Howard v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 45
•28 February 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Howard | v | Simon | Blackwood | (Workers' |
Compensation Regulator [2014] QIRC 045
| PARTIES: | Howard, Warren | ||||
| (Appellant) | |||||
| v | |||||
| Simon Blackwood (Workers' Compensation Regulator) | |||||
| (Respondent) | |||||
| CASE NO: | WC/2013/103 | ||||
| PROCEEDING: | Appeal against a decision of Simon Blackwood | ||||
| (Workers' Compensation Regulator) | |||||
| DELIVERED ON: | 28 February 2014 | ||||
| HEARING DATES: | 11 to 14 November 2013 | ||||
| 13 January 2014 (Respondent's Submissions) 10 February 2014 (Appellant's Submissions) 24 February 2014 (Respondent's Submissions in reply) | |||||
| MEMBER: | Industrial Commissioner Thompson | ||||
| ORDERS : |
|
confirmed.
3. The Appellant is to pay Respondent's
costs of and incidental to this Appeal to be agreed or failing agreement to be the subject of a further application to the Commission.
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Simon Blackwood (Workers' Compensation Regulator) - Appellant bears onus of proof - standard of proof - balance of probabilities - Appellant a worker - Appellant to establish he suffered a personal injury - whether injury arose out of, or in the course of, employment and whether employment was a significant contributing factor - Appellant failed to establish, on the balance of probabilities, that injury arose out of, or in the |
| course of, employment - employment was not a | |
| significant contributing factor to the injury - Appeal dismissed - decision of Regulator confirmed - Appellant to pay Regulator's costs. | |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 |
| s 11, s 32(1). s 32(3), s 132(3), s 258(1), s 550, s 558, Regulation 85 Browne v Dunn (1893) 6 R. 67, H.L Labaj v WorkCover Queensland [2003] 174 QGIG 370 Ivey v WorkCover Queensland [1999] 162 QGIG 392 | |
| Chapman v University of Southern Queensland | |
| Student Guild [2010] QDC 318 Qantas Airways Limited v Q-COMP [2006] 181 QGIG 301 | |
| Minh Lai Nguyen v Cosmopolitan Homes (NSW) | |
| Pty Ltd [2008] NSWCA 246 | |
| Newberry v Suncorp Metway Insurance Ltd | |
| [2006] QCA 48 | |
| Croning v Workers' Compensation Board of | |
| Queensland [1997] 156 QGIG 100 Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34 | |
| Pleming v Workers' Compensation Board of | |
| Queensland [1996] 52 QGIG 8 Bradshaw v McEwans (1951) 217 ALR 1 at 6 Chattin v WorkCover Queensland [1999] QIC 44 | |
| APPEARANCES: | Ms L. Willson, Counsel instructed by Shine Lawyers for the Appellant. Mr A. Johnson, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. |
[1] On 28 March 2013 Warren Howard (Howard) lodged with the Industrial Registrar a Notice of Appeal pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Q-COMP Review Unit (Q-COMP) released on 1 March 2013. Since the filing of the Appeal, a number of amendments have been made to the Act which included the Respondent to the Appeal being abolished and from 29 October 2013, the new name replacing Q-COMP is that of Simon Blackwood (Workers' Compensation Regulator) (the Regulator) who, in turn, becomes the Respondent to the Appeal.
[2] The decision of the Regulator was to set aside the decision of WorkCover to accept Howard's Notice of Claim for Damages and substitute a new decision that the claim is one for rejection in accordance with s 32 and s 258 of the Act.
Relevant Legislation
[3] The Legislation pertinent to this Appeal are s 32 and s 258 of the Act:
"32 Meaning of injury
(1)
An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury."
"258 Access to damages if claimant has not lodged application for
compensation
(1) The claimant may seek damages for the injury only if the insurer -
(a) decides that the claimant - (i) was a worker when the injury was sustained; and
(ii) has sustained an injury…".
Nature of Appeal
[4] The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant.
Standard of Proof
[5] The standard of proof upon which an Appeal of this nature must be determined is that of "on the balance of probabilities".
Evidence
[6] In the course of the proceedings, evidence was provided by 16 witnesses.
[7] The Commission, in deciding to précis the evidence of the witnesses, and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety.
Witness Lists
[8] The witnesses for the Appellant were as follows:
Howard; Natalie Rush (Rush); Dr Francis Tomlinson (Dr Tomlinson); Dr Peter Lucas (Dr Lucas); Dr Janet Sharpe (Dr Sharpe); Dr David Winkle (Dr Winkle); Lisa Howard (Lisa Howard); Dr Andrew Byth (Dr Byth); and Dr Marc Walden (Dr Walden). [9] The witnesses for the Regulator were as follows:
Kirsty Kneen (Kneen); David McGrath (McGrath); Neville Ihle (Ihle); Paul Beaton (Beaton); Peter Ryan (Ryan); Dr Paul Licina (Dr Licina); and Craig Paddon-Jones (Paddon-Jones). Appellant
Howard
[10] Howard was working for Steelrod Pty Ltd (Steelrod) on 2 February 2010 when he suffered an injury to his back which was not a contentious issue and whilst he was in pain, lost no time from work. The injury subject to the Notice of Claim was said to have occurred on 3 March 2010 when lifting "big plates" of steel by hand as the leading hand (Ihle) had taken the forklift away. The size of the steel plates were said to be 1280 x 240 millimetres, weighed about 30 to 35 kilograms and he was required to lift them on to a table some 700 millimetres off the ground. The task took around 30 minutes. At morning tea, he took a "few codeine" and continued to work with pain described as "a good nine" which eventually led to him leaving work with the permission of the employer at 1.45 pm.
[11] Howard travelled home on his motorcycle and upon arriving home required the assistance of his wife to take off his leather pants and jacket. A phone call was made to Rush, a Physiotherapist, seeking treatment for his injury and having been given an appointment, he again rode his bike, this time to receive treatment and then home again. Again he required assistance to undress and, on arriving home, called an ambulance to take him to the Redcliffe Hospital which was as a result of advice given by Rush.
[12] Howard was admitted to hospital at Redcliffe on 3 March 2010 and transferred to the Royal Brisbane Hospital on 16 March 2010. Howard's other evidence included the acknowledgement that prior to the injury of 2 February 2010 he was in the process of painting the inside of his home and that he had a motorcycle accident in Gladstone in 2006 where he was jettisoned over a car but was basically uninjured and went to work that day.
[13] Under cross-examination, Howard gave evidence of being interviewed for a position at Steelrod on 1 February 2010, being taken on a tour of the factory, shown where he was to be working and the type of precision work he would be undertaking [Transcript p. 1-29]. Howard was offered a position and commenced the next day. In terms of safety induction, he gave evidence that it was not until 25 February 2010 that he completed his formal induction. Questions were put to Howard regarding the incident involving the use of Perspex with him refusing to accept that the thickness was three millimetres, instead he claimed it was 19 millimetres thick [Transcript p. 1-39]. Regarding that incident of 2 February 2010, Howard's evidence was that he did not formally report the matter [Transcript p. 1-42]. The weight of the Perspex involved in the accident was more than the 10 to 15 kilograms suggested by Counsel in cross-examination [Transcript p. 1-44].
[14] Howard gave evidence that throughout the month of February 2010 he was seeing a General Practitioner and having physiotherapy treatments [Transcript p. 1-47]. In that month, when carrying out a task with Ihle, he was having some difficulty manoeuvring, but denied he had informed Ihle that he was having some follow-on difficulties as a result of a motorcycle accident [Transcript p. 1-48]. Howard denied telling Paddon-Jones that he was having difficulties bending down as a result of a motorcycle accident [Transcript p. 1-49].
[15] On 3 March 2010 he was given the task of working with steel plates that required painting and in the course of the task the plates had to be "flipped" over [Transcript p. 1-51]. The Commission was shown a video of the task in question with Howard affirming the process with some minor differences [Transcript p. 1-56]. Another video was played in the Commission which, amongst other things, identified the location of a number of pallets which Howard conceded reflected accurately the work situation he was in on 3 March 2010 [Transcript p. 1-58]. Howard further conceded the steel plates depicted in the video were smaller than he had described in evidence [Transcript p. 1-59]. Howard did not accept that on 3 March 2010 the steel plates were put on the trestle by the forklift [Transcript p. 1-66], nor did he accept that when a forklift was unavailable, there was an assistant tasked to help. The time of first experiencing pain was said to be 8.30 am and Howard did not accept he had told Dr Tomlinson the event occurred around 11.00 am [Transcript p. 1-67]. He raised the issue of pain with Ihle but at no time did he log the incident [Transcript p. 1-68]. Howard accepted he was aware of the requirement to fill out an incident report form as he had completed the safety induction prior to 3 March 2010 [Transcript p. 1-89].
