Luck v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 34
•27 February 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Luck v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 034 |
PARTIES: | Luck, Rachael v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2013/357 |
PROCEEDING: | Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 27 February 2015 |
HEARING DATES: | 3 and 4 March 2014 |
MEMBER: | Industrial Commissioner Black |
ORDERS : | 1. Appeal dismissed 2. The decision of the regulator dated 1 October 2013 is confirmed 3. The matter of costs is reserved |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION – whether employment a significant contributing factor to a left shoulder injury; where worker did not seek medical treatment for the injury until five months after the event; where the worker had a significant history of shoulder pain. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32, s 550 Theresa Helen Ward AND Q-COMP (C/2011/39) - Decision < Heald v Q-COMP (2004) 177 QGIG 769 Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181 |
| APPEARANCES: | Ms H. Blattman, Counsel instructed by Shine Lawyers for the Appellant. |
Decision
Introduction
Rachael Luck ("the appellant") appeals a decision of the Review Unit of the Workers' Compensation Regulator ("the regulator") to reject her application for workers' compensation. At the time of her alleged injury the appellant was employed as a cleaner with Bremer Cleaning. The appellant worked, on average, 25 to 30 hours each week.
The appellant lodged her application for compensation with WorkCover on 16 April 2013. On her claim form she described her injury as a shoulder injury, citing trauma to muscles/tendon. She stated in her application that she could not remember the date of injury but she could remember being sore after struggling to pull a 100kg carpet cleaner into a van on her own. The appellant nominated a date of injury on the claim form as 3 January 2013 and said that she first experienced symptoms on 8 April 2013.
Dr Amanda Illingworth issued the appellant with a Workers Compensation Medical Certificate on 16 April 2013. The certificate recorded the injury as being a left "Scubscapularis sprain". The certificate indicated that the appellant should return to work on suitable duties from 16 April 2013 to 31 May 2013.
The appellant had previously made a workers' compensation claim on 19 January 2012 in respect to a soft tissue injury arising from damage to her left shoulder sustained on 5 December 2011. Her workers' compensation claims history was in the evidence as Exhibit 7. The history disclosed that since 1995 the appellant had lodged 12 previous claims for compensation.
On 24 May 2013 WorkCover Queensland rejected the appellant's application for workers' compensation. On 23 July 2013, the appellant asked the regulator to review the Insurer's decision. On 1 October 2013, the regulator confirmed WorkCover's decision that the worker's claim was one for rejection. The appellant now appeals this decision to the Commission pursuant to s. 550 of the Worker's Compensation and Rehabilitation Act 2003 ("the Act").
Issue for Determination
The issue for determination in this appeal is whether the appellant was a worker who suffered a personal injury arising out of, or in the course of, her employment if her employment is a significant contributing factor.
Section 32 of the Act relevantly provides that 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."
Exhibit 1
The regulator tendered the following background documents as Exhibit 1:
· WorkCover Queensland Application for Compensation dated 16 April 2013
· WorkCover Queensland Reasons for Decision dated 24 May 2013
· Q-COMP Application for Claim Review dated 23 July 2013; and
· Q-COMP Review Unit Decision dated 1 October 2013
Nature of the Appeal
The appeal to the Commission is by way of a hearing de novo. To succeed with her appeal, the appellant must establish on the balance of probabilities that she injured her shoulder in the manner described on 29 November 2012.
Evidence
During the course of the proceedings, evidence was provided by 8 witnesses. The witnesses for the appellant were as follows:
· Rachael Luck
· Aimee Conneely
· Peter Hermann
· Dr Amanda Illingworth
· Dr Mark Robinson
· Shane Dumbrell
The witnesses for the Regulator were as follows:
· Dr Iniya RaveenthIran
· Yvonne Bee
It was the appellant's evidence that while she was attending to a job in Woodridge with a co-worker, Aimee Conneely, she received a call from her Manager, Yvonne Bee, who instructed her to clean the carpets in the home of the employer's accountant, Melissa Rayner. As part of the job it was necessary for the appellant to pick up a carpet scrubber from the house of the business owner, Mr Scott Rejthno, at Karalee. The appellant said that Ms Bee had told her not to say anything to Mr Rejthno about completing the job for Ms Rayner, as the job was a favour and was to be done "off the books". The appellant said that she told Ms Conneely about the job.
When she attended at the house, the appellant said that she had to transfer the scrubber from a storage container on Mr Rejthno's property into the back of the work van. The appellant said that she experienced difficulty in manoeuvring the carpet cleaner up a ramp and into the van. She said that the scrubber weighed about 100 kilograms and that it took her about half an hour to get the scrubber into the van. She said that it was in the course of this activity that she injured her left shoulder. She said that she experienced a burning pain behind her left scapula. She said that the burning pain did not go away and continued on from that date.
