Johnson v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 72
•24 April 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Johnson v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 072 |
PARTIES: | Johnson, Scott v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2014/311 |
PROCEEDING: | Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 24 April 2015 |
HEARING DATES: | 17-18 February 2015 |
MEMBER: | Deputy President Swan |
ORDERS : | 1. The Appeal is dismissed. 2. The decision of the Workers' Compensation Regulator dated 3 October 2014 is confirmed. 3. The Appellant is to pay the Respondent's costs of and incidental to the Appeal. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Simon Blackwood (Workers' Compensation Regulator) - Appellant claimed to have suffered an injury at work - visited medical practitioners immediately thereafter where no mention of an accident was raised - no corroborating evidence from others in the workplace. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 |
| APPEARANCES: | Mr J. Morris, Counsel instructed by Shine Lawyers for the Appellant. |
Decision
Mr Scott Johnson (the Appellant) has appealed the decision of the Workers' Compensation Regulator of 3 October 2014 which confirmed WorkCover's decision dated 26 September 2014 rejecting the Appellant's application for compensation.
This is a hearing de novo and the Appellant bears the onus of proof on the balance of probabilities.
Witnesses
Witnesses called by the Appellant were:
· Mr Scott Johnson;
· Ms Leonie Payne - (Mr Johnson's former fiancée);
· Dr Scott Campbell - Neurosurgeon;
· Dr Patrick Kerrisk - General Practitioner.
Witnesses called by the Regulator were:
· Mr Leon Ormiston - Partner Ormiston Builders;
· Ms Dawn Ormiston - Partner Ormiston Builders;
· Dr Phillip Myers - General Practitioner;
· Mr Graham Selway - worker Bidvest;
· Dr Aleksander Zajkowski - General Practitioner.
Appellant's claim
The Appellant's claim is that he sustained a back injury whilst undertaking labouring duties for Ormiston Builders at Bidvest's factory at Morningside on 31 July 2012. He claims that his employment was a significant contributing factor to his injury pursuant to s 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act).
In his Grounds of Appeal (Schedule 2) the Appellant states:
· "That at all material times the Appellant was an employee;
· That the Appellant sustained an injury while undertaking his employment tasks;
· That the injury was caused when the Appellant was struck by a beam that had fallen from pallet racking;
· That the injury comprised bruising and a muscular ligamentous injury to the Appellant's lumber spine;
· That the Appellant sought immediate medical assistance".
Counsel for the Appellant and the Regulator made oral submissions at the conclusion of the hearing.
The Appellant's evidence
The Appellant stated that in 1998 he was involved in a car accident where he had hurt his back. He believed that his injury was a "bulged disc" (L5-S1).
While the Appellant said he experienced back pain at that time, that pain eventually subsided in or around 2008 and he claims he was not taking any regular medication after 2008. He also stated that he had learned what not to do at work to avoid any further back pain.
The Appellant had previously been at school with Ryan Ormiston, the son of the owners of the business.
The Appellant worked at the time of his injury as a builder's labourer for Ormiston Builders where some of the work he performed was at Bidvest Morningside. He then left and returned to work for the employer in May/June 2012 until the date of an accident on 1 August 2012. This accident occurred at the Bidvest site at Morningside.
The specific type of work being performed by the Appellant at the time of the accident, consisted of creating a storage locker room for tyres and trucks.
The Appellant's description of the work performed on 30 July 2012 was as follows:
"We turned up at Morningside in the morning. There was three lots of pallet racking so we moved a few things that was left on the racking, took a few rails out of each lot of racking to make the racking lighter so we could move it because we had to move them all around in the place to create a locker room, and one stayed in place. We moved one sideways and then we shifted a third one right across to the other side of the room. And then we had to build - build a fourth pallet racking, which they had stuff laying around in the yard. We had to make it up out of that. As we were doing, we put it up. Leon wasn't happy with it so we'd take it down, trim a bit off it. We'd put it back up again. This happened several times, putting it together disassembling it" [T1-17].