[16] Howard's evidence was that on returning home on 3 March 2010 he had to have assistance from his wife to remove his "leathers" yet was able to put the "leathers" back on to ride to a Physiotherapist [Transcript p. 1-90]. Upon arriving home from the Physiotherapist, his wife had to assist him off the motorcycle [Transcript p. 1-91]. Howard was unable to remember the Ambulance Officers who responded to a call to his house as he "was high as a kite" at the time [Transcript p. 1-92]. Howard had no independent recollection of what he told the Ambulance Officer, in particular about his history or having painted the house and gardened the previous day [Transcript p. 1-93]. Howard was unable to recall what he had informed medical staff at the Redcliffe Hospital [Transcript p 1-94]. Where the medical records showed "recurred this morning at work while walking", Howard had responded "they wouldn't be making it up" [Transcript p. 1-95]. Howard accepted the content of medical notes from 2008 that stated "Injured back at work in late October. Since then, pain down left leg to ankle. CT shows narrowing exit foramen at L5/S1" [Transcript p. 1-96].
[17] Howard gave evidence of not undertaking any painting work at his house between 2 February and 3 March 2010 and could not explain why the Ambulance Officer's report had reference to him painting in between those dates [Transcript p. 1-97]. With regards to Howard being "as high as a kite" on 3 March 2010, he did not accept the proposition that he was oriented and in control of his faculties at the time. Howard also claimed to have had a couple of glasses of rum and moments later suggested it was "only a couple of swigs" and "you wouldn't smell it" [Transcript p. 1-98]. Despite a statement from his wife that he had struggled with painting following the workplace incident of 2 February 2010, Howard continued to maintain he had not been painting in that period [Transcript p. 1-99]. Howard denied he had a pre-existing injury prior to 3 March 2010 [Transcript p. 1-100].
[18] On visits to Dr McAuley in February 2010 where the clinical notes recorded a visit regarding back pain (on 1 February 2010) and MRI results that were similar to 2008 (15 February 2010), Howard accepted Dr McAuley was aware of his history regarding his back conditions [Transcript p. 1-102].
[19] Howard conceded he had not disclosed his prior back pain in his employment application at Steelrod (on 1 February 2010) and would only have provided that information if he was asked [Transcript p. 1-103]. Howard also conceded he visited Dr McAuley on the morning he applied for the position at Steelrod but did not accept the failure to disclose information about previous injuries, illness or disabilities was meant to mislead the employer [Transcript p. 1-108]. In terms of discrepancies in medical reports regarding the incidents of 2 February and 3 March 2010, Howard's evidence was he had given the specialist his notes and left it up to them to record the information.
[20] Howard gave evidence of preparing a set of notes in 2012 relating to the history of his injury and offering them to doctors he was required to see [Transcript p. 2-23]. Howard accepted that on 3 February 2010 both Paddon-Jones and Ihle had observed his walking gait, however he disputed they were a precursor for conversation they had about whether he could lift or bend [Transcript p. 2-24]. Howard recalled completing a safety induction on 26 February 2010 and of the obligation to advise of incidents or near misses at work [Transcript p. 2-25]. The safety induction included a briefing about safe lifting techniques. Howard did not agree with the proposition that at the induction Beaton had, in the course of his instruction, spoken about his wife having suffered an L4 or L5 injury, although he had given evidence of that occurring only moments prior [Transcript p. 2-27].
[21] Regarding the incident of 3 March 2010 Howard agreed that on the day he never told Paddon-Jones or Ihle that he had injured himself at work but was positive they knew [Transcript p. 2-29]. Howard denied that at the time he did not want the employer to become aware of his back pain that existed prior to and in the currency of his employment.
[22] Howard was questioned on not having submitted incident reports for the events of 2 February 2010 and 3 March 2010 and was somewhat evasive in responding to the question, eventually conceding the incidents had not been logged with the employer [Transcript p. 2-46].
[23] In re-examination, the evidence was that Howard was not required to undertake a medical examination prior to commencing employment with Steelrod, although Paddon-Jones had mentioned he should have had one due to having Type 2 Diabetes. Howard confirmed he spoke to Paddon-Jones on 2 February 2010 regarding his injury [Transcript p. 2-55], but did not report the injury formally. Howard's memory of the Ambulance Service taking him from his home to the Redcliffe Hospital was vague and he did not recall Dr Sharpe from the Redcliffe Hospital [Transcript p. 2-57].
Rush
[24] Rush, a registered Physiotherapist, first saw Howard on 23 February 2010 when he was having problems with his back. He had previously been treated by a colleague of Rush at the same practice and his condition was getting worse. Howard was seen again on 26 February 2010 where he informed her the pain in his leg had started to reduce. On 3 March 2010 he attended her clinic in severe pain advising that "his pain had increased severely" despite being good after his previous treatment on and he was now getting a burning sensation in his left leg. Prior to 3 March 2010 he had been reporting pins and needles in his leg. Rush recommended that Howard apply ice over the next 24 hours and rest with no aggravating activities. Rush recalled he had ridden his motorcycle to the appointment telling her he felt more comfortable on the bike rather than a car. In terms of the type of injury Howard was suffering, it was Rush's opinion "there was a disc injury of some sort or otherwise inflammation, something causing pressure on the nerve". Rush indicated at the time she had considered calling an ambulance but Howard had refused to go to hospital.
[25] Under cross-examination, Rush's evidence was Howard was referred to the practice by Dr McAuley and seen by a colleague on 4 February 2010. She had read notes regarding the referral which had Howard suffering leg pain symptoms aggravated by walking [Transcript p. 1-76]. On 3 March 2010 she had assisted Howard to remove his motorcycle gear and put it back on [Transcript p. 1-77]. Rush acknowledged that on 3 March 2010 it was possible that Howard had some pain before going to work that became amplified. Rush gave evidence of seeing investigations from the Southern X Ray Clinic where comment was made in relation to a 2008 situation which had not changed in the 2010 situation [Transcript p. 1-78].
Dr Tomlinson
[26] Dr Tomlinson, a Neurosurgeon, provided two medico-legal reports dated 20 October 2011 [Exhibit 13] and 20 May 2013 [Exhibit 14].
[27] In the report of 20 October 2011 he reported that Howard sustained his personal injuries at 11.00 a.m. on 3 March 2010 and made reference further on in the report of Howard suffering an episode of back pain and lower extremity symptoms in 2008 as well as suffering back pain in February 2010, at his second day on the job. Dr Tomlinson assessed Howard with a 28 percent whole person impairment as a result of the 3 March 2010 injury. In the 20 May 2013 report, Dr Tomlinson made reference to a number of ongoing issues all said to have arisen from the 3 March 2010 injury.
[28] Under cross-examination, Dr Tomlinson informed the Commission that the March 2010 event was the major contributing factor to his condition as he had kept working after the February 2010 incident [Transcript p. 1-83]. Dr Tomlinson had no recollection of why he noted the time of the accident on 3 March 2010 as 11.00 am, nor did he have knowledge of some of the other medical treatments Howard was receiving around that time indicating in evidence "all I've got is what I've got" [Transcript p. 1-85]. All sources of information regarding Howard's history and the events of 3 March 2010 had been provided to him by Howard or his representatives. Dr Tomlinson was unable to answer questions regarding previous WorkCover claims that may have been made by Howard [Transcript p. 1-87].
Dr Lucas
[29] Dr Lucas, an Orthopaedic Surgeon, performed surgery on Howard (8 April 2010) for a L4/L5 disc protrusion as a result of an injury that occurred at work, describing the circumstances where most people who have a disc protrusion will have a degenerative phenomenon of some description which was previously non-symptomatic and is age appropriate. Dr Lucas gave evidence that the lifting of the steel plates by Howard said to weigh 25 kilograms each would have the potential to cause his protrusion.