The appellant disassociated this injury from the previous left shoulder injury that she reported to Dr Illingworth on 1 February 2012 on the basis that the previous injury caused pain in a different area of the shoulder and that she had not experienced shoulder pain or discomfort in the period leading up to the incident with the scrubber.
The appellant said that despite the pain experienced when moving the scrubber she went on to complete the job at Ms Rayner's house. The job took about an hour and a half to complete. She said Ms Rayner was at home at the time and that she assisted her to shift the scrubber back into the van when the job was completed.
The appellant said that, notwithstanding her injury, she continued to work in accordance with her roster after the event and did not seek medical treatment for her injury prior to 8 April 2013.
While the appellant could not initially confirm the date of her injury she subsequently concluded following a review of time sheets that the injury occurred on 29 November 2012. While she had nominated 3 January 2013 as the date of injury in her workers' compensation claim form, she said in her evidence, that a reading of her time sheets assisted her in concluding that she was injured on Thursday 29 November 2011. The appellant also said that she had recorded her time in a diary but that this document had been lost.
The appellant's time sheets were in the evidence as Exhibit 3. A reading of the entries in the time sheets discloses that on 29 November 2012 a job was completed at Logan which took 30 minutes, followed by a job at 2/35 Defiance Road which took 2 hours. The appellant said that the Defiance Road address was at Woodridge. It was the appellant's evidence that she booked the work done at Ms Rayner's house to the job at Woodridge at Ms Bee's request. The reasoning was that Ms Bee did not want Ms Rayner's job to be shown in the record because it was being done at no cost to Ms Rayner.
The time sheet showed that after working for 2.5 hours on the morning of 29 November 2012, the appellant then proceeded to complete a three hour job at SEQ Water, followed by a one hour job at an IGA store. The appellant said that Karen Thomas and Ms Conneely worked with her on the SEQ job. The next day (Friday) the appellant worked on eight jobs for a total of 6.4 hours including 41 minutes travel. The following Monday the appellant worked on four jobs for a total of 6.25 hours.
The appellant said that she told Karen Thomas about her injury when working on the SEQ job. She said that when she telephoned Ms Bee to let her know that she had finished the job at Ms Rayner's house. She also told Ms Bee that she had trouble getting the scrubber into the van and that the activity had left her "quite sore". Ms Bee denied that the appellant reported any injury to her on 29 November 2012.
The effect of Ms Conneely's evidence was that she worked with the appellant on 29 November 2012. She said that during her time with Bremer Cleaning she worked with the appellant every day, Monday to Friday. She worked at Bremer Cleaning from October 2012 to January 2013. She recalled the appellant being asked to complete a carpet cleaning job at Ms Rayner's house. She and the appellant had completed jobs at RT Edwards and at Woodridge in the morning. She said that the appellant dropped her home after these jobs and then went to collect the carpet scrubber from the business owner's house. Ms Conneely said that in the afternoon while she was working with the appellant on the SEQ job, the appellant told her that she had hurt her shoulder and that she felt like that she had pinched something. Ms Conneely said that she and the appellant worked together the following day but that she did not remember the appellant making any further complaints about her shoulder. Ms Conneely said that at the end of work on 29 November 2012, she and the appellant returned the carpet scrubber to the business owner's home.
Mr Hermann worked for Bremer Cleaning between July 2012 and May 2013. During his period of employment with Bremer he used the carpet scrubber about three times. He said that the carpet scrubber was very difficult to manoeuvre and that the ramps provided were not effective. He said that when he used the scrubber he did not use the ramp but lifted the scrubber in and out of the truck. He recalled a time during his employment when Ms Bee telephoned him and told him that the appellant would not be at work because she had hurt herself. He could not recall the month in which this call was made.
Mr Dumbrell worked for Bremer Cleaning across 2012 and 2013. He said that he had used the carpet scrubber during the course of his employment. He said the scrubber was quite heavy and that it was difficult to move the scrubber in and out of the van. He said he did not use a ramp and lifted the scrubber in and out of the van.
The appellant said that she did not make an application for compensation at the time of the injury because the job requiring the use of the scrubber was "off the books" and that Ms Bee would not want to disclose the activity to the owner of the business.
The appellant said that she did not go to the doctor at the time of her injury because the doctor would have "put her off work" and she could not afford not to be working. While Dr Illingworth said that this view may have been consistent with the appellant's philosophy on work, she did not remember the appellant expressing such a view during a consultation with her.
The appellant accepted that she had problems in the past with her left shoulder. The records of the Grange Road Medical Services were in the evidence as Exhibit 9. The records showed that the appellant attended on Dr Raveenthiran in October 2006 complaining of a sore shoulder. She attended on Dr Raveenthiran in 2008 complaining of sore shoulders and sore neck muscles. She attended on Dr Illingworth in March 2010 complaining of a sore left shoulder. She complained to Dr Illingworth on 1 February 2012 of "burning pain, left angle scapular when driving". When she attended on Dr Raveenthiran on 8 April 2013 she reported "burning pain under left shoulder blade". The notes also include an entry of "tender left side mid back under scapula".
