McGrath v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 119
•31 July 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | McGrath | v | Simon | Blackwood | (Workers' |
Compensation Regulator) [2014] QIRC 119
| PARTIES: | McGrath, Kenneth Francis | ||||||
| (Appellant) | |||||||
| v | |||||||
| Simon Blackwood (Workers' Compensation Regulator) | |||||||
| (Respondent) | |||||||
| CASE NO: | WC/2014/54 | ||||||
| PROCEEDING: | Appeal against a decision of Simon Blackwood | ||||||
| (Workers' Compensation Regulator) | |||||||
| DELIVERED ON: | 31 July 2014 | ||||||
| HEARING DATES: | 30 June and 1 July 2014 | ||||||
| MEMBER: | Industrial Commissioner Fisher | ||||||
| ORDERS: |
| ||||||
| WORKERS' COMPENSATION - APPEAL AGAINST DECISION - whether injury arose out of or in the course of employment - whether employment was a significant contributing factor - mechanism of injury - when injury occurred - failure to report injury - failure to seek early medical treatment or certification - appellant bears the onus to establish on the balance of probabilities the various elements of s 32 of the Act - determined employment elements of s 32 have not been satisfied - appeal dismissed. | |||||||
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 11, s 32 | ||||||
| APPEARANCES: | Mr R.D. Green, Counsel instructed by CMC Lawyers for the Appellant. Mr S.P. Sapsford, Counsel directly instructed by Simon Blackwood (Workers' Compensation | ||||||
| Regulator). |
Decision
[1] Ken McGrath made an application for workers' compensation dated 21 October 2013 for a shoulder injury he claimed to have sustained in January 2013. At that time Mr McGrath was employed as a Groundsman with Spotless Facilities Services Pty Ltd (Spotless) in Middlemount. Mr McGrath worked in a fly in/fly out capacity, although he was responsible for his own transport costs to and from the site. The injury was diagnosed as a rotator cuff tear being a full thickness tear of the supraspinatus (tendon) of the right shoulder.
[2] The application was rejected by WorkCover Queensland and confirmed on review by the Workers' Compensation Regulator (the Regulator). Mr McGrath now appeals that decision to the Queensland Industrial Relations Commission (the Commission).
[3] At the commencement of the hearing, the Regulator conceded that Mr McGrath was a worker within the meaning of s 11 of the Workers' Compensation and Rehabilitation Act 2003 (the Act). Further, the Regulator conceded that Mr McGrath had sustained a personal injury. The matters to be determined are whether the injury arose out of or in the course of Mr McGrath's employment and whether employment was a significant contributing factor to the injury.
Matters for Consideration
1. Mechanism of Injury [4] In his position of Groundsman, Mr McGrath was required to use many pieces of equipment with two stroke engines such as hand mowers; hedgers; brushcutters and blowers. The starting mechanism for this type of equipment was a rip pull cord. Mr McGrath complained that most of the equipment was old and difficult to start. Equipment was "butchered" for parts which were then used to keep other pieces of equipment functioning.
[5] Michael Dye, Grounds Supervisor, Spotless said that periodically both old and new equipment was hard to start but maintained any difficulties with starting the equipment was due to operator technique. However, under cross-examination, he grudgingly conceded that some of the equipment was old and hard to start. Ken Dalhaas, a Leading Hand Groundsman with Spotless at the time of Mr McGrath's employment, acknowledged that employees complained about the starting mechanisms of equipment.
[6] During the first week of January 2013 on a very hot day, Mr McGrath said he had a lot of hedges to trim with the last job being to blow the driveway. He made multiple attempts to start the blower. On one of those attempts he felt a sharp pain in his shoulder like a needle. He was going to throw the blower under the back wheel of the truck but his co-worker dissuaded him from doing so. Mr McGrath said his shoulder was "really sore" for the rest of the day. He had difficulty sleeping and subsequently took nurofen for pain relief.
[7] Mr McGrath was referred to Dr Gillett, Orthopaedic Surgeon, by his Solicitors for a medico legal report. Dr Gillett opined that the diagnosis of rotator cuff tear was consistent with the mechanism of injury as described by Mr McGrath. Only one incident would be required to cause the rotator cuff to disrupt. Given the history reported by Mr McGrath, Dr Gillett was prepared to link the event in January to the tear of his rotator cuff. Although he maintained that view after being queried by the Regulator, he stressed the importance of the accuracy of the history provided.
2. The date of the injury [8] In his application for compensation under the heading "when did your injury happen?", Mr McGrath stated that the injury occurred in January 2013 but did not nominate a date or a time. Under cross-examination Mr McGrath said he could not be specific about the date because he was working 14 days straight in shifts of 10 hours per day.