[30] Under cross-examination, Dr Lucas was questioned on aspects of Howard's medical history of which he was not previously aware and in particular, a CT scan from 2008 and an MRI from 12 February 2010. Dr Lucas accepted that the two showed similar findings and that Howard had the symptomotology of a degenerative back [Transcript p. 2-10]. Clinical notes from Howard's consultation with Dr McCauley on 1 February 2010 were put to Dr Lucas which made mention of Howard:
attending for back pain; having a care plan over a year ago; scan (one year previous) advised of L4/5 lesion; had been using NSAID regularly; and had exerted himself one month ago, lower back pain and the examination
noticed distilled tenderness over the L4/5 region.[31] Dr Lucas confirmed not having access to this information as well as the clinical notes from the Redcliffe Hospital [Transcript p. 2-11]. Whilst accepting Howard's history of back pain was evident in the six months prior to the March incident, there was no evidence of "a very large disc protrusion" [Transcript p. 2-12]. Dr Lucas agreed with the proposition that painting a ceiling with a pre-existing back injury could bring on a prolapse the same as lifting [Transcript p. 2-13]. Dr Lucas conceded disc protrusion would be less likely caused by walking and more commonly by lifting and twisting [Transcript p. 2-14].
[32] In re-examination, Dr Lucas described the difference between a disc bulge and a disc protrusion with his opinion being on 12 February 2010 Howard had a substantial disc bulge and not necessarily a protrusion [Transcript p. 2-15]. Dr Lucas indicated it was not common, in fact very rare, that walking would bring on a disc protrusion or a further disc failure, but that lifting under load and twisting was a risk factor [Transcript p. 2-18].
Dr Sharpe
[33] Dr Sharpe, on 4 March 2010, was a medical intern at the Redcliffe Hospital and whilst she treated him, she had no recollection of Howard. Dr Sharpe provided the Emergency Department Clinical Records [Exhibit 17] regarding Howard's treatment.
The record contained the following entry:
"52 yo man with lower back pain. today."
HPC: Past Hx of L4/5 disc bulge from 2008. 4/52 ago, recurrence of severe
lower back pain with L sciatica while lifting metal at work. Improving with
physio.
Recurred this morning at work, while walking. Lower back pain. L buttock
pan and pain down lateral L lower leg and anterior ankle. Decreased sensation
over lateral lower leg, ant ankle and lateral 3 toes. Now unable to mobilise.
Pain 8/10.
[34] Under cross-examination, Dr Sharpe confirmed the veracity of her note taking [Transcript p. 2-21].
Dr Winkle
[35] Dr Winkle, a Urological Surgeon, prepared a medico-legal report on 17 January 2013 [Exhibit 18] gave evidence of taking a history from Howard and of having relied upon that information. The report suggest that Howard had suffered a back injury on 2 February 2010 lifting an 80 kilogram piece of Perspex and experienced a further episode the following day whilst lifting heavy objects. The report identified the injury of 2 February 2010 as contributing to changes in bladder and bowel function.
[36] Under cross-examination, Dr Winkle informed the Commission that the reference to the 80 kilogram piece of Perspex in his report was based on the history provided by Howard [Transcript p. 2-41]. Dr Winkle was unaware of any previous history of alteration in the bladder function prior to the events described but Howard's symptoms suggested that whatever back associated problem he had was affecting his urinary tract [Transcript p. 2-42]. Dr Winkle accepted that the reading of his report gave the impression Howard's back pain really started in terms of bulging and the start of the episodic aspects of his functioning [Transcript p. 2-42].
Lisa Howard
[37] Lisa Howard, the wife of the Appellant, gave evidence that she observed Howard on 2 February 2010 when he arrived home from work "to be a bit stiff, or not moving as freely as normal". Prior to that date he had been undertaking house painting activities on their place of residence, however according to her, whilst he undertook no house painting activities from 3 March 2010, she could not tell "verbatim" exactly which rooms he was doing between those two dates. He was somewhat slower with his painting after 2 February 2010 and there were some nights when he could not paint at all. Lisa Howard was aware Howard had a motorcycle accident in Gladstone in 2006.
[38] Lisa Howard recanted conversations with her husband about particular physiotherapy treatments he had regarded as rough and of changing to Rush. She recalled in the period between 2 February and 3 March 2010 that Howard complained of pain, stiffness and of some days being painful however he had not complained of "dreadful" pain. She recalled him arriving home just after lunch on 3 March 2010 and of having to help him off his motorcycle. He later left on his motorcycle to attend a Physiotherapist, despite her objections to him not travelling by car. On his arrival home from the Physiotherapist, Howard told her not to call anyone to assist him however she did call an ambulance that arrived at their home around 9.00 pm. Howard was later stretchered from the house to the ambulance.
[39] Since the accident in March 2010, Howard had become a "whole different person constantly in pain, depressed [easily] confused and forgetful". Lisa Howard gave evidence of taking painkilling medication to Howard at work in February 2010, the day after he had hurt himself and of telling a person at the reception desk the reason he needed the medication.
[40] Under cross-examination, questions were put to Lisa Howard which challenged her independent recollection of events around 2 February 2010 which she disagreed with [Transcript p. 3-14]. The painting of the family home had commenced around January 2010 with Howard painting walls and ceilings with a roller on a pole [Transcript p. 3-15]. Her evidence was that Howard continued to perform painting work throughout February 2010 although there were some nights when he was not able to [Transcript p. 3-16].
Byth
[41] Byth, a Psychiatrist, provided a medico-legal report dated 14 October 2012 [Exhibit 21]. The report confirmed that Dr Byth had interviewed Howard on 30 August 2012 in which he complained of adverse effects from two back injuries at work in February 2010 and 2 March 2010. Howard had no previous psychiatric problems prior to 2010 however since his 2010 back injuries, had been on anti-depressants. Howard's diagnosis under DSM-IV was of major depression with prominent associated anxiety symptoms.
[42] The psychological treatment afforded Howard since 2010 was primarily of support by his General Practitioner and prescription anti-depressants along with a brief period of counselling with a Psychologist in 2011.
[43] Overall, the documentation supplied to Dr Byth was said to be consistent with Howard's stated physical injuries at work in 2010 and that as a result of those back injuries had developed a psychiatric condition.
[44] Dr Byth gave evidence of the difference between the nature of depression and an adjustment disorder and, in his mind, there was no question that Howard suffered from major depression.
[45] Under cross-examination Dr Byth gave evidence describing neuro-vegetive symptoms of major depression as being:
poor concentration; difficulty focussing on tasks; and difficulty remembering [Transcript p. 2-85]. Dr Walden
[46] Dr Walden, a Specialist Pain Medicine Physician, prepared two medico-legal reports in relation to Howard on 15 August 2012 and 4 March 2013 [Exhibits 22 and 23].
[47] Dr Walden, in the 15 August 2012 report, provided details of Howard's injuries of 2 February 2010 when he was feeding a piece of Perspex weighing 80 kilograms into a sawbench and 3 March 2010 experiencing pain whilst lifting plates of steel weighing between 35 and 40 kilograms. In the 15 August 2012 report, Dr Walden opined that there were no pre-existing injuries, conditions or factors contributing to Howard's condition and that his main complaint (neuropathic pain, arachnoiditis, neurological damage) mainly arose from complications of the surgery required to remove his L4 intervertebral disc. His pre-existing degenerative changes (CT scan 2008) contributed only to the predisposition for him to develop the prolapsed disc not the complications that have arisen from its removal.
[48] Under cross-examination, Dr Walden indicated the information regarding the weight of the Perspex (80 kilograms) had come from Howard. On matters that were causative of either the bulge or prolapse, Dr Walden accepted he would defer to an Orthopaedic Surgeon [Transcript p. 3-9]. Dr Walden agreed from his perusal of Howard's medical information that Howard had an accident in October 2008 that had given him pain radiating down his left leg [Transcript p. 3-10]. According to Dr Walden, he was not informed of Howard attending his General Practitioner on 1 February 2010 or the history of that consultation [Transcript p. 3-11].
Regulator
Kneen
[49] On 3 March 2010 Kneen was an employee of the Queensland Ambulance Service and on that day attended Howard at his place of residence. On arrival at the scene, she took information from him which she recorded in documented form required by the Service. The Consolidated Copy was tendered in the proceedings [Exhibit 20] and contained information that included:
"Call received: 20:56 Arrival at scene: 21:33 Patient Loaded: 21:54 Arrival at Redcliffe Hospital: 22:19 Initial Assessment - back pain
Case History
Case Nature musculoskeletal problem,>> back pain - sciatic pain Case Description OA---> pt sitting on chair unable to get comfortable due to severe spasming lumbar/sacral back pain radiating down L) leg, altered sensation in 2 middle toes, pins and needles in outer calf. pt hx back injury 2/52 ago, pt states though it was better and began painting house yesterday and gardening, pain commenced again this am approx 9am, pt states has taken 20 nurofen in past 12 hours and 5 panadeine forte in hour prior to qas arrival. OE---> pt hypertensive, other vss wnl, pt pain relieved by 3mL methoxyflurane and 2.5mL morphine IV. pt able to walk with assistance to stretcher. nil other abnormality detected. -----ALL TREATMENTS ADMINISTERED UNDER DIRECT SUPERVISION OF ACP---
Final Assessment - back pain".