Dr Illingworth said that she did not issue a medical certificate following the appellant's consultation with her on 16 March 2010. The consultation on 1 February 2012 resulted in the issue of a medical certificate certifying unfitness for work for either two or three days.
Dr Raveenthiran agreed that the appellant was not provided with a doctor's certificate enabling time off work following the 2006 consultation. She issued a certificate giving the appellant one day off work after the 2008 consultation. She agreed that the appellant did not present to her with shoulder pain on any other occasion prior to April 2013.
The appellant said that her left shoulder symptoms got progressively worse following the incident on 29 November 2012. She said she would treat the shoulder with heat packs and rest and that "it would come good". She endured this state of affairs until early April 2013 when she was not able to get any relief from the pain. She said that she reached a point where she was starting lose strength in her left arm, and she was finding driving very painful to the extent that she could not any longer tolerate driving.
In terms of the performance of duties after 29 November 2012, the appellant said that she was finding it hard to grip things at work, she was dropping a lot of things at work, she was unable to carry heavy equipment, she was finding it difficult to move equipment around and she was struggling with the use of basic equipment such as vacuum cleaners, mops and buckets. She said that she needed someone to assist her with a lot of her work. Notwithstanding these difficulties at work, the appellant said that she was able to continue playing softball and soccer but that she was not able to complete the full 90 minutes of soccer and sometimes did not get a start with the softball team.
Despite attending on Dr Illingworth on 19 March 2013 for an unrelated complaint, the appellant did not discuss her symptoms or her pain resulting from the 29 November 2012 injury. When she did report pain in the left shoulder to Dr Raveenthiran on 8 April 2013 she did not tell the doctor that the pain resulted from an injury at work in late November 2012. She said that she did not "feel comfortable with that doctor". Despite however feeling comfortable with Dr Illingworth the appellant did not report shoulder pain to her until 16 April 2013.
Dr Raveenthiran said that in the appellant's consultation with her on 8 April 2013 the appellant was bit upset and teary, and that she talked about the pain and questioned why she was getting the pain. She said that the appellant informed her on 8 April 2013 that she worked as a cleaner and Dr Raveenthiran thought that the shoulder pain was ongoing work-related pain. It was not clear on the evidence whether this view reflected what the appellant had told the doctor or amounted to a presumption on the doctor's part derived from the appellant's statement of her occupation.
Dr Robinson examined the appellant on 5 November 2013 arising from which he prepared a report dated 26 November 2013. The report is in the evidence as Exhibit 10. Dr Robinson said that when he asked the appellant if she had any previous history of shoulder problems she said that she had no previous history. The appellant tried to explain this omission by saying that she was very flustered on this occasion and that she was on the verge of a panic attack. However, Dr Robinson said that he did not recall the appellant arriving late for the examination nor did he recall that her demeanour was "very flustered". His records showed that the appellant arrived at 12.59 pm for a 1.00 pm appointment which suggested the appellant arrived a little late. Dr Robinson said that he would have made an entry in his notes if a patient presented for the examination flustered and upset.
Ms Bee denied in her evidence that she asked the appellant to clean Ms Rayner's carpets. It followed that she was not aware of any report by the appellant that she had injured herself while working on this job. Ms Bee said that she did agree to a request from the appellant in January 2013 to allow her to use the carpet scrubber to clean carpets in the appellant's sister's house. The appellant denied that she injured her left shoulder while completing a job for her sister. She said that while Ms Bee approved the job she did not record it on the timesheet because she was not paid for the job. She thought that she did the work for her sister in early February 2013.
As a result of her injury the appellant said that she was off work between April 2013 and October 2013.
Matters in Contention
The evidence and submissions disclose that a number of matters are in contention in the proceedings. The significant matters which bear on the determination to be made are as follows:
(a) Was the appellant a "worker" for the purposes of the Act;
(b) Did the appellant sustain a personal injury;
(c) Whether the appellant reported her injury to her employer;
(d) The relevance of the appellant's history of shoulder pain;
(e) The medical evidence, including the failure of the appellant to seek medical treatment until five months after the claimed date of injury;
(f) Whether either party should have called Ms Thomas and Ms Rayner to give evidence;
(g) The evidence of the lay witnesses including matters relating to credit;
(h) Did any personal injury sustained by the appellant occur in the course of employment and in circumstances whether the employment significantly contributed to the injury.
Worker
The respondent did not concede that the appellant, at the relevant time, was a "worker" within the meaning of section 11 of the Act. The respondent's position was derived from a proposition that, if the appellant sustained an injury, it was probable that it was sustained when cleaning her sister's carpets in circumstances where such an activity fell outside her employment relationship.