In the course of assembling and disassembling, the Appellant had to stand the racking up, put the horizontal rails in it and put all the rails in to make a complete rack.
The racking was not always cut to size, and this had to be completed before commencing the job.
On 30 July 2012, at the time of moving the racking, the Appellant was working with Mr Ormiston and Mr Selway.
On 31 July 2012, the work involved finishing off that particular job. There were three blue pallet rackings in place and the Appellant was putting mesh around the outside of the structure.
On 1 August 2012, the Appellant had all the pieces of racking which were needed to assemble the pallet racking. At the first attempt to finalise the job, Mr Ormiston had wanted the frame assembled again. On two further occasions, the Appellant was required to disassemble the structure and start again.
The horizontal beams which required disassembling consisted of two orange coloured beams weighing between 5 to 10 kilograms [T1-20].
The beams had to be taken out from the top down and there were four beams on each side. Once they had all been taken out there were only two left at the bottom of the structure.
After these manoeuvers, there were two beams left. The Appellant moved into the middle of the pallet racking and had hold of the upright rail and the middle beam. He lent down to pick the horizontal rail up, because there were only two beams left holding it (otherwise the frame would fall).
Mr Ormiston was standing holding the rail while the Appellant was to take the rails out. The Appellant took the left rail out by using his left hand. His right hand was holding the middle diagonal bar.
The Appellant's description of what happened next is as follows:
"So, I was holding it, leg down, picked it up, moved it out of the way then I changed hands, leg down, picked the other one up and then just bang, the rail behind me had come down on top of me, knocked the one out that I was holding - knocked that out of me hand, come down and hit me on the head and in the back, and by the time I realized what happened, pulled the frame off, looked up, I seen Leon heading towards his car on the phone" [T-22].
The Appellant said that not only had the rail hit his head, but also had hit him on the side of the hip, grazing down that side and causing "big bruises" there.
The Appellant pulled the frame off him and went to speak to Mr Ormiston. Mr Ormiston asked him how he was and continued his phone call. The Appellant told Mr Ormiston that he was "OK". However, when he continued to work, his back was beginning to hurt badly. The Appellant said he asked Mr Ormiston if he had any Panadol in his car.
Upon returning home, the Appellant spoke to his partner, Ms Payne, and showed her a 'big red mark' across his back and a large graze down the side of his hip. The Appellant's partner and he went to a Doctor where his partner sat in with him during the visit.
Upon visiting his General Practitioner, he explained to the Doctor (Dr Zajkowski) that a frame had fallen on him at work, and that he had asked for painkillers (Valium) so that he could go back to work on the next day. The Appellant said he had asked for Valium as when he had previously had a sore back from his car accident that was a medication which helped him.
The Appellant said that the Doctor asked him if he wanted to access Workers' Compensation, and he declined because he thought he could work the next day. The Appellant did not have his prescription for Valium filled that evening as he said he didn't have enough money to do so.
The following morning, Mr Ormiston had telephoned the Appellant and asked how he felt. He responded that he was in pain.
When Mr Ormiston asked him if he could work that day, the Appellant said he couldn't because of the pain and that he had been unable to fill his prescription. The Appellant said that Mr Ormiston offered to come and get him and take him to a Pharmacy to have his prescription filled. This occurred.
On that day the Appellant worked all day. Mr Ormiston had approached the Appellant telling him he looked as if he was on drugs or drunk and he couldn't have him working under those conditions. However, the Appellant did not go home when Mr Ormiston had said that, but rather finished some work at Morningside.
After that, the Appellant had not returned to work.
While not working, the Appellant visited General Practitioners for pain medications. Ultimately he was prescribed OxyContin and he became very dependent upon drug medications.
The Appellant tendered photographs taken of him by his former partner, Ms Payne on 4 August 2012 [Exhibit 5 & 6]. The Appellant explained that the big red mark previously across his back had disappeared by that time.