[50] Kneen had no recall of Howard informing her of having consumed rum on that day and had he done so it would have been included in her paperwork. Her observation of Howard was that he was not in an altered conscious state and he was able to walk to the ambulance with assistance. Further he was able to articulate clearly in response to questions put to him. There were two Officers in attendance, including Kneen.
[51] Under cross-examination Kneen informed the Commission that she had a very vague independent recollection of the evening of 3 March 2010 relying upon the paperwork [Transcript p. 2-77]. Each of the Officers assisted Howard to the ambulance with one under each arm. On pain management, Kneen indicated that morphine was not administered unless a patient was in significant pain [Transcript p. 2-78].
[52] In re-examination, Kneen confirmed the reference in the report regarding Howard painting the house and gardening was correct [Transcript p. 2-80].
McGrath
[53] McGrath, a Fitter and Turner employed by Steelrod, gave evidence that February or March 2010 he was having a conversation with Howard in the smoko room at Steelrod's work premises where Howard had mentioned he was painting the ceiling at home and it was playing havoc with his back and further mentioned he had previously had trouble getting on and off his motorcycle due to a back problem.
[54] Under cross-examination, McGrath's evidence was that Howard was generally talking to all in the lunchroom and the painting (subject of the discussion) was occurring in that week not prior to him commencing employment with Steelrod [Transcript p. 3-28]. McGrath did not mention the incident at the time and only came forward when he heard the company was being sued. Whilst Howard was at Steelrod, McGrath had never worked with him, never witnessed any workplace health and safety incident, nor had any idea of any of the events involving Howard [Transcript p. 3-29].
[55] In response to a question from the Commission, McGrath informed that he had passed on the details of the smoko room discussion "a good year or two later" [Transcript p. 3-30]. Whilst having not worked with Howard, he was aware that his work entailed:
bending; lifting heavy pieces of equipment; and lifting and painting steel plates [Transcript p. 3-32]. [56] In terms of his own working circumstances, McGrath's evidence was he would lift up to 20 kilograms and for something heavier generally get some help [Transcript p. 2-33].
[57] In re-examination, McGrath confirmed that on either 2 February 2010 or 3 March 2010 he had never observed Howard undertaking any of his duties [Transcript p. 3-34].
Ihle
[58] Ihle, a Leading Hand in the assembly section at Steelrod, appointed to that position in February 2010, gave evidence of being a First Aid Officer and the manner in which persons injured on site were treated which included access to a private medical centre. There was a requirement to complete incident report forms by persons injured. In his role as Howard's supervisor between 2 February 2010 and 3 March 2010, Howard had never verbally reported any workplace incidents or filled out an incident report form. Ihle described the aspects of Howard's role and of direction given to Howard on the commencement of his employment.
[59] Ihle noticed, in the course of Howard's employment, he had difficulties performing some tasks where he was required to bend and had raised the matter with Howard who mentioned he had been involved in a couple of motorcycle accidents and was undergoing physiotherapy treatment but not for anything specific. There was no mention of having hurt his back at work. On the last day of work at Steelrod, Howard was complaining about soreness of his hip and back at which time Ihle told him he should see a doctor.
[60] The method of work required all heavy items to be lifted by forklift, generally above 20 kilograms in weight and work was carried out on trestles to avoid bending wherever possible. Ihle was shown a video [Exhibit 11] in which he was depicted performing the tasks Howard was undertaking on 3 March 2010 and provided commentary on the task. Howard had never been instructed to lift the steel plates by himself and Ihle had not witnessed such lifting by Howard. During the month of February 2010 Howard had never approached Ihle in terms of an inability to perform certain tasks.
[61] Under cross-examination, Ihle gave evidence of completing a safety induction carried out by Beaton and of becoming a First Aid Officer in 2010. In respect of the 2 February 2010 incident, he was clear the Perspex was three millimetres in thickness and not 19 millimetres as claimed by Howard [Transcript p. 4-13]. Ihle would see Howard at work every day and shortly after he started he noticed he had problems bending down. Howard had spoken about having a sore hip and a previous motorcycle accident which Ihle had assumed were related. There had also been reports of a sore back [Transcript p. 4-15]. Ihle could not initially recall an approach by Howard on 3 March 2010 to go home because he could not perform his duties, however later conceded it was possible that Howard may have asked to home and Ihle would have checked it with the bosses for approval [Transcript p. 4-17].
[62] On 3 March 2010 Howard's work activities were the painting of steel plates in shed one with the steel to come from shed one from shed four on a forklift. Once the steel is placed on the ground he had witnessed people lifting the steel by themselves and had done so himself even though he did not like that happening [Transcript p. 4-18]. Ihle had lifted such plates from the ground to the trestles without assistance [Transcript p. 4-19].
[63] In re-examination, Ihle described the manual handling technique he used when lifting the steel plates [Transcript p. 4-20].
Beaton
[64] Beaton, a Safety Consultant with nine years experience in occupational health and safety, was providing a consultancy service to Steelrod in 2010 as a sole trader. On 25 February 2010 he conducted a safety induction course for three employees, including Howard, with the course focussing on:
safety policy; rehabilitation; return to work; risk management; EEO discrimination; harassment; bullying; vehicle movement; drug and alcohol; chemicals; and evacuation procedures. [65] The course dealt specifically with incidents that could occur on site, including "near misses" and of the requirement to complete various forms such as incident report forms. In the case of injuries, those injured would obviously seek first aid and then fill in an incident report form. There is also a requirement to notify the supervisor as soon as practically possible. If an employee was unable to complete an incident report form once they had verbally informed a supervisor of the incident, the supervisor would fill out the form with input from the employee. Incident report forms were readily available in the workplace. The induction course focussed on aspects of manual handling which Beaton relayed an event regarding an injury suffered by his wife. Advice was given on lifting aids that were available in the form of forklifts, cranes and gantry cranes.
[66] Beaton's evidence was that Howard had never requested him to print off an incident report form.
[67] Under cross-examination, Beaton indicated he was still working at Steelrod and in 2010 was on site about once a fortnight. He confirmed he was a qualified Workplace Health and Safety Officer and that the induction course on site usually commenced around 7.00 am. In 2010 he had not conducted a risk assessment on manual handling or lifting steel plates [Transcript p. 3-67]. He had not observed any risks associated with taking material off the forklifts on site and his advice was if a forklift was not available, wait until one was [Transcript p. 3-68].
[68] Beaton was aware Howard left work on 3 March 2010 alleging he had suffered a back injury but he had been unable to complete an incident report due to not being able to contact Howard. Beaton conceded he had authored an email on 25 March 2010 about his investigation into the 3 March 2010 incident but had not completed an incident report due to no input from Howard [Transcript p. 3-69]. Beaton did not accept that employees lifted material or equipment up to 25 kilograms and they have been informed through the induction process not to [Transcript p. 3-71].
[69] Beaton's role as safety advisor to Steelrod included:
safety audits; safety induction and handbook; safe work procedures; chemical safety; and plant and equipment safety. [70] Safety procedures devised by Beaton were not independently audited but were subject to consultation with mainly long-term staff members [Transcript p. 3-80]. There was no worksite health and safety committee as this concept had been refused by the employees. In terms of reporting, that was to two Directors and the Office Manager [Transcript p. 3-81]. Beaton confirmed his arrangement with Steelrod is by way of a casual contract. He has access to workers' compensation data which he checks on a regular basis and liaises with WorkCover on running claims [Transcript p. 3-82]. Through the monitoring of claims, he found there were a lot of minor claims but none of a major type [Transcript p. 3-83].
[71] It was Beaton's evidence that he would be surprised to find employees manually lifting beyond 25 kilograms [Transcript p. 3-84]. With regards to an email request to WorkCover regarding the costs to date of Howard's compensation claim as at 20 August 2010, it was Beaton's evidence that he was curious because of it reaching a cap which occurred when a claim reached $175,000 [Transcript p. 3-87]. Beaton accepted large claims impacted on workers' compensation premiums, but did believe that made him look bad. Beaton did not recall a conversation with Howard at the safety induction when Howard allegedly complained of a sore back [Transcript p. 3-90].