Ms Bee's evidence was to the effect that in January 2013 she allowed the appellant use the carpet scrubber to clean her sister's carpets. Ms Bee said that staff were allowed to borrow machines for their own personal use. The appellant agreed that she had cleaned the carpets at her sister's house. She said that while her sister paid Bremer Cleaning $140 for the job, she did not claim wages for her work.
The matter to be tried in these proceedings is whether the appellant injured herself at work on 29 November 2012. Time sheets admitted into the evidence as Exhibit 8 show that the appellant was employed by Bremer Cleaning between 3 July 2012 and 2 April 2013, and that she worked on average between 25 and 30 hours a week.
For the respondent to succeed with its argument it would need to prove both that appellant injured herself while performing work associated with cleaning her sister's carpets and also that she did not injure herself at work on 29 November 2012.
The evidence is insufficient, however, to support a finding that the appellant injured herself at her sister's house on a date in January or February 2013. In the circumstances I am satisfied that the appellant was a worker for the purposes of the Act.
Personal Injury
The respondent did not concede that the appellant had sustained a personal injury. The respondent submitted that the nature of the report of injury and the credibility of the appellant were factors supporting a finding that no adequate proof of injury exists. In more detailed terms, the respondent submitted that the appellant failed to prove that she had suffered an injury in the following circumstances:
· The only injury diagnosed by either general practitioners or by the specialist orthopaedic surgeon was one of "pain" in the scapular region;
· There was little or no objective evidence of injury in the form of restriction of movement, radiological findings or any other objective criteria;
· The appellant provided distinctly different versions of the nature of the injury and its duration and onset in consultations with Dr Robinson, Dr Raveenthiran and Dr Illingworth and also in her own testimony in the proceedings;
· The alleged injury was not at any stage the subject of any treatment;
· The alleged injury was never reported to the employer nor the subject of timely attendance at a medical practitioner;
· There was no timely application for compensation.
The respondent made the submission that if it were found that the appellant experienced pain on 29 November 2012, the evidence nevertheless leads to a conclusion that the pain was brief and easily dealt with. It was consistent with such a state of affairs that the appellant failed to report the injury to her employer and did not seek medical treatment.
There is a distinction to be drawn between whether the appellant has suffered a personal injury and whether the appellant has suffered an injury which is causally connected to her employment. While the respondent's arguments to the effect that the appellant has not suffered an injury are not without some merit, I am of a view that the medical evidence associated with the appellant's attendance on Dr Raveenthiran and Dr Illingworth on 8 April and 16 April 2013 supports a balance of probabilities finding that the appellant has suffered a personal injury.
History of Shoulder Problems
The medical records show that the appellant attended at the Grange Road medical centre on four occasions between 2006 and 2012 complaining about shoulder problems. She attended on Dr Raveenthiran on 24 October 2006 and 10 January 2008 and on Dr Illingworth on 16 March 2010 and 1 February 2012. A matter for consideration in these proceedings is the relevance and weight to be attached to the appellant's history of shoulder problems.
The appellant's submission was that any symptoms associated with these consultations were much less serious in quality, different in nature, and had resolved well before the injury sustained on 29 November 2012. In differentiating the 1 February 2012 and the 29 November 2012 injuries, it was put that the symptoms experienced in February were of a minor and transient nature when compared with the injury sustained in November. It was further the submitted that if the appellant's primary argument that the injury was a "stand alone" injury was not accepted, there was ample evidence to support a finding that the injury amounted to an aggravation of a pre-existing injury.
It was Dr Illingworth's evidence that the symptoms complained about by the appellant on 1 February 2012 and 16 April 2013 were very similar. Her evidence about the comparison was recorded at T2-3:
"I see. Well, would you go now then, please, to your entry of the16th of April 2013 and you will see the first line there reads, "Left subscapular pain persists and is getting worse". Would you have a look at the whole of that entry and having regard both to your clinical entries and the examinations that you performed on 16 April 2013 and 1 February 2012, are you able to say whether the injuries diagnosed in those consultations are different or the same or what the situation is, please?---Certainly looking at the – the complaints that Ms Luck made to me on that 16th of April 2013 the issue is very similar, so the pain again is described as a burning pain on the left medial scapular border. So that's the inner border of the scapular. And the pain can shoot down the hand and she complains that it was worse with driving. So those are all very, very similar complaints to the – the type of pain she was describing in February 2012."
Dr Illingworth also said at T2-2 that in the appellant's consultation with her on 16 March 2010, the appellant complained of a painful left shoulder and a feeling of weakness in her trapezius muscle. Dr Illingworth said that when she examined the appellant she found that although the appellant had full range of movement of the shoulder, she had some mild impingement.