Notwithstanding that the Appellant and his partner had been a couple for a number of years, their relationship had ended sometime during 2013.
In cross-examination it was put to the Appellant that nothing adverse happened to him on 1 August 2012. The Appellant was asked that if the uprights had fallen down, would there have been a big noise. The Appellant agreed with that. When this accident happened, the Appellant said that Mr Selway was standing nearby.
[37]When the uprights had fallen on the ground, the Appellant said that he and Mr Ormiston had picked them up. The Appellant also said at this time, no-one sought to assist him other than Mr Ormiston who had asked him if he was OK.
The Appellant was questioned about his visit to a General Practitioner on the evening of 1 August 2012.
The Appellant said he had told the Doctor that he had previously had problems with narcotics. At that visit, the Appellant was also asked whether he had told the Doctor that he had a chronic back problem. The Appellant denied that this discussion occurred.
The Appellant was asked to respond to the notes taken by the General Practitioner on 1 August 2012 which stated:
"History. Back pain, chronic. Takes very occasional Valium. Panadeine not helping. Advice given re addictive nature of benzos and using only infrequently."
The Doctor had not made any notations about offering a WorkCover form.
The Regulator said, viewing the Doctor's notes, that the first occasion upon which any mention had been made of the Appellant's accident was on 18 August 2012. On that occasion the Appellant had asked for the prescription medication Endone. The Appellant denies asking specifically for Endone, but he was asking for some stronger medication than what he had been prescribed.
The Appellant agreed that on 27 August 2012, he had run through a glass door after a domestic altercation with his partner, Ms Payne. After that incident, on 3 September 2012, the Appellant visited Dr Blum and he requested Valium. The Appellant agreed that between 1 August and 3 September 2013 he had taken approximately 200 Valium tablets.
Counsel for the Appellant responded to this questioning by the Regulator stating that the Appellant's evidence was that he had not been taking any medications up to 1 August 2012. After the accident, he has stated that he has become 'drug dependent' [T1-45]. Further, the Appellant said that no evidence was called from medical practitioners who may have treated the Appellant post August 2012.
The Commission questioned the utility of referring to medical visits beyond the date of the accident. Counsel for the Appellant stated:
"We're dealing with a case here of chronic pain, chronic pain that we say started after a motor vehicle collision had many years prior; a man who, despite his denials has been in constant pain over a long period of time and has self-medicated" [T1-47].
While taking into consideration that statement made by the Regulator, the Commission advised that it was clear that without calling the General Practitioner's responsible for making various notations after the incident, it put the Appellant in an untenable position. That line of questioning did not continue.
Ms Leonie Payne's evidence was that:
· Ms Payne did not voluntarily seek to give evidence to the Commission in this matter;
· The relationship between Ms Payne and the Appellant had finished around six months prior to this hearing;
· She recalled the Appellant telling her that some racking fell on him at work;
· She recalled the Appellant going to see a Doctor after the event;
· In answer to the following question from Counsel for the Appellant: "Do you remember was there a discussion about the workplace accident?" Ms Payne responded: "I can't really remember" [T1-45];
· She had not recalled a discussion with this Doctor regarding Workers' Compensation because the Appellant had only mentioned that prospect some months later [T1-55];
· She remembered that the Appellant had marks on his back ("Probably like bruises; blue, red …") [T1-55];
· Ms Payne was showed Exhibits 5 & 6 (a screenshot of her laptop showing a date of 4 August 2012) upon which the photos were taken and she agreed that the photos had been taken by her;
· She recalled the Doctor asking the Appellant what he wanted by way of pain relief, a request she had found unusual [T1-57].
Mr Leon Ormiston owns the business Ormiston Builders and runs the business with his wife and son.
Mr Ormiston employed the Appellant in July/August 2012 and confirmed that the Appellant had been a good friend of his son Ryan.
The Appellant's job with Ormiston Builders was described by Mr Ormiston as a 'helper' which involved doing many jobs - e.g. painting and general labouring type work.