[72] In re-examination, Beaton could not recall if anyone had stayed behind after the induction course held on 25 February 2010 or if he had any conversation with Howard on matters other than the content of the safety induction [Transcript p. 3-95].
Ryan
[73] Ryan, a Consulting Structural Engineer, prepared a report [Exhibit 26] on 31 January 2013 which contained calculations of a quantum effort of 12.79 kilograms when engaged in the side-over-side movement of a 25.55 kilogram piece of flat steel with the quantum effort of an end-over-end movement being 13.52 kilograms. Ryan had, in the course of preparing his report, visited the site and looked at a video [Exhibit 11] of the task.
Dr Licina
[74] Dr Licina, an Orthopaedic Surgeon, prepared a medico-legal report on 27 July 2012 [Exhibit 27]. Dr Licina offered the following opinion regarding Imaging and Causation at page 12 of the report:
"Imaging
Imaging demonstrates pre-existing lumbar degeneration with a prolapse at L4-5 in 2008. The appearances are similar on MRI scan after the March 2010 injury with the likelihood of a small extension of the prolapse having occurred causing left L5 nerve root compression. Subsequent imaging demonstrates evidence of surgery, multiple recurrences, dural injury, arachnoiditis, haematoma and fusion.
Causation
The cause of Mr Howard's problem is complex. The cause of his original disc prolapse of March 2010 is a combination of the pre-existing disc prolapse and the aggravation. There is a question whether this aggravation occurred on 2 March painting his house or 3 March while lifting. Had his back been normal it is unlikely that he would have suffered a disc prolapse. Had he not suffered a disc prolapse at the time it is possible it would have worsened as there was significant pathology present even without the incident. His current state is a complication of the pathology of disc prolapse and particularly the subsequent surgeries. Without these he may have some back and leg pain but would not have the pain to this severity nor would he have a neurological dysfunction."
[75] There was evidence from Dr Licina that "the activity of painting, of lifting the paint and filling the roller and then leaning backwards to paint, all those activities in combination could exert a force on the spine that would lead to disc prolapse". The comments were prefaced on the method of painting being a roller with an extended pole rather than a paint brush.
[76] Under cross-examination, Dr Licina accepted forces about the lumbar spine would be entirely dependent on the movements a person used to paint with those forces related to the effective weight of the object [Transcript p. 4-8]. On a comparison between painting and lifting steel plates of 1.2 meters x 24 centimetres weighing approximately 25.5 kilograms, Dr Licina agreed that the strain on the body itself would be greater from lifting those plates, but he would not be able to confirm that activity as described would be a greater risk to the disc. On the matter of "twisting", the evidence was it is likely to disrupt a disc, although there is less risk if one was to twist at the waist. A disc prolapse, it was said, could occur in practice with no event at all or a very significant event with about half of the people he had seen not being able to recall when it happened or what happened [Transcript p. 4-9]. Dr Licina was of a view that the temporal gap between an activity and the on the onset of symptoms was very relevant, going on to state:
"So, as I say, if someone had done a lot of heavy lifting a week before the disc prolapse but had done something less significant a day before, then I would probably put more [indistinct] the day before rather than a week ago, despite it being a heavier activity." [Transcript p. 4-10].
[77] In re-examination, the evidence was that the medical notes and ambulance reports, combined with Howard's recurrence pain whilst walking on 3 March 2010, were events of some relevance in the preparation of his report [Transcript p. 4-11].
Paddon-Jones
[78] Previously an Assembler with Steelrod, Paddon-Jones became a Production Supervisor in February 2010 with Howard taking up his previous position on the commencement of his employment. The interviews for the position of Assembler were conducted by Paddon-Jones and the attributes that helped Howard secure the position ahead of a number of applicants were:
former Prison Officer; strong; stable; and mature. [79] Paddon-Jones described the assembly role as 70 percent mental activity, 30 percent physical activity with some heavy lifting. He had taken Howard on a tour of the work area but at no time in the course of their discussions did Howard mention he had been to his General Practitioner that day for back soreness or any issues with his capacity. Howard did not mention any previous accident in 2008 regarding his back and Paddon-Jones made no such inquiry.
[80] On the morning of 2 February 2010 he took Howard through a site induction where he spoke about health and safety and incident forms, including the location of those forms on site. There was no instruction given about manual handling techniques. Later, in the course of Howard's employment he witnessed Howard lifting things off the ground and whilst it was an "unwritten rule" at Steelrods not to work off the ground he admitted he had failed to inform Howard of this at the induction. He further witnessed Howard undertaking strapping of a crate in an unsafe way and directed Howard how it ought to be done. It was at this time Howard mentioned he was having problems with his hip and despite undergoing physiotherapy treatments the situation was getting worse. At some stage Howard showed him a bruise on his hip at which time he advised him to see a doctor. Howard had also mentioned a motorcycle accident from his past.
[81] At no time in his employment did Howard ever submit an incident report form for events alleged to have happened on 2 February 2010 or 3 March 2010, nor was any verbal advice given to him. On the viewing of the video of Ihle turning steel plates [Exhibit 11], Paddon-Jones stated he was doing it the right way.
[82] Under cross-examination, Paddon-Jones' evidence was he had given Howard an induction book on 2 February 2010 and the induction was completed in around 15 minutes [Transcript p. 4-42]. At the time he conducted the interview for the position he did not notice Howard limping or showing signs of back pain [Transcript p. 4-43]. The first time he was asked about the 2 February 2010 incident was after Howard had lodged a workers' compensation claim. There were no formal policies in place regarding what weights could be manually lifted, but 25 kilograms would in practice be the maximum [Transcript p. 4-45]. Whilst commonsense dictated you should not work off the ground, there were circumstances where that happened. Forklifts were available to lift steel, however when they were not there, assistance for lifting was available through the use of labourers [Transcript p. 4-46]. Paddon-Jones acknowledged he had formed the impression that the bruising to Howard's hip was a result of a motorcycle accident [Transcript p. 4-48].
[83] Paddon-Jones had some difficulty recalling whether he witnessed Howard limping in February or March 2010 [Transcript p. 4-50].
Submissions
Regulator
[84] It was not contested Howard was a "worker" for the purposes of the Act, however Howard had failed to establish that he sustained an injury within the meaning of s 32(1) of the Act, including an aggravation under s 32(3) of the Act in respect of the alleged incident on 3 March 2010. It was contended the event did not occur at all as alleged by Howard and there was not an incident where work was a significant contributing factor to that event.
[85] The submission made a number of global observations which included:
Howard's evidence on work tasks - 2 February 2010 and 3 March 2010
was contradicted by evidence of Ihle and Paddon-Jones; Howard's version of events were uncorroborated - failure to call
evidence; Howard exaggerated dimensions, weight and effort of work tasks -
2 February and 3 March 2010; the Appellant never properly put Howard's version to the Regulator's 1
witnesses in compliance with the rule in Browne v Dunn ;
Howard's account was not reliable, therefore the Commission could not
properly rely upon it to make findings; and Howard sought to explain deficiencies as a poor historian with reference to a non/unqualified/unverified memory loss problem. Further, he had a credibility problem or memory loss issue which means his evidence is unreliable. [86] Of the evidence elicited during the trial, it was the case Howard had provided different histories to various medical practitioners and despite calling a plethora of medical evidence from a number of differing disciplines in order to bolster or add weight to his version of events, it was submitted that medical evidence cannot be used to corroborate an otherwise uncorroborated and contradicted versions of events.
[87] There were no incident reports or notifications in respect of the alleged events of 2 February 2010 and 3 March 2010 and the first Steelrod became aware of events was beyond 3 March 2010. Howard, it was said, was concealing a back pain issue from his employer which had been caused by his own domestic painting and/or not work-related activities with that conduct suggesting no work injury as alleged for either 2 February 2010 or 3 March 2010.
[88] Howard had a sore back from work in Gladstone in 2008 and on the day he interviewed for the Steelrod position (1 February 2010) he attended his General Practitioner regarding his back pain with medical notes recording "exerted himself one month ago and lower back pain". In the employment application completed on the same day, he makes no mention of a previous injury in 2008 or back pain from 10 January 2010. It was submitted this lack of disclosure does not assist his credibility.