While there is a basis to distinguish between the February 2012 and November 2012 events, the history of prior shoulder problems is relevant to the resolution of the following questions:
· Was the appellant's shoulder condition as reported to her GP on 8 April 2013 attributable to an ongoing shoulder complaint and not to a specific event at work;
· Whether the shoulder condition diagnosed or assessed on 8 April 2013 and/or the shoulder pain the appellant claimed that she experienced on 29 November 2012, was consistent with a left shoulder condition which at times became symptomatic.
· The weight to be attached to Dr Robinson's evidence.
Dr Robinson said that while information about prior consultations relating to left shoulder pain was not made available to him at the time of his examination of the appellant, the conclusion that he expressed in his report would not be significantly altered by the appellant's omissions. Notwithstanding this, it would have been preferable if Dr Robinson's examination of the appellant were conducted in a context where he was fully informed of the appellant's history of shoulder pain or shoulder problems. This was particularly relevant in circumstances where the examination did not reveal any structural damage, where the doctor relied on the subjective responses of the appellant in terms of pain assessment, where there was no range of movement limitations and the diagnosis did not rely on radiological evidence.
Medical Evidence
The appellant made her first visit following the 29 November 2012 incident at work to the Grange Road medical centre on 19 March 2013 when she saw Dr Illingworth. This attendance however was not related to shoulder pain. Subsequently on 8 April 2013 the appellant attended on Dr Raveenthiran where she did seek treatment for left shoulder pain. She then attended on Dr Mowat the next day in relation to the same condition before seeing Dr Illingworth again on 16 April 2013.
The appellant's explanation for not seeking treatment for her left shoulder prior to 8 April 2013 was that she had initially put the discomfort down to a muscle strain and hoped that it would come good with heat packs and rest. However over a period of time, the pain got progressively worse.
The entries in the medical notes of the appellant's consultation with Dr Raveenthiran on 8 April 2013 include the following:
· "burning pain under the left shoulder blade, pain in upper back long standing works as a clener (sic);
· "no recent injury"
· "teary + wanted to know why getting pain, as wanted to continue work, not paid if misses work"
· "states physipo (sic) made it worse in the past"
· "tring (sic) hot pack, rubs helps a bit"
· "no history of trauma"
In this consultation the appellant did not disclose any connection between her shoulder condition and an event at work. While the medical record indicates that the appellant reported that she worked as a cleaner, it also noted that there was "no recent injury"; that she did not know why she was experiencing pain; and that she had "no history of trauma”.
When the appellant sought further treatment for shoulder pain the following day (9 April 2012) she reported to Dr Mowat that the shoulder pain was worse while driving and while standing at work. She said that she was still doing heavy lifting at work and did not want a light duties program because it would not be accepted by her employer. The medical notes also indicated that the appellant did not want to discuss her low mood and that she "only wants to see Dr Illingworth for that". While there was a discussion about the appellant's occupation with Dr Mowat, there was no specific mention in the notes about a particular workplace event that caused the shoulder injury.
The appellant advanced a number of reasons why she did not discuss the 29 November workplace incident with Dr Raveenthiran on 8 April 2013. These reasons are set out below:
(i) Dr Raveenthiran was not the appellant's usual doctor and she was not comfortable with this doctor;
(ii) The appellant was upset and teary the day she consulted Dr Raveenthiran;
(iii) The appellant was hoping to continue working and was seeking an outcome which provided relief for pain without preventing the continuation of work;
(iv) Given Dr Illingworth's evidence that that employment and work were important to the appellant's general well-being and her self-esteem, it was understandable that the appellant may not have wanted to disclose a work related injury because she was worried that she would have to take time off work.
I am not persuaded by the reasons advanced. Firstly, despite putting forward the proposition that she was uncomfortable with Dr Raveenthiran and preferred to attend on Dr Illingworth, the appellant did not report any shoulder pain to Dr Illingworth, when she had the opportunity to do so, on 19 March 2013. Further the medical notes of her consultation with Dr Mowat on 9 April 2013 suggest that the appellant's preference for Dr Illingworth was related to treatment for her symptoms of depression. Additionally, the medical records in the evidence as Exhibit 9 show that the appellant attended on Dr Raveenthiran on twenty two occasions between November 2002 and May 2013.
Secondly, the medical notes of the appellant's consultation with Dr Raveenthiran on 8 April 2013 do not suggest that the appellant's demeanour or state of mind inhibited the doctor-patient discussion. The notes of the consultation were very detailed, referred to a range of symptoms and conditions and suggested that a physical examination related to the left shoulder was undertaken. There is no plausible reason why the appellant could not have made a more complete disclosure of the circumstances surrounding the cause of her shoulder condition. Similar observations can be made about the appellant's attendance on Dr Mowat on 9 April 2013.