Mr Ormiston was referred to the notes he had taken in August 2012. Those notes showed that Ormiston was working at Bidvest at Morningside at the time of the Appellant's accident.
Mr Ormiston said he hadn't seen an accident involving the Appellant on 1 August 2012. His diary entry for 1 August 2012 says "Cutting of rails" [T1-65]. 'Billy' was the person who cut the end off the rails and there had been no modification to any of the rails on site that day.
The following question was put to Mr Ormiston: "Mr Johnson says that in the process of sorting out the size of rails required, it was necessary to assemble and then disassemble the Dexion racking, make adjustments as necessary, and, as part of that process, the orange horizontal rails had to be fitted and then removed a number of times. Did that happen?" Mr Ormiston's response was "No, they wouldn't have had to be removed. We would have done it by measurement. We picked the rails up from in a stack, like Bidvest are always swapping their racking around, so there was a pile of rails. So we just picked up four rails and got Billy to alter those when he made the gate" [T1-65].
Mr Ormiston did not recall the accident cited by the Appellant which he says resulted in an upright falling and hitting him across the back. Mr Ormiston had not heard any particular sound (i.e. of the uprights falling to the ground) amongst the other noises in the warehouse. He did not recall helping the Appellant pick up fallen uprights because they had already been clipped in by safety pins [T1-66].
Mr Ormiston also did not recall the Appellant advising him of any accident. He also did not recall taking the Appellant to a Pharmacy on the 2nd August 2012.
The Appellant said that Mr Ormiston was aware that he had back problems and for that he often took Panadol and other similar products, but the Appellant had said that after 2008, those problems had disappeared [T1-31].
Mr Ormiston said he first became aware of the Appellant's worker's compensation claim some 12 months after the claim had been made.
Mr Ormiston said that WorkCover had telephoned his business and spoke to his wife, Ms Dawn Ormiston. Counsel for the Appellant asked Mr Ormiston: "I'll suggest that you told Dawn you in fact remembered some pallet racking falling" which Mr Ormiston denied.
Mr Ormiston responded to the Appellant's account of events on 1 August 2012 by saying that none of what had been said by the Appellant occurred (other than for working at Bidvest at Morningside on that day).
Mr Ormiston thought that the Appellant had worked for him on 2 August 2012 at Bidvest Burleigh where he helped Mr Ormiston finish that job. After that, he and the Appellant returned to Brisbane to affix the remaining wire frame on at the Morningside site.
Ms Dawn Ormiston is a partner in Ormiston Builders and works as a secretary of that business. Ms Ormiston was shown a record of telephone notes taken by a Worker's Compensation officer on 22 March 2013. Those notes recorded "Dawn has advised Leon heard a bang. The racking had fallen and WY, he twisted his back the following day, it was stated to the injured worker."
Ms Ormiston confirmed that she had spoken to the officer and she recalled she had noted that she wasn't on the worksite but that she would speak to Mr Ormiston. She asked him if he had heard a bang and "he said, well, he could have, because Bidvest's a busy place, but he said at no time had any racking fallen" [T1-91].
Ms Ormiston said all that she had been asked by the Officer for Workers' Compensation was whether Mr Ormiston had heard a 'bang'. She had been told that the Appellant said there had been an 'incident' but was not told the mechanism of the injury as described by the Appellant.
Ms Ormiston's evidence regarding her telephone communication with WorkCover should also be considered. Ms Ormiston was asked to recall a telephone call from one year previously. She said that she gave WorkCover her husband's telephone number, but there is no evidence of WorkCover having contacted Mr Ormiston.
Ms Ormiston did not agree with the way the transcript of WorkCover's call to her was interpreted. She said her response to questions posed by WorkCover related to the manner in which specific information was imparted from WorkCover, rather than from herself.
