Lake Murphy P/L v Q-Comp

[2010] QMC 22

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Lake Murphy P/L v Q-COMP [2010] QMC 22

PARTIES:

LAKE MURPHY PTY LTD ACN 104 470 073

(appellant)

v

Q-COMP

(respondent)

FILE NO/S:

MAG46876/10(5)

DIVISION:

Magistrates Courts – Industrial Magistrate

PROCEEDING:

Appeal against decision of Q-COMP

ORIGINATING COURT:

Magistrates Court at Cairns

DELIVERED ON:

7 December 2010

DELIVERED AT:

Cairns

HEARING DATE:

14 October 2010, 15 October 2010

MAGISTRATE:

Bentley JM

ORDER:

1.          The appeal is dismissed;

2.          The decision of Q-Comp delivered 9 February 2010 is confirmed;

3.          Question of costs adjourned to the registry and parties given leave to file written submissions within fourteen days. In the absence of any submissions, no order as to costs.

CATCHWORDS:

INDUSTRIAL LAW – WORKERS COMPENSATION – APPEAL AGAINST ADMINISTRATIVE DECISION – injury – whether injury occurred as a result of employment

COUNSEL:

O’Neill for appellant

McKinstry (solicitor) for respondent

SOLICITORS:

Murray Lyons Solicitors for appellant

Respondent on own behalf

REASONS FOR DECISION

Decision to be Reviewed

1. Sometime before 5 October 2009, David Detlef Fuhrmann suffered a supraspinatus tear in his right shoulder and the injury was an aggravation of a pre-existing shoulder injury. Q-Comp alleges that the injury occurred on 8 September 2009 when Mr Fuhrmann was working for Lake Murphy Pty Ltd (“the company”). The company denies that it occurred whilst he was at work and/or that it arose out of his employment.

2. On 9 February 2010 Q-Comp set aside the earlier decision by WorkCover Queensland (the Insurer) to reject the application for compensation and substituted it with a decision to accept the application for compensation.

3. The company now appeals against the decision of Q-Comp on the grounds that Q-Comp erred in finding that it was more probable than not that Mr Fuhrmann sustained an aggravation injury arising out of or in the course of his employment with the company.

The Review in this Court

4. It is uncontested that Mr Fuhrmann was at all relevant times employed as a labourer by the company and that he lodged an application for compensation with the Insurer dated 5 October 2009 for an injury to his shoulder which he said occurred on 8 September when he lifted a 5 metre steel purlin from a scissor lift.

5. It is also uncontested that Mr Fuhrmann was employed by the company since 2004 and in 2009 was injured in the course of his employment, suffering a partial tear of the supraspinatus tendon in his right shoulder. He lodged a claim for worker’s compensation in relation to that injury and was off work for 7 to 8 weeks and then on light duties for 8 to 10 weeks before receiving a medical clearance to return to full duties.

6. The only matter in issue is whether Mr Fuhrmann sustain an “injury” within the meaning of s 32 of the Workers’ Compensation and Rehabilitation Act 2003 (the Act), i.e. whether his injury arose out of or in the course of his employment or whether his employment was a significant contributing factor to the injury.

7. The appeal proceeded by way of hearing de novo.  The onus of proof lies on the Appellant to establish error in the decision under review. The standard of proof is on the balance of probabilities.

8. The company adduced evidence from employees and the director of the company who were working with Mr Fuhrmann on or about 8 September 2009. Q-Comp adduced evidence from Mr Fuhrmann, Katie Fuhrmann (his wife), Martin Watkinson and two medical practitioners (whose evidence was not challenged and was that Mr Fuhrmann told them that he had injured his shoulder on 8 September 2009 when he lifted a steel beam and his injury was consistent with that account).

The Evidence for the Respondent

9. Mr Fuhrmann gave evidence that that on 8 September 2009 he was working at the airport. At about 9 or 10am he was told to go to the tarmac site to assist in the removal of some roofing. He said that he initially got onto the scissor lift with Mr Musgrove but after it was raised into the air he asked to be let down because of his fear of heights. He then went outside the barricade fencing while Musgrove and Anderson went up in the scissor lift and removed parts of the roofing. They put those parts on the scissor lift and brought them down to the ground. Mr Fuhrmann said that he was asked by Musgrove to take one end of a steel purlin and lift it off the scissor lift. He said that as he lifted it he felt pain in his shoulder. He said he went home after work that afternoon and took Voltaren.