The appellant's reasons for not reporting her injury to a medical practitioner before 8 April 2013 were not convincing. She suggested that because the Rayner job was "off the books" she was precluded from making an application for compensation or in disclosing the fact that the job had taken place. In the end result, however, this line of thinking did not preclude her from making an application for compensation in April 2013.
The appellant also said that she did not want to go to a doctor because the doctor would stop her from going to work. I have difficulty in accepting this reasoning. This does not explain, however, why she did not visit a doctor soon after the workplace incident and why she endured pain or discomfort for five months before seeking treatment. Also the appellant should have been aware that while a doctor could recommend that she not work, they could not direct her to stop work. If continuing at work was the overriding priority, the logical course for the appellant would have been to attend on a medical professional and seek treatment which might enable her continuing participation in the workforce.
The other proposition put forward by the appellant to the effect that she not afford to be off work is also difficult to accept. Given her history of workers' compensation claims, the appellant would know better than the average worker that any time lost through an injury at work is compensable through the scheme. She would know that if a doctor issued a certificate of unfitness for work she could make a workers' compensation claim and, subject to acceptance, secure payment for any wages lost.
The appellant first attributed her shoulder condition to an incident in the workplace in a consultation with Dr Illingworth on 16 April 2013, when the appellant was issued with a workers' compensation medical certificate. The entries in the medical record state in part that the appellant reported that her pain was persisting and that it was getting worse, and that while she could not remember an acute injury she could remember being very sore after struggling to pull a 100 kg carpet cleaner into a van.
The appellant submitted that it was clear on the medical evidence that she had suffered an injury at work. It was said that fundamentally each of Dr Robinson, Dr Raveentherin and Dr Illingworth attributed the appellant's presentation to the work she did as a cleaner. However, in my view, at its highest the medical evidence can only establish that the injury may have been sustained at work.
Dr Robinson did not examine the appellant until November 2013 and relied on the history provided to him by the appellant. He entered a diagnosis of "Left Peri Scapular Muscle Pain". He said that the shoulder injury was consistent with the mechanism described by the appellant. In terms of causation he relied entirely on the history provided by the appellant.
It was the respondent's view that the diagnosis of Dr Robinson was confined to the existence of pain in a particular area and the diagnosis was entirely reliant on the report of the appellant, not for example, a conclusion based on imaging investigations. The respondent drew attention to the following matters arising from the evidence of Dr Robinson:
· Dr. Robinson confirmed that there was no identifiable structural injury to the appellant's left shoulder at the time of consultation and no investigations to support such an injury.
· Dr. Robinson agreed that his diagnosis of left periscapular muscle pain was a diagnosis entirely determined on the subjective account from the appellant.
· In relation to his examination, apart from a "slightly abnormal pattern of "scapulothoracic movement" there were no other objective signs of impingement or injury.
· Importantly, Dr. Robinson agreed, having regard to his report and his clinical notes, that there was no report and no record of a "Burning pain" as described by the appellant in these proceedings. Rather, Dr. Robinson gave evidence of a description by the appellant of a "constant dull ache"
· Dr. Robinson agreed that there was in fact "a distinct history of pain in relation to her left shoulder".
· The respondent said that the following extract from the report of Dr. Robinson accords with the statement by the appellant to Dr. Raveenthiran on 8 April 2013 that she did not know what was causing her pain.
"She experience fluctuating shoulder pain which then gradually increased until she presented to her local doctor in April. She did not initially identify the loading of the scrubber as the cause of her symptoms. A Workers' Compensation claim was initiated. Rachel subsequently identified the cause but her claim was denied".
It was the respondent's submission that the evidence does not support a finding linking the onset of pain reported to Dr Raveenthiran on 8 April 2013 with an event or events which occurred during the appellant's employment.
Reporting of Injury to Employer
The appellant said that she reported the injury to Ms Bee, and informed Ms Rayner, Ms Conneely and Ms Thomas of the injury. In terms of reporting the injury to the employer, the only relevant notification was the one allegedly made to Ms Bee. Ms Bee denied that she commissioned a job at Ms Rayner's house and denied that the appellant had informed her that she had sustained an injury on 29 November 2012. The appellant said that she had spoken to Ms Bee to let her know that the job at the Rayner house was done and that in the course of this conversation she mentioned that she had trouble getting the scrubber into the van, and that the activity had left her "quite sore".
If I were to accept the appellant's version it would be in a context where she mentioned her condition in a phone call, that there was no discussion about stopping work or attending on a doctor, that the appellant continued on and completed two further jobs in the afternoon and that she never subsequently stopped work or provided her employer with a medical certificate, which certified an injury or any level of incapacitation. In such a context it is probable that an employer, after the event, would not construe the appellant's comment that she was sore to amount to an injury.