In relation to Ms Ormiston's evidence, she had accepted that Exhibit 1 (Communications Report Form WorkCover) represented a fair recollection of the call between herself and an Officer from WorkCover. However all she said she was told was that she should ask Mr Ormiston whether or not he had heard a 'bang' at the worksite on 1 August 2012. The Appellant states that Ms Ormiston says in that conversation she was not told anything about pallet racking, yet, in her conversation on 22 March 2013, she agreed that she said, "Leon, the site supervisor, said to Scott to wait until he gave him a hand with the racking, and Leon was speaking with John, the warehouse manager, when he heard a bang."
Mr Selway worked at Bidvest at Morningside. His normal job was to wash trucks and other similar duties.
He recalled the racking which required moving, in August 2012.
He did not recall an occasion where some racking fell on the Appellant. He stated that had an incident like that occurred he would have asked the person if they were alright. Had an accident occurred, a first aid officer would have looked at the situation as there was always a qualified first aid person on every shift.
At around 3.00pm each day Mr Selway said he would always be in the truck wash bay [T1-105].
Mr Selway was sure that the Appellant had not helped move any racking, notwithstanding that Mr Ormiston said he had. However, he recalled that rails had to be shortened and that Mr Ormiston and the Appellant put the rails together.
He also recalled that there were only two pallet racks in a line with the third on the opposite side. This evidence was contrary to that given by Mr Ormiston and the Appellant in terms of the placement of the rackings.
Mr Selway's evidence was that he had not seen anything happen to the Appellant on that day. He did state "I don't believe it happened. If one of those things fell down, there would be substantial noise, and if it fell on somebody you would certainly be hearing them as well" [T1-110].
Medical Evidence
Dr Zajkowski said that the first time he had met the Appellant was 1 August 2012.
At that time, his notes show that he had chronic back pain and he occasionally took Valium for pain relief. There was nothing in the notes to suggest that the Appellant had a recent flare-up of that pain.
It was usual for him to ask patients if they required a medical certificate, but none had been asked for on this occasion. Usually also, the Doctor would ask if the pain was related to a work matter and if so, whether the patient was currently involved in a WorkCover claim [T2-4].
The Doctor said he had not been shown any bruising on the Appellant's body.
In cross-examination, the Doctor stated that had a bruise been shown to him, then he would have noted that. He also said that if a patient had told him that something had fallen on him, then he would have recorded that.
The Doctor denied saying that he would ask a patient what type of pain relief they would like, notwithstanding that both the Appellant and his partner gave evidence that this had occurred.
When asked if the Appellant had told the Doctor that he'd had a car accident and that he had symptoms persisting from the car accident and that he took Valium to mitigate those symptoms, the Doctor said that would be consistent with his notes. However, the Doctor said that he had no independent recollection at all of this attendance [T2‑7].
Dr Scott Campbell gave the following evidence.
Dr Campbell's notes include the Appellant's description of how his accident occurred. Dr Campbell said he was told that "So he was bending over to pull on a rack whilst working as a labourer and whilst doing that a metal cross bar from [indistinct] struck him over the mid lower back region, and after that he noticed his onset of pain of the region" [T2-10].
Dr Campbell had been provided with the General Practitioner's notes from 1 August 2012. The Regulator queried whether Dr Campbell was aware that there was no reference in those notes to any acute exacerbation of the condition complained of. Dr Campbell said he would have considered that.
Dr Campbell did not recall whether he'd been told by the Appellant that he had injured himself in late August 2012 when he had gone through a glass window and sustained lacerations.
In cross-examination, Dr Campbell agreed that he had examined all of the documents provided in his brief and these were at page 6 of his Report.
Dr Myer, General Practitioner from the Primary Medical Centre was called to give evidence by the Regulator.
He did not immediately recall the Appellant, however, he had copies of records under the Appellant's name at the Centre.
His notes indicated that he saw the Appellant on 7 August 2012 where he had recorded "low back pain chronic, requests pain meds." He also stated "exacerbated his back pain" [T1-98, 99].