10. Mr Fuhrmann said that the next morning when he awoke he could not move his shoulder so he telephoned his employer and spoke to Mr Clarke and told Mr Clarke that he had re-injured his right shoulder and would not be coming to work that day. He said that Mr Clarke said nothing and ended the connection.

11. Mr Fuhrmann said that he went to work on 10 September 2009 and, as he was handing in his time sheet, he said to Musgrove words to the effect, “Thanks for the beam, I’ve re-injured my right shoulder”.

12. Mr Fuhrmann said that on Friday, 10 September 2009 he worked at a job at Tropical Arcade and that afternoon he was working with Martin Watkinson when Kasey Mitchell arrived driving a truck with machinery on the back. Fuhrmann said he had no conversation with Mitchell but Watkinson spoke to him.

13. Mr Fuhrmann stated that on 14 September 2009, the following Monday, he went to work and was told by Mr Clarke that he was not needed any longer. When asked why he was being dismissed Mr Clarke said that it was because of the argument he had on site on the Friday afternoon, his accent and his injury problems.

14. Mr Fuhrmann said that his wife arrived at the site soon after and the two of them had a conversation with the boss, Mr Murphy, who said that he Furhmann’s employment was being terminated because he had to find jobs for him and he had a fight on site. Mr Fuhrmann said that his wife asked Murphy 4 or 5 times whether he had recorded in the injury that had occurred on site on 9 September but Murphy did not reply to her.

15. Mr Fuhrmann said that he then attempted to make a doctor’s appointment but the earliest appointment he could get was 5 October 2009 because, at that time, the doctor’s were booked up because of the swine flu epidemic.

16. On 5 October 2009 the doctor told him that he had re-injured his shoulder and he could re-open his old claim so he made an application for work cover.

17. Under cross examination Mr Fuhrmann said that he was aware of the procedures in relation to reporting injuries and that he did not complete a report in relation to his shoulder injury because he presumed that Mr Clarke would do so when he phoned and told him that he had re-injured his shoulder.

18. Katie Fuhrmann gave evidence that Mr Fuhrmann’s shoulder was sore when he came home from work on 8 September 2009 and that she heard the phone conversation between him and Mr Clarke on 9 September and Mr Fuhrmann told Mr Clarke that he had re-injured his shoulder at work yesterday and wouldn’t be in.  She said that Mr Clarke cut him short, saying, “Fine, David”, and hanging up.

19. Mrs Fuhrmann said she phoned some doctors that day but could not get an appointment for a couple of weeks so they decided to wait to see if the injury settled. Two weeks later it hadn’t settled so they called Dr Mahler, the doctor who had dealt with the initial injury to the shoulder, and booked the earliest appointment which was 5 October 2010.

20. Martin Watkinson gave evidence that he was working with Mr Fuhrmann on 10 September 2009 and Mr Fuhrmann was doing light duties. F told him that he had injured his shoulder and Watkinson’s recollection was that F said he suffered the injury at the airport job. He stated that it was he and not Mr Fuhrmann who spoke to Mitchell when Mitchell arrived at Tropical Arcade that afternoon.

21. Mr Watkinson, who was also dismissed on 14 September, said that he had not spoken of this matter to anybody until he was contacted by a solicitor the day before the hearing.

The Evidence for the Appellant

22. The appellant called Michael Musgrove, Steven Anderson, Ivan Clarke, Ryan Tilbrook and Rohan Murphy.

23. Mr Musgrove is employed by the company and has been for sixteen years. He gave evidence that he was with Mr Fuhrmann on 8 September 2009 and that Mr Fuhrmann did not lift the purlin from the scissor lift and Mr Fuhrmann was, at the time the purlins were removed from the lift, outside the barricade fencing. Mr Musgrove stated that it was he and Mr Anderson who lifted all the items from the scissor lift. Mr Musgrove stated that Mr Fuhrmann did not say anything to him about injuring his shoulder but when he was sacked told Mr Musgrove that if the company wanted to get rid of him they would have to pay him out.