Having regard to all the facts and circumstances relevant to this appeal it is not necessary to reconcile the differences in the evidence around notification of the injury to the employer. This matter is not determinative in terms of the outcome of the appeal.
Failure to Call Evidence
The appellant criticised the regulator's failure to call both Karen Thomas and Melissa Rayner to give evidence. The appellant said that her injury had been reported to both Ms Thomas and Ms Rayner. The submission was that "if anyone could have refuted the Appellant's claims it was these two witnesses and the Respondent called neither of them. No reason at all was offered for the failure to call Ms Rayner or Ms Thomas. They were the Regulator's witnesses to call."
This is a surprising submission by the appellant given that Ms Rayner had been named in the appellant's list of witnesses and had been the subject of an attendance notice. Ms Rayner was included on witness lists submitted by the appellant to the QIRC on 9 January and 18 February 2014, and was the subject of an attendance notice taken out by the appellant's solicitors on 17 February 2014. Further, it was the regulator's submission that it wrote to the appellant on 17 January 2014 and requested that Ms Rayner and others be made available to the regulator in the event that the appellant determines not to call them to give evidence.
In these circumstances, Ms Rayner's participation in the proceedings was the responsibility of the appellant and her exclusion from the proceedings is more likely to lead to an inference adverse to the appellant, rather than an inference adverse to the respondent.
Ms Thomas was a co-worker of the appellant. It was the appellant's evidence that she had told Ms Thomas that she had hurt herself moving a carpet scrubber. The appellant relied on this conversation for corroboration of her version of events. I am not disposed to conclude that an inference adverse to the respondent should be drawn because Ms Thomas was not called to give evidence.
In the end result I do not propose to speculate on the content of evidence which in different circumstances may have been adduced. Invitations from the appellant to draw inferences adverse to the respondent are declined.
Credit
The credit of the significant lay witnesses requires review. The appellant said that Ms Bee was not a credible witness and that her testimony had been contradicted by the evidence of the appellant, Ms Conneely, and Mr Dumbrell. Given Ms Bee's denial that she commissioned the Rayner job, a conflict in the evidence of Ms Bee on the one hand and Ms Conneely and the appellant on the other hand was inevitable. In terms of Mr Dumbrell's evidence, the contradiction arose from Ms Bee's denial that jobs were never arranged "off the books". The effect of Mr Dumbrell's evidence was that he had helped out his employer when a new contract was won and Ms Bee had asked for volunteers to donate some time to bring the condition of the premises up to a par standard. He also said that he helped a co-worker who had to return to a job that was inadequately completed by a former employee. I was not provided during the proceedings with a definition for the term "off the books", nor am I aware if all witnesses shared a common understanding of the term. In Ms Rayner's case the proposition was that the job was "off the books" because it needed to be kept secret from the owner and because the appellant was asked to book her labour to another job.
The circumstances were not the same in the examples provided by Mr Dumbrell and I am reluctant to make a finding of credit adverse to Ms Bee. There was no secrecy about the call for volunteers and the text message made clear that no payment would be made for any work performed. The other example appeared to involve a policy or practice where, if the job was not done properly, the employee would be obliged to return and get it right in their own time. In circumstances where the term "off the books" was defined and where Ms Bee was not asked to explain any apparent inconsistency in her evidence, I decline to make any global finding to the effect that, in the event of conflict, the evidence of the appellant and Ms Conneely should be preferred to the evidence of Ms Bee.
The effect of Ms Conneely's evidence was to support, in part, the appellant's version of what transpired on 29 November 2012. Ms Conneely's recall of events was forensic in some instances and vague in others. On the one hand she remembered that the job at Woodridge only took 10 minutes, but on the other hand she was not certain of the location of the other job completed that morning and was not sure whether the job was at Logan or Beaudesert. In this regard she said that it was early in the morning and she had slept most of the time in the van. She knew that the appellant complained about her shoulder while they were working on the SEQ job, but she could not remember the month in which the complaint was made. She also suggested in her evidence that her understanding of what had transpired on 29 November 2012 may not have arisen from her independent recollection of events but from what she had been told by the appellant. It might be inferred from her evidence that the appellant told her what had happened and asked her if she remembered the same events.
The failure of the appellant to inform Dr Robinson of her history of shoulder pain is significant. It was not an omission that was easily explicable on two counts. Firstly, the appellant had reported shoulder pain to medical practitioners on four separate occasions since 2006. Secondly, the most recent report on 1 February 2012 resulted in the appellant making an application for workers' compensation. Her attempt to attribute the omission to her being flustered and upset at the time of the examination because she arrived a little late is weak and her explanation is contradicted in the evidence of Dr Robinson, who said that he would have made a note of any such condition.
While I decline to make findings of credit adverse to any witness, the weight to be attached to the particular evidence given by each witness is a matter for consideration.