Dr Myer stated "that when a patient tells me he has ongoing back pain, the idea of chronic means something he's had more than six months" [T1-98].
At the time, the Appellant had asked Dr Myer for a prescription for Panadeine Forte and Valium and that was prescribed.
Dr Myer issued a medical certificate stating "Mr Scott Maxwell Johnson is unable to work from Monday the 6th to Monday 13th inclusive."
Dr Myer had looked at the previous medical notes from 1 August 2012 and noted the reference to "Back pain chronic".
Dr Myer said that the Appellant did not mention WorkCover or something happening at work [T1-101].
Dr Kerrisk is a General Practitioner practicing at Primary Medical Centre. He had no recollection of an attendance at the Centre by the Appellant.
Dr Kerrisk's notes of 18 August 2012 show "2/52 had large frame fall on him".
Dr Kerrisk agreed that the Appellant had asked him for a prescription of Endone. However, Dr Kerrisk did not give him this, but he gave him Tramal Sustained Release 200 milligrams, Panadeine Forte and Valium. Dr Kerrisk agreed that a reference in prior notes with two other Doctors at the Centre made reference to 'chronic' back pain.
In his notes, Dr Kerrisk said the Appellant must have told him something happened at work, because he noted that he would see the Appellant on another date for an X‑Ray and Workers' Compensation.
It appeared that the Appellant saw this Doctor on 27 August 2012 where the notes relate to a laceration.
Submissions
It is conceded by the Regulator that the Appellant is a 'worker' for the purposes of the Act.
[100]The Regulator describes the case as one of fairly narrow factual compass. Did the Appellant sustain an injury as defined in s 32 of the Act in the manner so described on the nominated date?
[101]If an injury was sustained, then the Regulator says it was "some sort of soft tissue injury" [T2-23].
[102]The medical evidence of Dr Zajkowski of a visit by the Appellant on 1 August 2012 was of the Appellant suffering from "chronic back pain". He also stated that he took note of causal factors if those are given to him. If there had been mention of heavy items falling on the Appellant, then he would have taken notes of that. This did not occur. As well, he was not shown any bruising on the Appellant's body.
[103]I have accepted this evidence as it relates to the recording of pertinent factors by this General Practitioner. I have accepted that General Practitioner's notes generally are not necessarily fulsome but in this case I have accepted that the Appellant had not discussed any issue relating to his accident on that day with the Doctor.
[104]In evidence given by Dr Myer the same reference was made to 'chronic pain' as was made by Dr Zajkowski.
[105]I have accepted the Regulator's submission to the extent that if the Appellant had advised both of these Doctors of the alleged mechanism of his injury, then the notes would have reflected that.
[106]Ms Payne's evidence was very vague and of limited assistance to the Appellant. Her evidence was that she only knew what the Appellant had told her with regard to the accident but she agreed she had taken the photos in Exhibits 5 & 6, of the Appellant's back.
[107]The first occasion upon which a mention had been made by the Appellant of the accident on 1 August 2012 was to Dr Kerrisk on 18 August 2012.
[108]Dr Kerrisk had no independent recollection of the Appellant (similarly for Dr Myer and Dr Zajkowski) but he says his notes on that date disclose there must have been some reference to work because of the inclusion of "X-Ray and WCC".
[109]The Regulator submits that Dr Campbell's evidence does not deal with the primary issue in contention - i.e. the mechanism of the injury. Dr Campbell can only rely upon the self-reporting of the Appellant.
[110]There is little of assistance to the Appellant in the notes of his visits to the General Practitioners or Dr Campbell concerning his injury.
[111]Concerning the evidence of fellow workers and that of Mr and Ms Ormiston, that too is largely unsupportive of the Appellant's case.
[112]Mr Ormiston had a long standing family relationship with the Appellant. From the evidence submitted, it appears that he previously had an easy work relationship with the Appellant. The Appellant performed labouring work when required and his employment as an ad hoc labourer seemed to be uneventful until August 2012.
