that he’d had bad elbows from actions at work for the last 3 years (which had gradually worsened over the last 6 months), that his right shoulder and wrists were painful as well but not a badly as his elbows.
[7] Exhibit 7
Dr Goldston diagnosed “bi-lateral elbow tendonitis”.
He saw Dr Treffene (orthopaedic surgeon with special interest in the hands and upper limbs) on the 17 July 2006. He recommended 6 weeks light duties.
Mr Dalby complains that the so called “light duties” were not so light in that he was involved in picking up rubbish and also involved in working the pump at the dam. He described this as hard work as he would have to turn the pump around which weighed two or three tonne some forty times a day.
He said that Dr Treffene injected some cortisone into his elbows. The injection on the left elbow seemed to work but there was no change to the right elbow.
He returned to see Dr Treffene on the 29 August 2006. He says that on that occasion he mentioned problems in his wrists to Dr Treffene. Dr Treffene[8] said that Mr Dalby, in addition to consulting him concerning his elbow problems, mentioned that he was developing pain in his right shoulder with pain referring down along his biceps tendon. He was referred by Dr Treffene for a treatment called Lithotipotripsy on his right arm.
[8] In his report of 3 October 2006 – Exhibit 10
He consulted Dr Duke an orthopaedic surgeon on the 31 October 2006.
He stopped work for Swift and then obtained some work for Rocla Pipes working there for about three months, but as he was still experiencing a great deal of pain in his wrists, elbows and shoulder he stopped work there and he hasn’t been working since 2007.
He had ceased performing light duties for Swift in about November 2006. That came about because of an assessment having been made that his injuries were not caused by his work.
Mr Dalby was aware that in the course of his employment with AHM and Swift Australia that he had to report injuries suffered by him or symptoms suffered, to his employer and that he was aware of that requirement from when he first joined Swift[9].
[9] Transcript page 44, lines 40-50.
There was a nurse on duty throughout his time of working there.
In cross examination he agreed with the following propositions which emerged from the first aid records namely that for the period 2000-2006 he attended the nurse’s station on the following occasions:-
30.1.2000 – 12 times
30.2.2001 – 6 times
30.3.2002 – 6 times
30.4.2003 – 9 times
30.5.2004 – 8 times
30.6.2005 – 11 times
30.7.2006 – 18 times
On none of those occasions did he attend because of any injuries to, or any symptom arising from any perceived injury to his elbows, his wrists or his right shoulder.
He attempted to explain this away by saying that he couldn’t see the nurse about those particular injuries stating that on a lot of the occasions he simply helped himself to some tablets. But there were occasions when he did see her for specifically back pain and received a massage from her.
It is very hard to perceive that if he was suffering pain to his right shoulder, both of his wrists and his elbows as to why he would not have mentioned this pain to the nurse on any one of the many occasions that he attended upon the nurse.
Further, Mr Dalby attended upon the medical centre at which Dr Curzon practices on thirteen occasions between June 2004 and the date of his application for compensation and on none of those thirteen occasions did he report symptoms in his right shoulder, elbows or wrists.
Further when he attended upon Dr Treffene on the 17 July 2006 he agrees that he didn’t tell Dr Treffene about his shoulder or wrist problems but rather simply concentrated on his elbow problems. He explained the reason for this non disclosure to Dr Treffene was that because he thought if he got his elbows fixed the other pain would go away. Dr Treffene says that he was only told about the elbows on the 17 July 2006 and further states that on Mr Dalby’s consultation of him on the 29 August 2006 that he told Dr Treffene for the first time then that he was only developing symptoms in the wrists and shoulder.
When he attended upon Dr Duke on 31 October 2006 he told Dr Duke, who was taking a history of the injuries, that he has had pain for years and at some time in the past few years he noticed pain in the elbows, he developed right shoulder pain about a year ago and that both wrists had been hurting for about 4 months.
Due to the non disclosure of these other injuries to the nurse and due to the varying accounts given by him as to when his painful symptoms (of injury) occurred, I find that Mr Dalby is not a reliable witness on the question as to whether he suffered any of these injuries prior to 16 June 2006.
THE MEDICAL EVIDENCE
Dr Treffene[10] first diagnosed his elbow condition as bilateral medial humeral epicondilitis. He said[11] that it is feasible that associated with the inflammatory condition of his elbows that Mr Dalby may have an impingement syndrome of his shoulder. In cross-examination he said (in relation to Mr Dalby’s elbow problems)[12] “it is fair to say that his work could exacerbate pain.” He also agreed[13] that it could conceivably be the case that Mr Dalby’s right shoulder problem and his bilateral epicondilitis are related to the work he was doing but that his wrist problems were related to his rheumatoid arthritis. Dr Treffene having ordered further tests and having received information the Mr Dalby had a positive Rheumatoid factor finally formed the view that the elbow and shoulder problems (as well as the wrists’) were related to his rheumatoid condition rather then the original diagnosis of epicondilitis. He stated in a telephone conference on 19 May 2009[14] that “the rheumatoid arthritis is most likely to be the significant factor”. This confirmed what he had said in his report of 18 November 2008[15] that “all these multiple joint and tendon irritations” are “really due to his rheumatoid arthritis and not his work”
[10] In his report of 17 July 2006 – Exhibit 3
[11] In his report of 3 October 2006 – Exhibit 6
[12] Transcript P1-82 L1-10
[13] Transcript P1-82 L45-50
[14] Exhibit 22
[15] Exhibit 21
Dr Gillett examined him on 11 April 2008. He said,[16] taking into account the histories as taken by Doctors Treffene and Duke as well as himself, that Mr Dalby developed bilateral elbow symptomology and medial epicondilitis and on the radiological appearances of 6 November 2006, he developed right rotator cuff bursitis. He said in that report that the exact cause of the wrist symptomology is not defined, but in his later report[17], after being informed of the positive rheumatoid factor he said the following:
38.1.Re his wrists – that “I think on the balance of probabilities that his wrists conditions are more likely to be rheumatological in nature although the resolution of symptomology with cessation of his work practise (sic) that it is probably mechanical rather then rheumatological”;
38.2.Re his elbows – that “I think that it is more likely then not that the elbow conditions are due to work practises (sic)…I don’t think he would have developed elbow symptomology without the work practise (sic).”.