[9] Mr McGrath answered in the affirmative to the next question in the application of whether the injury happened over time. He responded to the question in the application of, "how did the injury happen?", by stating that the injury occurred by pull-starting the blower which was in poor operating condition continuously over time. In re-examination Mr McGrath said when he was completing the application for compensation form, "I just wrote down what I thought."
[10] Dr Gillett recorded 6 January 2013 as being the date of the injury. Dr Gillett had received a letter of instruction from Mr McGrath's Solicitors nominating that date. In evidence, Dr Gillett said that it is his normal practice to ask the patient to confirm the date and Mr McGrath had done so. In his oral evidence, Mr McGrath said he had not been specific about the date to Dr Gillett, but believed he would have said it occurred
th th th
around 4 , 5 or 6 January 2013. [11] Dr Gillett agreed under cross-examination that in the absence of a history and without contemporaneous radiography it was not possible to pinpoint when the rotator cuff tear occurred.
3. Failure to report the injury [12] Mr McGrath did not complete an incident report for his shoulder injury despite two such forms being completed in February 2013 for two incidents in which he was involved - a wasp sting and a "near miss" incident involving a chainsaw. He explained that he raised the matter of the blower hurting his shoulder at a pre-start meeting the day after the event. Under cross-examination he agreed that he should have completed an incident report form but did not as he took his shoulder pain to be just part of work.
[13] The incident report of the wasp sting, which involved three workers, occurred because Mr Dalhaas told them to report it. Mr McGrath did not consider the chainsaw incident was worth reporting as it was minor but acknowledged that, at least by the time this incident was formalised in an incident report, all incidents were required to be reported. Both incident reports were initiated by supervisors.
[14] Even after being included in the reporting of two incidents in which he had been involved and despite taking 12-14 nurofen per day, Mr McGrath did not formally report his shoulder injury. He did not consider his shoulder would be an ongoing problem although he acknowledged it was hard for it to heal because he continued to work.
[15] Mr Dye and Mr Dalhaas both gave evidence about the reporting process for injuries and incidents. Mr Dye said that employees were inducted into these processes on commencement.
[16] Both Mr Dye and Mr Dalhaas were adamant that Mr McGrath would have known and should have reported the injury as soon as it happened. A process exists whereby employees are required to make a report of any incident within 30 minutes of its occurrence. In addition, another process was in place whereby employees were required to "take 5" seconds before commencing a job to assess the work to be done. Employees were required to complete a form with respect to each job.
[17] Mr Dalhaas said that Mr McGrath could have raised the incident with the blower at a pre-start meeting however these records were not checked as part of the (appeal) process. Mr Dalhaas also conceded that employees, who were mostly mature aged males, often complained about stiffness and soreness at the end of the day, usually out of hours. These complaints were not documented in incident reports.
4. Failure to seek early medical treatment or certification [18] Mr McGrath treated the injury on the day it occurred by taking nurofen and said that over time he took between 12 and 14 per day to control the pain.
[19] When he returned to his usual place of residence, he received treatment by way of massage and manipulation from his stepdaughter who is a physiotherapist. This treatment apparently commenced in or about March 2013.
[20] Mr McGrath received acupuncture between January and March 2013 which reduced the pain and increased his flexibility. He did not report this treatment to Dr Gillett.
[21] Mr McGrath first reported a complaint with his right shoulder to his General Practitioner, Dr Ken Cameron, on 12 September 2013. He said his shoulder came to the fore after he had worked through his mental health issues and because his shoulder had not got better over time.
[22] Dr Cameron's medical records and Mr McGrath's oral evidence disclose that he was struggling with his mental health as a result of a number of serious personal and family issues. Dr Gillett said in his oral evidence that although it was unusual for Mr McGrath not to have reported his symptoms to his General Practitioner earlier, the other stressors in his life were ones that "might put a musculoskeletal pain on the backburner". In his opinion, a person would have an expectation that the shoulder would get better.
[23] Dr Cameron sent Mr McGrath for radiology on 12 September 2013 and in a further consultation on 20 September 2013, Mr McGrath was advised of the full thickness tear to his right shoulder.
[24] It was not until the consultation on 21 October 2013 with Dr Clemente Brazil (of the same practice as Dr Cameron), that Mr McGrath linked his injury to work. Dr Brazil's notes record:
"Hurt it sometime in January at work repeatedly trying to pull start a blower.
Since then, his right shoulder has been sore and gotten worse."
[25] Dr Brazil then issued a workers' compensation medical certificate on that date.