[89] On 2 February 2010, his first day, undertaking his first task he allegedly suffered an injury for which there was no incident report, oral or otherwise, which significantly harms his credit and reliability. On 15 February 2010 he attends his General Practitioner with MRI results similar in appearance to a CT scan from 2008. The alleged event on 3 March 2010 was exaggerated by Howard in terms of facts and circumstances with his version being uncorroborated and again no oral or otherwise notification of the injury. On 3 March 2010 an Ambulance Officer (Rush) records the patient history and states:
"Patient History: back injury 2/52 ago, which is two weeks ago. Patient states
thought it was better and began painting house yesterday and gardening".
[90] On the same date the Redcliffe Hospital records show Howard had a "recurrence of pain this morning at work while walking". Six days later upon being transferred to Royal Brisbane Hospital their records reflect, in terms of Howard:
"admitted under Dr Riley 4/3 10 back pain for 6/12, had mild improved,
reinjured 1/52 at work bending and twisting".
[91] None of these patient histories corroborate or assist Howard's claim.
[92] The Commission, it was submitted, ought prefer the evidence of the witnesses called by the Regulator as they had:
given evidence in a clear and forthright manner; the evidence was clear and definitive in its compass; and the evidence was not adversely affected in cross-examination. [93] The evidence of Howard, on the other hand, was vague, imprecise and tailored to the moment in the sense of providing an answer or explanation he considered would best advance his application for compensation. The Commission had an opportunity to observe his demeanour under cross-examination in which he laboured to answer questions.
[94] Howard's evidence was described as being the product of "reverse engineering" with him being unable to reliably recall what the event was and his memory improved over time or he was exaggerating his evidence. Simply his evidence does not afford a reliable basis for making a conclusion as to the event of 3 March 2010 amounting to an injury or aggravation under s 32 of the Act.
[95] The Legislation, for the purposes of the determination of the Appeal, was identified as ss 11, 32(1), 32(3) and 132(3) of the Act and Regulation 85.
[96] A number of authorities were cited with regards to the legal principles to be considered that included:
Labaj v WorkCover Queensland[2]; Ivey v WorkCover Queensland[3]; Chapman v University of Southern Queensland Student Guild[4]; Qantas Airways Limited v Q-COMP[5]; Nguyen v Cosmopolitan Homes (NSW) Pty Ltd[6]; Newberry v Suncorp Metway Insurance Ltd[7]; Croning v Workers' Compensation Board of Queensland[8]; Federal Broom Co Pty Ltd v Semlitch[9]; and Pleming v Workers' Compensation Board of Queensland[10]. [2][3][4][5][6][7] Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48
[8][9][10][97] It was said to be clear on the authorities that ultimately Howard had an overall burden of proof to establish a factual situation that brings him within the provisions of the Act which must be established on the balance of probabilities. Howard had failed to meet the onus of proof and failed to establish an entitlement to compensation.
[98] It was submitted that all other arguments and opinions aside, at the highest, Howard's case only says there was a possible link (in the sense of one which is speculative or conjectural) between the event of 3 March 2010 and work. He cannot elevate it to a probability. Mere coincidence, that is to say, work was merely the setting of the event, is not sufficient for this purpose.
[99] The submission dealt with an exacerbation as opposed to an aggravation, suggesting in the case of an aggravation arising out, of or in the course of, employment and whether employment can be said to be a significant contributing factor is an area largely dependent upon findings as to the medical evidence. In any event, if the Commission is satisfied that Howard suffered a personal injury, it was submitted he had failed to establish, on the balance of probabilities, that employment was a significant contributing factor to the injury. It is not sufficient for a worker to establish they were employed at the relevant time to establish an entitlement to compensation, they must also identify the work activity alleged to have given rise to the injury.
[100]It was clear from Howard's medical records he had injured his back in 2008 and domestic activities caused his disc prolapse, rather than work. The medical reports confirmed a history of pre-existing degenerative disease. The fact he was at work at the time he felt the symptoms of pain suggests no more than a possibility that employment was a contributor which is insufficient to establish a link between work and any injury suffered.
[101]In the absence of any specific event or incident resulting in the onset of pain or injury, it was submitted the Commission could not be satisfied, on the balance of probabilities, that Howard's employment was a significant contributing factor, rather than a transient episode of pain caused by a pre-existing degenerative condition, entirely unrelated to work.
[102]It was submitted the Appeal ought to be refused with costs.
Appellant
[103]It was contended that Howard hurt himself on 2 February 2010 suffering pain but was able to return to work in a reduced capacity. The Appeal concerns whether then, on 3 March 2010, Howard suffered a further injury (or aggravation) as a result of the work he was doing.
[104] The Legislation pertinent to the Appeal was identified as ss 32 and 558 of the Act.
[105]The resolution of the Appeal was said to involve the determination of the following issues:
what tasks did actually occur in the course of Howard's employment in
relation to events and tasks he performed at the workplace; and did Howard lift the steel plates from the ground to the bench - on 3 March 2010 - if not what physical actions did Howard perform at the workplace on that date. [106]On the basis of what may be found to have occurred, had Howard proven he had sustained an injury to which his employment was a significant contributing factor:
if it is accepted that Howard lifted the steel plates (as described), the question becomes whether, on the balance, this was a significant contributing factor to his resulting injury (or aggravation) that required hospital treatment on 3 March 2010; and
if it is not accepted that Howard lifted the steel plates (as described), were there other actions/causes that presented as a significant contributing factor to his injury.
[107] In terms of the standard of proof, the submission cited Bradshaw v McEwans
11
Pty Ltd arguing that "more probable" means no more than that, upon a balance of probabilities not requiring certainty.
[108]Howard's medical condition on 3 March 2010 cannot be disputed in that he went to the Redcliffe Hospital that evening and since that day has had many back operations with poor outcomes and has never returned to work. As a result of this experience, he has developed Cauda Equina Syndrome and suffers from major depression.
[109]On the credibility of witness evidence firstly in the case of Howard, it was uncontested he suffered psychiatric symptoms, took medication (Gabapentin) which, in his view, affected him to the point where "for example, some days, I can't remember my wife's name" [Transcript p. 2-5]. Dr Byth's evidence was that as a result of his major depression he had experienced changes which included changes to his concentration and memory.
[110]Howard's performance was affected in the witness stand in terms of his ability to provide fine details, making concessions when he could not remember or was not sure about a fact. Any inconsistencies with the finer details of events that occurred some time ago should not reflect poorly and it was submitted that the critical elements of his claim are proven by the other witnesses who gave evidence of what they saw and heard Howard say to them (Rush and Lisa Howard) after returning home from work on 3 March 2010.
[111]All of the evidence from Steelrod workers with respect to lifting the metal plates from the pallet indicated it was common for workers to lift the plates, like the ones lifted by Howard, weighing up to 25 kilograms, all of which is relevant in the considerations of whether Howard picked up the plates.
[112]There was said to be a question over Beaton's evidence, arguing it should not be preferred over that of other witnesses, in particular that of Howard, for reasons that included:
at the relevant time Beaton was only on site once a fortnight and not
aware of the actual workplace; he could not independently testify to work practices as he was the
developer and auditor of the site safety systems; he had not conducted a risk assessment on the handling of metal plates;
and he was actively involved in the management of Howard's workers'
compensation claim, representing Steelrod.[113]It was submitted that Beaton's evidence was in contrast of other workers (McGrath, Ihle and Paddon-Jones) who either admitted or accepted metal plates weighing up to 25 kilograms were lifted. Howard's version of events, in relation to having told Beaton about his previous back injury, should be preferred.
[114]Whilst it was generally accepted that the process for movement of the steel plates was through the use of a forklift, there were times when the forklift needed to be elsewhere, which was consistent with Howard's evidence that on 3 March 2010 he was required to lift the plates up to the bench due to the Leading Hand wanting the forklift. It was after he had performed this task that he experienced pain. Howard's version was supported by what he told Lisa Howard and Rush later that day. The video [Exhibit 11] did not demonstrate the lifting of the metal plates and at best shows the turning of the plates.
[115]In respect of whether there were other causes for Howard's injury, there was some evidence he did painting between 2 February 2010 and 3 March 2010 however the details and physical actions of such activities were not put to Howard or the medical witnesses. Even if it was considered the painting activities are a significant contributing factor to his condition (which is not conceded), this does not preclude a finding that the work activities on 3 March 2010 were a significant contributing factor to the injury. Despite the evidence led that Howard had been injured in an alleged fall from his motorcycle, there was no evidence that could support that claim.
