Granato v Workers' Compensation Regulator

Case [2024] QIRC 162

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Granato v Workers' Compensation Regulator [2024] QIRC 162

PARTIES:

Granato, Anthony
(Appellant)

v

Workers' Compensation Regulator
(Respondent)

CASE NO:

 WC/2020/94

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

 28 June 2024

HEARING DATE: 

23 – 24 June 2021

15 July 2021 (Appellant's Closing Submissions)

2 August 2021 (Respondent's Closing Submissions)

MEMBER:

HEARD AT:

Knight IC

Brisbane

ORDERS:

1.   The appeal is dismissed;

2.   The decision of the Respondent dated 20 February 2018 is affirmed.

3.   Any application for the costs by the Regulator is to be served and filed in the Industrial Registry within 28 days of this decision.

CATCHWORDS:

WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – appeal against review decision of respondent – where appellant employed as a Window Assembler – appellant diagnosed with disc protrusion/degenerative lower back condition  – whether appellant suffered an aggravation of his personal injury which arose out of, or in the course of, his employment – whether employment was a significant contributing factor – appellant did not suffer an aggravation of his personal injury which arose out of, or in the course of, his employment – review decision of respondent confirmed

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003 s 32, s 132A
CASES:

Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538

Alsco Pty Ltd v VICA Mircevic [2013] VSCA 229

Avis v WorkCover Queensland (2000) 165 QGIG 788

Burton v Workers Compensation Regulator [2021] QIRC 437

Commissioner of Police v David Rea [2008] NSWCA 199

Croning v Workers Compensation Board (1997) 156 QGIG 100

Davidson v Blackwood [2014] ICQ 008

Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190

Heald v Q-Comp (2004) 177 QGIG 769

Holtman v Sampson [1985] Qd.R 472

JBS Australia Pty Ltd v Q-COMP [2013] ICQ 13

Kavanagh v Commonwealth (1960) CLR 547

MacArthur v WorkCover Queensland (2001) 167 QGIG 100

Monroe Australia Pty Ltd v Campbell [1995] 65 SASR 16

Nilsson v Q-Comp (2008) 189 QGIG 523

Nutley v Workers' Compensation Regulator [2019] ICQ 002

Omanski v Q-Comp [2013] ICQ 7

Ramsay v Watson (1961) 108 CLR 643

Ribeiro v Workers' Compensation Regulator [2019] QIRC 203

Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262

Theiss Pty Ltd v Q-Comp [2010] ICQ 27

Wiechmann v Lovering and WorkCover Corporation [1992] 59 SASR 203

APPEARANCES:

Dr G. J. Cross of Counsel instructed by Patinos Lawyers for the Appellant.

Mr B. I. McMillian of Counsel directly instructed by the Respondent.

Reasons for Decision

  1. Mr Anthony Granato is appealing a decision of the Workers Compensation Regulator ('the Regulator') dated 19 June 2020, which confirmed a decision of Workcover to reject Mr Granato's application for assessment for permanent impairment in accordance with sections 32 and 132A of the Workers' Compensation and Rehabilitation Act 2003 ('the Act').

  2. In that decision, the Regulator concluded Mr Granato's degenerative condition to his lower back, said to have occurred over a period of time, was not an injury within the meaning of sections 32 and 132A…

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Details
AGLC
Granato v Workers' Compensation Regulator [2024] QIRC 162
Case
[2024] QIRC 162
Decision Date

CaseChat Overview and Summary

The case of Granato v Workers' Compensation Regulator involved a claim for workers' compensation by Mr Granato, who was employed as a Window Assembler. Mr Granato alleged that he had suffered an aggravation of a degenerative lower back condition arising from his employment, seeking compensation from the Workers' Compensation Regulator. The Regulator denied the claim, and Mr Granato appealed this decision. The appeal was heard and ultimately dismissed by the court, affirming the Regulator's decision.

The primary legal issue was whether Mr Granato's degenerative back condition constituted an aggravation of a personal injury that arose out of, or in the course of, his employment. This required the court to assess whether Mr Granato's employment was a significant contributing factor to the aggravation of his condition. The court considered the evidence presented, including Mr Granato's own testimony about the onset and progression of his back pain, as well as evidence from his supervisor and medical records.

The court found that Mr Granato's evidence regarding the onset and connection of his back pain to his employment was inconsistent and unreliable. The Regulator argued that Mr Granato's statements about when the pain began varied, and there was no supporting evidence from medical records or other documentation connecting his back pain to his work duties. The court accepted these points, concluding that Mr Granato had not provided sufficient evidence to support his claim of an aggravation of his condition due to his employment. Therefore, the appeal was dismissed, and the decision of the Workers' Compensation Regulator was affirmed.

In summary, the court dismissed Mr Granato's appeal against the decision of the Workers' Compensation Regulator, finding that he had not sufficiently demonstrated that his employment significantly contributed to the aggravation of his degenerative lower back condition. The Regulator's decision dated 20 February 2018 was upheld, and any application for costs by the Regulator was to be filed within 28 days of the decision.