[113]It should be noted that Mr Ormiston drove the Appellant to work on many occasions.
[114]Mr Ormiston denied any involvement in the history of 1 August 2012 as told by the Appellant and I have accepted that evidence.
[115]The Regulator states that there are many inconsistencies in the Appellant's evidence sufficient to determine that he was not a credible witness.
[116]Examples given include his account of what he said to General Practitioners (and the non-mention of those factors in medical reports); Ms Payne saying that the Appellant had not asked her for medication from her handbag on the day of the accident, contrary to his version and the denial by Mr Ormiston that he had taken the Appellant to a Pharmacy on the following morning and that he had paid for medication for the Appellant. I accept that these examples do not favour the Appellant's version of events.
[117]The Appellant's response to these submissions was as follows.
[118]General Practioner's generally do not descend into great detail and because the notes were taken some three years ago, it is difficult for these Doctors to recall any matter in any great detail.
[119]That may be so generally, but on the particular points raised by the General Practitioners i.e. if they had been advised of a specific work related event which had occurred, then in my view, it would be unusual for them not to have put that in their notes.
[120]Also it must be accepted that in the notes of these General Practitioners there were reports of 'chronic pain', with the word 'chronic' being used specifically for pain which related to a pain which probably had lasted more than six months.
[121]In regards to Mr Selway's evidence, there were common factors agreed to by both the Appellant and Mr Ormiston with which Mr Selway did not agree.
[122]Notwithstanding that, I have accepted Mr Selway's evidence that nothing of note happened at the worksite at Morningside on 1 August 2012 which involved the Appellant.
[123]Counsel for the Appellant states that the Appellant was categoric that between 2009 and 1 August 2012, he was not taking any regular medications. He also had not complained of back pain during that period; did not require time off work and wasn't seeing General Practitioners with regard to back pain.
[124]The Appellant claimed that his injury occurred on 1 August 2012 but the only corroborating evidence came from his ex-partner, Ms Payne. The fact that the Appellant visited his General Practitioner on that night is relevant but unfortunately, there are no notes by the General Practitioner relating to any work related incident or injury.
[125]On 4 August 2012, Ms Payne also took photos of the Appellant's back.
[126]The Appellant referred to Mr Ormiston's evidence where he was using notes he had made himself from his diary notes to assist him in the giving of his evidence in chief. The Appellant said those notes were not before the Commission nor had the Appellant viewed those notes. When asked to put away those notes during cross-examination, the Appellant said Mr Ormiston struggled with his evidence.
[127]I was not surprised that Mr Ormiston could not recall clearly what occurred during August 2012 without reference to his notes. These notes, he said, were taken from his Diary notes. The Appellant has pointed out that the notes for 1 August 2012 shows the words 'Cutting of rails' and then 'Fitting Billy's gate'.
[128]The Appellant says that Mr Ormiston's response to what these words meant was disingenuous. Mr Ormiston said the words 'cutting of rails' in fact refers to 'fitting of cut rails'.
[129]I have not accepted the Appellant's submissions on this point. While the note says what it does, there are many ways of writing notes in diaries which mean a certain thing to the writer. All types of shorthand are used by diary takers and I would envisage that the notes of someone who is both a builder (i.e. doing building work) and owner of a business might not be as succinct as notes taken by others in perhaps an administrative role. I have not rejected Mr Ormiston's evidence on this point.
[130]There was contention over whether Mr Ormiston had paid for the filling of the Appellant's prescriptions on the morning of 2 August 2012, when considered against Mr Ormiston's evidence that he sometimes gave the Appellant cash to charge his phone. The Appellant stated that Mr Ormiston's evidence was that he always paid for goods by card, and there would be no record of his paying a Pharmacy account for the Appellant. I have not found the inconsistency significant. In my view, the handing over of cash to someone who was having difficulties with their phone is somewhat different to how one might pay for goods and services. I have accepted Mr Ormiston's evidence on that point.