[116]The medical evidence from Drs Tomlinson, Lucas and Walden identified the 3 March 2010 incident as the date of injury with Rush giving evidence that 3 March 2010 was the first time Howard had reported burning in his left leg. Dr Licina, who gave evidence on behalf of the Regulator, expressed a view that either the actions of lifting the plates and twisting, as well as the general duties of painting, could have caused the prolapse and that either could have been significant. On the likely cause of the injury referrable to the timeframes, Dr Licina had conceded:
"I explained before, I think that the change in symptoms matter, if the pain was - if it had been previously for a long time, then I don't think that those events was important. But, if the pain was significantly worse or a different place, especially down the leg, then I would put more emphasis on that."
[117]This reasoning identifies the lifting of the plates and the activities at the workplace as the most likely cause of Howard's presentation at the hospital.
[118] Based on the evidence of the Steelrod staff, it should be found on the balance:
Howard was a "worker" (not contested); practice at the workplace was for the plates to be left on the pallet and
workers lifted them to the work bench; on 3 March 2010 Howard was required to lift seven plates from the pallet
and place them on the work bench; Howard experienced significant pain which he reported to his wife when
he arrived home; Howard attended the Physiotherapist on 3 March 2010 who
recommended he go to hospital; Howard had difficulties with pain and required assistance dressing; he was taken by ambulance to the hospital; and he underwent surgery, suffering difficulties and has not worked since
3 March 2010.[119] In regards to the application of s 32 of the Act, a number of authorities were cited that included:
Federal Broom Co Pty Ltd v Semlitch[12]; Newberry v Suncorp Metway Insurance Ltd[13]; Chattin v WorkCover Queensland[14]; and Croning v Workers' Compensation Board of Queensland[15]. [12]
[13]
[14]
[15]
[120] On the question of whether or not employment was a significant contributing factor to the injury in question is a question of fact where ordinary emphasis is placed on the opinions of medical witnesses. In this case there is no medical evidence to the contrary.
[121] In conclusion it was submitted for Howard to have a successful claim, it must be determined that:
Howard is a "worker"; Howard suffered an "injury arising out of the course of employment";
and work was a "significant contributing factor" to his injury. [122] Howard's claim meets the threshold criteria for acceptance of his claim through the evidence of Lisa Howard, Rush and the preferred medical evidence.
[123] It was submitted that the Appeal should be allowed with costs.
Regulator in reply
[124] The Regulator in reply claimed that the medical practitioner's evidence on behalf of the Appellant suffered from a less than reliable basis or history, given the poor reliability of the patient history provided by Howard.
[125] There was no evidence of any alleged "vested interest" which the Commission could act upon and make findings, except for the evidence of Howard and Lisa Howard who did have a vested interest in the proceedings and a pecuniary interest in the matter. Further is the case of Lisa Howard there were questions over her evidence, some of which was the product of leading and there were other aspects of her evidence that were clearly hearsay, although her evidence did support the Ambulance Officer's position that Howard had engaged in painting activities at the family residence.
[126] Howard's evidence was tailored to the moment or occasion and included errors and inconsistencies that made no sense in the context of events. Some of which were:
use of his motorcycle after work on 3 March 2010 to go home and then
visit the Physiotherapist; allegations he was "out of it", consumed medication, and had been drinking
rum on 3 March 2010 which was said to be a fabrication; Howard's attempt to explain away his poor memory and inconsistent
reporting which was exposed as lacking merit; and Howard had made up his case as the trial progressed. [127] It was submitted the evidence of Dr Licina should be preferred over that of other expert medical witnesses as he had the benefit of a full patient history.
[128] The Appellant's submissions at paragraph 50(a) to (h) were never put to the
16
Regulator's witnesses in compliance with the rule in Browne v Dunn . [129] Finally, it was submitted that the Appeal should be dismissed with costs.
Conclusion
[130] In the determination of the Appeal, it is necessary to firstly identify a number of relevant issues that arose in the course of proceedings that, in essence, contribute to the background of the matters to be decided:
in 2008 Howard suffered a work-related injury to his back; in January 2010 Howard commenced the task of painting the inside of
his residence; on the morning of 1 February 2010 Howard visited his
General Practitioner seeking treatment for a sore back;
on the afternoon of 1 February 2010 Howard attended Steelrod for the purposes of undertaking a job interview, subsequently being offered employment which he commenced the following day; in the course of the interview, Howard failed to disclose any history in relation to previous back injuries and, in completing the employment application, deliberately ignored the request to provide the following information: "HEALTH: To assist us to comply with our obligation to ensure a safe workplace and in order to enable us to determine whether applicants are able to safely and adequately perform duties required by the position, please provide details of any previous or current injuries, illnesses or disabilities of which you are aware and which you believe may affect your ability to carry out the requirements of the position";
Howard on the first day of employment with Steelrod, while undertaking his first task, suffered an injury to his lower back but at the time failed to report the incident either orally or with the completion of the appropriate incident report form. A subsequent claim was lodged for compensation for this injury which was accepted as being compensatable on 1 April 2010;
under the workers' compensation claim for the 2 February 2010 injury, Howard received significant medical interventions including a number of operations on his back;
Howard continued to work in the month of February without the loss of time due to the 2 February 2010 incident, although there were visits to a General Practitioner and Physiotherapist in this time period;
on 25 February 2010 he completed a safety induction course at the
Steelrod premises under the instruction of Beaton; on 3 March 2010 Howard left Steelrod premises prior to the end of his
shift and has never returned to work; Howard failed to complete an incident report in respect of the
3 March 2010 event; and
on 4 May 2012 Howard lodged a notice of claim for damages for back injuries said to have occurred whilst employed at a labourer at Steelrod on 3 March 2010.
Matters for determination
[131] Given that for the purposes of s 11 of the Act it is uncontested that at the relevant time Howard was a "worker", the matters for determination are:
whether on 3 March 2010 Howard suffered a personal injury arising out
of or in the course of his employment with Steelrod; and whether his employment with Steelrod on 3 March 2010 was a
significant contributing factor to the injury.Medical Evidence
[132] Dr Tomlinson, a Neurosurgeon, prepared two medico-legal reports in October 2011 and May 2013 in which he assessed Howard as having a 28 percent whole person impairment nominating 3 March 2010 as the causation date of his injury. All sources of information relied upon in the preparation of the reports was provided by either Howard or his representatives and it was evident there was information regarding some medical treatments of Howard not being provided.
[133] Dr Lucas, an Orthopaedic Surgeon, operated on Howard for L4/L5 disc protraction, acknowledged in cross-examination there was certain medical information withheld from him including General Practitioner records, Redcliffe Hospital clinical notes and accepted a CT scan from 2008 and an MRI from 12 February 2010 of Howard's back produced two similar findings. It was further accepted a history of back pain was evident for the six month period prior to 3 March 2010.
[134] Dr Sharpe, a Medical Intern at Redcliffe Hospital, on 3 March 2010, had no recollection of Howard, but in a patient history taken at the time, recorded that Howard:
"…Past Hx of L4/5 disc bulge from 2008. 4/52 ago, recurrence of severe
lower back pain with L sciatica while lifting metal at work. Improving with
physio.
Recurred this morning at work, while walking…"
[135] Dr Byth, a Psychiatrist, diagnosed Howard, following an interview on 30 August 2012, as "suffering from major depression with prominent associated anxiety symptoms. His evidence was Howard complained of adverse effects from two work events in February 2010 and 3 March 2010.
[136] Dr Walden, a Specialist Pain Medicine Physician, gave evidence in cross-examination of not being provided with information regarding Howard's attendance at his General Practitioner on 1 February 2010 and of relying upon information provided by Howard regarding the weight of the Perspex (80 kilograms) and steel plates (35 to 40 kilograms). Pre-existing degenerative changes from 2008, in his opinion led to the predisposition to develop the prolapsed disc. Howard had provided details of injuries from two events (2 February 2010 and 3 March 2010).
[137] Dr Licina, an Orthopaedic Surgeon, opined that the cause of Howard's problem was complex and there was a question whether the aggravation occurred on 2 March 2010 whilst he was painting his house or 3 March 2010 while lifting.
[138] Dr Winkle, a Urological Surgeon, relied upon a history provided by Howard and in his report identified the injury of 2 February 2010 as contributing to his bowel and bladder function.
[139] Rush, a registered Physiotherapist, first treated Howard on 23 February 2010 when he was experiencing problems with his back. On 26 February 2010 he informed Rush the pain in his leg had started to reduce. Rush treated Howard on 3 March 2010 where he informed her "his pain had increased severely".