Orders

Orders of the court

1. The appeal is dismissed;

2. The decision of the Respondent dated 20 February 2018 is affirmed.

3. Any application for the costs by the Regulator is to be served and filed in the Industrial Registry within 28 days of this decision.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Pearce disagreed with the proposition that Mr Granato was lifting window frames that weighed between 40 to 50 kilograms, on his own.[41] His evidence was that he did not observe Mr Granato struggling with either his balance or his walking.[42] Mr Granato's evidence about the onset back pain and attribution of work duties to the aggravation of his degenerative back condition[41] T 2 – 11, ll 2 – 10. [42] T 2 – 11, ll 31 – 35. Mr Granato told the Commission he resigned in mid-2018, noting he was "in pain. I had to just leave".[43] He recalled his supervisor, Mr Avi Lenieu had started to comment about his work performance around 2016.[44] His evidence was that his supervisor held the view he was not working fast enough.[45] [43] T 1 – 26, ll 1 – 2. [44] T 1 – 27, ll 5 – 9. [45] T 1 – 27, ll 21 – 27. During examination-in-chief Mr Granato responded to a question posed by Dr Cross about the timeframe within which he first experienced back pain in the following way:Now you started there in 2002 and it's not in issue that you attended upon a GP in, I think it was, May 2006, with back pain, Dr Perera, I think it was? --- Yeah. And Dr Perera was at the – I think it was at the Edens Landing? --- That's right. Now, in the period 2002 to 2016, do you remember suffering back pain at all? --- Nothing like that. No. Nothing like what? --- Got – no. Sorry? --- No back – no. Any niggles or strains? --- Not that I know. I had no problem then. You didn't miss any work – do you remember missing any work with back problems? --- Not for that – not for that reason.[46] [46] T 1 – 18, ll 0 – 16. Mr Granato's evidence in relation to his back pain was that he recalled being at work, "lifting – making – assembling frame and revealing".[47] In response to a question about whether it was a sudden pain or had come on during the day he said:Suddenly pain come – come during the day. You know, it happens.[48] [47] T 1 – 18, ll 20 – 27. [48] T 1 – 18, l 34. Mr Granato explained that his pain would ease when he went home and he would take painkillers provided to him by his doctor.[49] His initial evidence to the Commission was that the pain started around April or May 2016 and that over time his left leg gradually became weaker, and he felt a numbness in his feet.[50] [49] T 1 – 18, ll 39 – 45. [50] T 1 – 19, ll 22 – 42. Mr Granato's further evidence in relation to his back pain was:·He was advised by his specialist that the problem with his back was a "worn out disc";[51] ·The pain gradually worsened;[52] ·He wanted to find out what was causing the loss of balance in his leg;[53]·He experienced weakness in his leg in 2017;[54] ·He could barely walk in 2017;[55] and·He did not want to tell anyone about his pain because he was worried he would lose his job.[56] [51] T 1 – 20, ll 0 – 9. [52] T 1 – 22, ll 0 – 14. [53] T 1 – 22, ll 10 – 11. [54] T 1 – 22, ll 44 – 45. [55] T 1 – 23, ll 0 – 5. [56] T 1 – 23, ll 35 – 45.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

However, the materials before the Commission, including records of toolbox meetings and manual handling training notes tendered by the Regulator demonstrate that during the relevant period, training was provided to Breezeway employees, including Mr Granato, in respect of safety and manual handling processes. Similarly, I accept Breezeway had an established Safe Work Instruction within the workplace which contained detailed instructions in respect of the safe lifting of glass and other products. In this respect I accept Mr Granato would, more likely than not, have possessed a reasonable understanding of the acceptable weights and circumstances where a multi-person lift of a frame was required.Consideration – the reporting of the onset of pain and the connection with Mr Granato's work activities Mr Granato maintains he first experienced pain while he was at work. However, in his evidence, he was unable to identify the particular activities he was undertaking at the time or the date when he became aware of the pain, other than to say that he was lifting frames and twisting and turning when the pain came on around April or May 2016.[130] He explained that his condition worsened over time, and he experienced increasing pain and numbness in his left leg in 2017.[131][130] T 1 – 43, ll 5 – 14. [131] T 1 – 23, ll 0 – 15. The Regulator submits Mr Granato's evidence of when his back pain began is inconsistent and unreliable[132] for several reasons, including:·Initially he reported the onset of symptoms in July 2016, with the Form 132A recording the period of time over which the injury arose commencing as at 26 July 2016;[133] ·During the proceedings he changed his position and said the pain commenced around Easter 2016, which was at the end of March of that year;[134] ·He was not working over the Easter period in 2016, whereafter he claimed the pain began;[135] and ·He was unable to identify a specific date when the pain commenced in his evidence, despite earlier confirming the pain commenced on 26 July 2016.[136] [132] The Regulator's Closing submissions filed 2 August 2021 [57].[133] Exhibit 13; The Regulator's Closing submissions filed 2 August 2021 [58].[134] The Regulator's Closing submissions filed 2 August 2021 [58].[135] Ibid, [59].[136] Ibid, [58]. It is further submitted that Mr Granato's assertion that he told Dr Perera about work contributing to his back pain is entirely unsupported by the independent medical records.[137] [137] Ibid, [52]. Certainly, other than on one occasion when Mr Granato attended an appointment with Dr Perera on 12 June 2018, it is correct that there is no record of either he or Dr Perera connecting his back pain with his work duties. Even then, on that occasion, the consultation notes for Mr Granato's appointment recorded:Tuesday June 12 2018 14:56:32Dr Krishani Perera Visit type:Surgery Consultation History:on BP medication. back pain and poor sleep, pain has got better when not working.snoring at night.has done the sleep study, but has not followed up it [sic] properlly[138] [138] Exhibit 2, 7.