24. Mr Anderson was working for the company at the relevant time and he also stated that Mr Fuhrmann did not lift the beam from the scissor lift. Mr Anderson said that he was first asked to recall the incident about one month prior to the hearing, however, stated that he was sure of his recollection that Mr Fuhrmann did not lift the purlin.

25. Mr Clarke, the programs manager for the company, gave evidence that Mr Fuhrmann telephoned him on the morning of 9 September 2009 and said he would not be in as he had a sore shoulder. Mr Clarke said that Mr Fuhrmann did not provide any further details and he did not ask for any. Mr Clarke said that he was surprised to hear later that Mr Fuhrmann had made a claim because he was unaware of Mr Fuhrmann suffering any injury.

26. Under cross examination Mr Clarke agreed that he was aware that Mr Fuhrmann had earlier suffered an injury to his shoulder, that Mr Clarke was the safety officer at that time and had been involved in the investigation. He denied that Mr Fuhrmann told him on the phone that he had re-injured his shoulder the day before. Clarke said that when he saw Mr Fuhrmann on 10 September he did not ask him for any further information in regards to his shoulder.

27. Ryan Tilbrook stated that he was the supervisor at Tropical Arcade on 10 September 2009 and Mr Fuhrmann was lifting air-conditioning ducts over his head and that he seemed fit for work and did not tell Mr Tilbrook that he had a sore shoulder.

28. Rohan Murphy gave evidence that he and Mr Clarke decided to dismiss Mr Fuhrmann on 14 September 2009 because of a dispute he had had with Mitchell on the afternoon of 10 September. He said that it was after he lodged a defence to Mr Fuhrmann’s claim for unfair dismissal that he received the application for Workcover in relation to the shoulder injury.

Findings

29. I do not accept the evidence of Mr Clarke. He stated that, during the telephone conversation of 9 September, Mr Fuhrmann said only that he had a sore shoulder. That is clearly incorrect, as the diary entry made by Mr Clarke and tendered by the appellant, is, “Dave Furman (sic) sick sore right shoulder” (my underlining). Mr Fuhrmann therefore, must have been told Mr Clarke that he had hurt his right shoulder. In circumstances where Mr Fuhrmann had been at work the day before and had, to Mr Clarke’s knowledge, a previous injury to that shoulder, I do not accept that Mr Clarke would not have made any further enquiries as to how the injury had happened, unless, as Mr Fuhrmann states, he told him that he had re-injured it the day before.

30. I accept the evidence of Mr Fuhrmann that he injured his shoulder on 8 September when he was working for the company carrying out duties at the airport and lifted a steel beam over his head. That evidence is consistent with the fact that he was working on 8 September and away on 9 September, the phone call to Mr Clarke on 9 September in which he stated that he had hurt his right shoulder, the conversation he had with Watkinson on 10 September, the information he provided to the doctors, and the evidence of Mrs Fuhrmann.  

31. The appellant submits that Mr Fuhrmann has made a fraudulent claim (and that Mrs Fuhrmann is complicit in the fraud) due to his dismissal on 14 September and that this is demonstrated by his failure to submit the claim until 5 October 2009, after the company had filed a defence to his claim for unfair dismissal. However, when Mr Fuhrmann made the phone call to Mr Clarke on 9 September reporting that he had injured his shoulder he did not know that he would be dismissed on the following Monday. Also, the claim for unfair dismissal that he lodged on 14 September includes information regarding his shoulder injury and his concern that the injury could be a cause for his dismissal.

32. There is no evidence before the court of any other incident in which Mr Fuhrmann could have injured his shoulder and, in the absence of any evidence about a competing causal incident, any conclusion other than that the injury occurred at work on 8 September would be speculation.

33. There is no evidence on which a finding of fraudulent conduct on behalf of Mr or Mrs Fuhrmann could be made out and no such allegation was put to either of them in cross examination.

34. I therefore find that the respondent has not established, on the balance of probabilities, an error in the decision of Q-Comp and I confirm the decision of 9 February 2010.

35. The question of costs is adjourned to the registry and the parties are given leave to file written submissions within fourteen days. In the absence of any submissions, there will be no order as to costs