[131]Mr Ormiston was questioned about communication that had been passed between his wife and WorkCover.
[132]He said that the first time he had heard about an incident at work involving the Appellant in August 2012 was 12 months after the alleged incident.
[133]Mr Ormiston believed that there had been a couple of calls between WorkCover to his wife [T1-71].
[134]He said that after the first contact with his wife, WorkCover provided a little more detail to his wife that she passed on to him.
[135]He said his wife told WorkCover that they should contact her husband as she hadn't been at the worksites in August 2012 and knew nothing about any incident.
[136]Mr Ormiston had to check his diary to see where the Appellant was working on 1 August 2012. There were two sites at which the Appellant might have been working at that time. The notes showed that the Appellant was working at the Bidvest, Morningside site at that time.
[137]There is no evidence to show that WorkCover ever contacted Mr Ormiston and that point is not challenged.
[138]Mrs Ormiston referred to two telephone calls she had with WorkCover.
[139]When the WorkCover Officer first phoned her and asked her about the incident, she advised she had heard nothing about any incident concerning the Appellant in August 2012.
[140]In that call, after providing that initial information, the WorkCover Officer asked her to ask her husband whether he could recall a 'bang' at that time.
[141]Mrs Ormiston was adamant that, during that call, she had been told nothing about the specific detail of the claim made by the Appellant. All that she recalled telling her husband was that "... it was about a specific - yes, it was about an injury that had happened at Bidvest when they were doing the racking" [T1-94]. Mrs Ormiston had not heard WorkCover allege that racking had fallen on the Applicant [T
[142]While advising WorkCover to speak to her husband, that call was never made by WorkCover. This point is not in contention.
[143]In relation to the second telephone call, Mrs Ormiston contacted WorkCover to relay what her husband had told her. He had told her that he could have heard a 'bang' but that Bidvest was a noisy place as people were "unloading pallets and moving trucks around" [T1-94].
[144]When questioned about one of the notes, attributed to her, taken by WorkCover which said "Leon, the site supervisor, said to Scott to wait until he gave him a hand with the racking", Mrs Ormiston said while she didn't recall any exact words, she imagined that her husband might have said this and she relayed this to WorkCover.
[145]A more detailed entry in the "Verbal and Unsuccessful Communications Report" from WorkCover stated that Mrs Ormiston had told them "Leon heard a 'bang' the racking had fallen - and "WI" he twisted his back - the following day it was stated to the IW. Leon the site supervisor said to Scott to wait until he gave him a hand with the racking and Leon was speaking with John Warehouse manager when he heard the bang."
[146]It is not unreasonable that Mrs Ormiston did not recall many of the specifics of telephone calls with WorkCover around an event in which she was not involved, save for being a courier between WorkCover and her husband.
[147]In considering all of the evidence around this point, the Regulator's submissions aptly deal with situation: "The evidence should [indistinct] categorized as speculation, retrospective speculation in March of 2013 relating to an incident of which the employer until this point in 2013 had no awareness, so really that evidence is evidence of no real benefit in terms of ascertaining what actually happened on 1 August 2012".
[148]Had WorkCover called Mr Ormiston, then much of this confusion may not have occurred. It is unreliable to rely upon second hand information being relayed by someone who has no knowledge of a situation to a body like WorkCover. I do not believe that Mrs Ormiston sought to confuse the Commission with her evidence. Rather, I have formed the view that Mrs Ormiston was confused about the whole matter, and that she had been placed in an untenable position by WorkCover.
Conclusion
[149]Having considered all of the evidence in this matter, I have determined to reject the Appellant's claim that he suffered an injury at this workplace on 1 August 2012 within the meaning of s 32 of the Act.
[150]The application is dismissed and the Commission confirms the decision of the Regulator dated 3 October 2014.
[151]The Appellant is to pay the Respondent's costs of and incidental to the Appeal.
[152]Order accordingly.
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