[16] In his report dated 11 April 2008 – Exhibit 11
[17] Dated 22 May 2009 – Exhibit 13
Dr Duke saw Mr Dalby on a number of occasions. He provided 3 reports. In his first[18] he said the fact that resting him for the last 4 to 5 months did not resolve his pain. He opined that Mr Dalby “has no significant ongoing recognisable pathology caused by his work in the meatworks at any time in the recent or distant past.” By the time of his second examination and report[19] Mr Dalby’s pain had disappeared with a further 4 month’s rest and a course of high-dose corticosteroids. In his last report[20] dated 29 January 2008 he formed the view that there was no relationship between his symptoms and any work related mechanism. In cross-examination he agreed[21] that the repetitive heavy work undertaken by Mr Dalby could produce a right rotator cuff bursitis (although he didn’t form that view) and pathology and pain to the elbows. Dr Duke also said[22] that work can aggravate an underlying condition in the sense that the onset of pain would occur much earlier in the course of employment.
[18] Dated 31 October 2006 – Exhibit 23
[19] Dated 15 February 2007 – Exhibit 24
[20] Exhibit 25
[21] Transcript P1-107 L35 - 50
[22] Transcript P1-113 L28 - 46
Dr Kevat a Rheumatologist was called by Mr Dalby. He said in a telephone conversation with Mr Dalby’s Barrister (a transcript of which was accepted by him as being his evidence)[23] that he would have to conduct an examination before diagnosing rheumatoid arthritis (the positive factor along with pain in several joints would not be enough). He there also said that if Mr Dalby actually had rheumatoid arthritis already present then his work could have aggravated his condition but in so far as causation was concerned it (the work) would not be a significant contributing factor.
[23] Exhibit 29
Dr Vecchio also a Rheumatologist was called to give evidence on behalf of Swift. He, like Dr Kevat, did not examine Mr Dalby. He, after being given information that Mr Dalby was suffering incremental joint pain in his elbows, wrist and shoulder with a positive rheumatoid factor said, in a telephone with a representative of Swift (a transcript of which was accepted by him as being his evidence)[24], that “(it) is pretty indicative of it all being linked to rheumatoid arthritis….I would say his work has little or nothing to do with his symptoms…It sounds more like his work is coincidental”. In evidence before me, when discussing Dr Goldston’s findings on examination of Mr Dalby’s elbows that he had swelling over the elbow regions, Dr Vecchio said[25] that if the swelling was noted over the elbow joint then that would be a significant finding because it is a feature of rheumatoid arthritis. He further added “it is also uncommon for overuse problems and tendonitis to cause swelling to the significance that someone is able to see it.”
CONCLUSION
[24] Exhibit 28
[25] Transcript P2-4 L 7 - 16
As I said earlier in this judgment, Mr Dalby bears the onus of proving on the balance of probabilities that at the relevant times he sustained a personal injury arising out of, or in the course of his employment with Swift if the employment is a significant contributing factor to the injury.
Mr Dalby is not a reliable witness as to when he first noted symptoms of the injuries.
The Medical witnesses called have not established that Mr Dalby suffered his injuries, or any of them in the relevant periods.
Even if it had been established that he first developed symptoms associated with the injuries prior to 16 June 2006 I am not satisfied on the balance of probabilities that his employment with Swift was a significant contributing factor to any of the injuries. In saying so I prefer the evidence and conclusions of Dr Treffene over that of Dr Gillett as:
45.1.It is supported by evidence which I accept from Dr Duke;
45.2.Dr Treffene, Mr Dalby’s consultant Orthopaedic Surgeon at the time actually examined Mr Dalby when he was suffering the symptoms, made an initial diagnosis on his elbow condition and then altered that when after becoming suspicious that his initial diagnosis may not be correct he obtained a test which showed that Mr Dalby had a positive rheumatoid factor;
45.3.Dr Gillett didn’t examine Mr Dalby until 2008;
45.4.His conclusion is supported by the conclusion of Dr Vecchio whose evidence I also accept
Ultimately on the evidence before me I am not satisfied that the symptoms were not as a result of rheumatoid arthritis.
I confirm the decision of Q-Comp of 7 August 2008 rejecting the claims.
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