[140] In terms of the medical injuries, it is open to find on the medical evidence adduced in the proceedings that Howard, in or around February and March 2010 was suffering pain to his lower back and subsequently developed a psychiatric condition as a result of having to deal with pain following surgical procedures. The medical evidence also confirmed that the medical imagery from 2008 and 2010 depicted similar conditions in Howard's back.
[141] Whether the injuries qualify as personal injuries pursuant to s 32 of the Act having arisen from a work-related incident on 3 March 2010 will be determined further in this decision.
[142] The totality of the medical evidence in the proceedings was of no assistance in establishing whether Howard suffered an injury in the workplace on 3 March 2010 as claimed or otherwise with the medical evidence having only relevance to any medical condition that Howard was suffering at various times which included a timeframe prior to 3 March 2010. Whilst Dr Licina did, in the course of his evidence, offer an opinion that both the painting activities and the lifting of steel plates of the dimensions and weight described in this case could lead to a disc prolapse, it does not corroborate the assertion of Howard as to the causative nature of his injury on 3 March 2010.
[143] Ambulance Officer Kneen, who attended Howard's residence at 9.33 pm on 3 March 2010 gave evidence of completing documentation at the time in which she recorded information given by Howard that included the following:
"pt hx back injury 2/52 ago, pt states though it was better and began painting house yesterday and gardening, pain commenced again this am approx
9am…able to walk with assistance to stretcher."
[144] Kneen had no recall of being informed that Howard had consumed rum on that day, hence no notation in the abovementioned documentation, giving further evidence that Howard was not in an altered conscious state and able to articulate clearly in response to questions put to him.
[145] In terms of the information provided to Kneen on 3 March 2010, there is clearly a reference to Howard undertaking painting and gardening at his house the previous day and an absence of any reference to a work-related event on 3 March 2010 is said to be causative of his (then) present circumstance.
[146] For this Appeal to succeed, the requirement for Howard is to establish on the balance of probabilities that he injured his back on the morning of 3 March 2010 whilst lifting steel plates at the Steelrod worksite. The evidence from Howard is that despite pain levels at "a good nine" he continued to work until 1.45 pm when he sought permission to leave work prior to the end of his shift. Howard neither informed senior staff verbally of the incident, nor did he complete an incident report form which was an obligation for all workers injured at work, of which Howard was fully aware having undertaken a safety induction the week previous. Howard had ample time from the alleged time of the incident at 9.00 am until leaving the worksite at 1.45 pm to meet his commitments regarding the incident report yet failed to do so, which is difficult to comprehend if his evidence is truthful regarding the level of pain and the likely seriousness of the injury.
[147] There was no witness evidence to directly corroborate his evidence in regard to the work-related injury with reliance only on the evidence of Lisa Howard and Rush whose knowledge of the event was limited to information provided by Howard on the afternoon of 3 March 2010. The evidence of McGrath, Ihle and Paddon-Jones, that there were occasions when employees would lift material up to 25 kilograms in weight, fell short of assisting in the corroborating Howard's evidence regarding his injury as their evidence on the issue was more a generalisation of the overall worksite rather than pertaining to the actual task performed on the morning of 3 March 2010.
[148] There were a number of areas where the evidence of Howard was questionable but none more so than the issue of the painting of the inside of his place of residence which he firstly acknowledged had been commenced in or around January 2010. He then gave evidence that he had not undertaken any painting work at the home between 2 February 2010 and 3 March 2010 and was at odds why the report of Ambulance Officer Kneen contained references to him informing her on 3 March 2010 that he had engaged in house painting the previous day. Of more interest was the evidence of Lisa Howard who gave evidence of Howard continuing to perform painting work throughout the month of February 2010, albeit there were some nights when he was not able to undertake that task. This evidence was completely contradictory to the evidence of Howard and if accepted, had Howard undertaking a task other than his work-related activities which Dr Licina evidenced could have been causative of the injury subject of this Appeal.
[149] The evidence of Lisa Howard in effect confirms the notation in the Ambulance Officers documentation regarding the painting and I find it is more likely than not Howard had not only continued to perform house painting activities in the month of February 2010 and was also undertaking such work on 2 March 2010 thus in the view of the Commission severely affecting his credibility.
[150] Howard's evidence regarding the consumption of alcohol (rum) on the evening of 3 March 2010 to a point where he was "high as a kite" when the ambulance arrived at his home was, in my view, a "failed" attempt to counter the information given to Ambulance Officer Kneen regarding the house painting activity and I readily accept Kneen's evidence that any signs of Howard being in an altered conscious state would have not only been noticed but recorded by her. Further in the space of a couple of minutes Howard's evidence changed from having a couple of glasses of rum to only a couple of swigs which seem to be fitting the submission of the Regulator that he tailored his evidence to the moment.
[151] Howard, from the evidence, was not a particularly good historian of which the best example is his recall of the 2 February 2010 incident when providing a background history to Dr Walden where he identified the weight of the Perspex at 80 kilograms and the 3 March 2010 incident where he identified the weight of the steel plates at 35 to 40 kilograms, completely at odds with more reliable evidence before the proceedings that suggest the weights were 10 to 15 kilograms and 25 kilograms respectively.
[152] A further area of Howard's evidence that drew some scepticism was the claim that on 3 March 2010 he rode his motorcycle from his place of work to his home with his condition such that he required the assistance of his wife to undress him, yet a short time after was back on the motorcycle riding to the Physiotherapist and returning home where he required assistance from his wife to alight from the motorcycle and again undress him. I found it difficult to comprehend a situation where one would choose to ride the motorcycle to the Physiotherapist in those circumstances when other transport options were available in the form of a motor vehicle driven by Lisa Howard if his level of pain and discomfort was as he had evidenced.
[153] Howard, in my opinion, was not a witness of credit and whilst not wishing to fully expand on other areas of his evidence where it was found to be questionable, I find it difficult to accept with any surety his evidence that on 3 March 2010 he suffered an injury to his back whilst undertaking work associated with painting steel plates and as such he has failed to establish within the standard of proof, what is required to enliven s 32 of the Act.
[154] Further, in relation to the 3 March 2010 alleged incident, I would have preference for the evidence of Ihle, the direct supervisor of Howard, which confirmed that Howard, in the course of his employment, had never been instructed to lift the steel plates by himself and that he had not witnessed such lifting by Howard on the day in question being 3 March 2010.
Finding
[155] On consideration of the evidence, material and submissions before the proceedings, I make the following findings:
Howard was, pursuant to s 11 of the Act, a "worker" at all relevant times;
Howard has failed to establish, on the balance of probabilities, that on 3 March 2010 he lifted several steel plates from the ground to the bench in the course of his employment with Steelrod, causing him to suffer a personal injury in accordance with either s 32(1) or s 32(3)(b) of the Act, and therefore a personal injury did not arise out of or in the course of his employment nor was his employment a significant contributing factor to an injury on 3 March 2010; and
the medical evidence, in the proceedings, confirmed that Howard had suffered a personal injury in and around February/March 2010 and having found there was not a work-related incident on 3 March 2010 causative of a compensatable injury, it is not necessary to speculate the cause of the personal injury except to make the point Howard had a claim for Workers' Compensation for an injury sustained on 2 February 2010 under which a number of medical procedures (back operations) were approved and was receiving medical treatment for back pain on the day he applied for the position at Steelrod.
[156] The Appeal is dismissed and the decision of Simon Blackwood (Workers' Compensation Regulator) of 1 March 2013 is confirmed. The claim is not one for acceptance.
[157] The Appellant is to pay the Regulator's costs of and incidental to this Appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.
[158] I order accordingly.
1
Browne v Dunn (1893) 6 R. 67, H.L
Labaj v WorkCover Queensland [2003] 174 QGIG 370
Ivey v WorkCover Queensland [1999] 162 QGIG 392
Chapman v University of Southern Queensland Student Guild [2010] QDC 318
Qantas Airways Limited v Q-COMP [2006] 181 QGIG 301
Minh Lai Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246
Croning v Workers' Compensation Board of Queensland [1997] 156 QGIG 100
Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34
Pleming v Workers' Compensation Board of Queensland [1996] 52 QGIG 8
11
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 6
Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34
Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48
Chattin v WorkCover Queensland [1999] QIC 44
Croning v Workers' Compensation Board of Queensland [1997] 156 QGIG 100
16 Browne v Dunn (1893) 6 R. 67, H.L
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