Significant Contributing Factor
The appellant relied primarily on her own evidence to establish the necessary association between her claimed injury and her employment, in circumstances where no one else was a witness to the activity which the appellant said caused her injury. The appellant relied on the evidence of Ms Conneely to provide circumstantial support in that Ms Conneely said that she knew that the appellant had to collect the carpet scrubber from the business owner's house in order to complete the job; that she was with the appellant in the van when the carpet scrubber was returned to the house; and that she remembered the appellant saying on the afternoon of the event that she had hurt herself moving the scrubber. The appellant also relied on exchanges that she said had occurred between her and others on 29 November 2012 to establish both that an injury had been sustained and that it occurred in the course of her employment.
On the appellant's version of events, on the completion of the job in question, she told Ms Rayner that she was "really sore" and told Ms Bee that she was "quite sore". Ms Conneely said that the appellant told her later in the day at the SEQ job that she felt like she'd pinched something, that it wasn't much, or that it wasn't a really big thing. While Ms Conneely's evidence may reflect on a stoic character, they may also indicate that the appellant's pain was nothing out of the ordinary and consistent with the daily rigours of the occupation.
Notwithstanding, the claimed injury the appellant continued working that day on jobs at SEQ and IGA and worked as normal the following day and subsequently until 8 April 2013. In the event of continuing pain, it may have been expected that the appellant would have complained of discomfort to Ms Conneely or Ms Thomas when she next worked with them, but on the evidence, this did not occur. There was a similar lack of directness about the evidence relating to Ms Rayner. The appellant said that "Melissa gave me a hand because I said that I was actually really sore from getting it in". In so far as Ms Thomas is concerned, the appellant said that "she spoke to Karen" about the injury but the evidence did not disclose what was said to Ms Thomas.
It was the respondent's view that the following circumstances supported a finding that employment was not a significant contributing factor to the injury claimed to have been sustained by the appellant:
· Failure to report an injury described as a "burning pain" which allegedly continued unabated from 29 November 2012 to date of first report on 8 April 2013;
· Failure to make application for workers' compensation given the appellant's developed understanding of the process; and
· The designation of work as a contributing factor by reference to difficulties with a carpet scrubber arrived at in through a retrospective reconstruction of work.
The respondent submitted that in the event that the Commission found that the appellant experienced an onset of pain in the course of her employment with Bremer Cleaning on 29 November 2012, the evidence nevertheless established that, at the highest, the pain was both of fleeting and minor intensity. Such a finding is supported by the fact that other than commenting on the pain to co-workers on the afternoon of the incident, no further comment or complaint was made about the matter, and also by the appellant's failure to seek medical treatment. The respondent relied on the decisions in Ward[1], Heald[2] and Pleming[3] to argue that such a "fleeting snapshot of discomfiture" does not satisfy the requirement that the employment be a significant contributing factor.
[1] Theresa Helen Ward AND Q-COMP (C/2011/39) - Decision < Heald v Q-COMP (2004) 177 QGIG 769
[3] Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181
Conclusion
The matter for determination is whether the necessary causal connection has been shown to exist between the personal injury the appellant reported to Dr Raveenthiran on 8 April 2013 and a workplace event occurring on 29 November 2012. It is my view that a balance of probabilities finding cannot be entered to this effect.
In the first instance there is a reasonable doubt whether the appellant suffered an injury on 29 November 2012, in circumstances where despite any pain or discomfort that the appellant may have felt on the day, she continued to work as normal and did not seek any medical treatment. Further, while the appellant may have complained of soreness or pain to co-workers on the afternoon of 29 November 2012, the complaining did not extend beyond this and there is no independent evidence of continuing pain or discomfort after 29 November. Finally, while the appellant said there was some disruption to her participation in sporting activities, she did not find it necessary to stop her involvement.
The uncertainty associated with the identification of the cause of the injury reported by the appellant on 8 April 2013 is also a relevant consideration. In neither the consultation with Dr Raveenthiran on 8 April nor the consultation the following day with Dr Mowat, did the appellant connect her pain with a specific workplace event. It was not until the following consultation on 16 April 2013 with Dr Illingworth, when a workers' compensation certificate was issued, that a date and a cause of injury was identified through a process of reconstruction. This process appeared to be premised on a view that the cause of injury was work-related and excluded from consideration the appellant’s significant history of left shoulder pain. The imprecision inherent in the appellant’s case was not assisted by her failure to provide an adequate and consistent explanation for her failure to report her discomfort to a medical practitioner, and to identify the cause of her pain, before April 2013.
A determination in favour of the appellant requires a finding that it was more probable than not that the pain reported on 8 April 2013 was caused by an event at work on 29 November 2012. On the facts and circumstances of this case I am unable to arrive at such a conclusion.
The appeal is dismissed and the matter of costs is reserved. I order accordingly.
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