Findings
[26] Counsel for Mr McGrath submits that the factual matrix of old equipment with a history of not starting coupled with the supervisors' knowledge of that and Mr McGrath's evidence about being so frustrated with the blower on the day the injury happened that he felt like throwing it under the truck, supports the view that the injury occurred as alleged.
[27] Dr Gillett is satisfied that the rotator cuff tear is consistent with the mechanism of injury provided the history is accepted. However, the evidence discloses a number of concerns with the history.
[28] It is clear that Mr McGrath, despite claiming to have a clear memory of the incident, has provided different versions of when it occurred. The application for compensation form states only that it happened in January 2013. His oral evidence was that it happened in the first week of January 2013. The information he gave to his Solicitors was forwarded to Dr Gillett and, which Dr Gillett said was confirmed to him by Mr McGrath, is that it occurred on 6 January 2013. In his oral evidence, Mr McGrath did not accept that he nominated a specific date, rather, it was on a date between 4 and 6 January inclusive.
[29] Consistently with not nominating a date in his application for compensation, Mr McGrath stated that the injury happened over time. Mr McGrath said in evidence that he had been experiencing shoulder soreness from pulling the rip cords but on the day of the incident it was particularly acute. Under cross-examination he said he recalled the event that occasioned the injury occurred on a specific date during a specific activity. Despite being particularly frustrated with the equipment, he could not be more precise about the date.
[30] Although Mr McGrath might have been experiencing shoulder soreness for a period I am concerned that the specific event said to have caused the injury was not nominated on the application for compensation form. Reference has previously been made to Mr McGrath responding to two questions that the injury occurred over a period of time. Later in the form, when asked to state where the injury happened, he replied by stating "Middlemount-various locations". I am prepared to give some latitude to applicants when completing forms and am conscious of the delay between the injury is alleged to have occurred and the date of the application, however, the information provided by Mr McGrath shows a lack of clarity about when the incident occurred and particularly, whether it was a specific incident or an "over time" injury.
[31] The delayed seeking of medical treatment can be explained by the serious mental health issues Mr McGrath was suffering at the time. Although it might be unusual for treatment not to be sought for his shoulders when he was in pain, I am prepared to accept that for some months Mr McGrath was focussed on his mental health rather than physical issues. However, this does not explain his omission in not advising Dr Cameron of his high and frequent use of nurofen to control pain, especially when he was being prescribed other medication for his mental health.
[32] It also does not explain why it was not until the second consultation, after the radiological investigation, that the link between work and the injury was drawn.
[33] Mr McGrath did not explain why he did not seek physiotherapy treatment from his stepdaughter for a couple of months after he said the injury occurred given his shoulder was painful. During that time Mr McGrath was regularly returning to his place of residence and could have received that treatment. He also did not report his acupuncture treatment to Dr Gillett. The records of the acupuncture treatment ought to have been produced. There is no explanation as to the reason this did not occur nor is the absence of evidence from the stepdaughter or the acupuncturist explained.
[34] The evidence is clear that Mr McGrath did not report to Spotless either the injury or his experience of acute pain in his shoulder as a result of using the equipment. The Commission notes that no specific evidence was elicited from Mr McGrath as to whether he was inducted into the requirement to report incidents, however, he acknowledged that he was aware of the necessity to record any incident that occurred in the workplace. This admission contradicts the submission made on his behalf that because the incident reports about the wasp sting and the chainsaw occurred after the shoulder injury had occurred, the conclusion could not be drawn that he aware of the reporting requirements at the time of the injury. In addition, were I to accept that Mr McGrath was unaware of the incident reporting policy at the time his injury occurred, he would certainly have been aware of it in February 2013 when the two other incidents were reported. By that point he was taking 12-14 nurofen per day and was undergoing acupuncture and perhaps physiotherapy. Given this regime of treatment, the omission in not reporting the injury is significant.
Added to this is Mr McGrath’s evidence that safety was his main concern. On his own
evidence he constantly raised complaints about the state of the equipment and said that he did so on the day following the incident. He said he reported the blower hurting his shoulder at the pre-start meeting the day after the incident. However, that is significantly different to reporting that problematic equipment caused him sharp pain in his shoulder. It is particularly telling for a person focussed on safe work.
[36] The incident involving the blower should, according to the strict regime of incident reporting as outlined by Mr Dye and Mr Dalhaas, have been recorded on an incident report form. It is clear that this did not occur either by Mr McGrath or by his supervisors. I have reservations about whether Spotless was as stringent about incident reporting as claimed by Mr Dye in particular, especially where soft tissue injuries were concerned. I am satisfied though that had Mr McGrath identified pulling the rip cord on the blower multiple times caused him sharp shoulder pain then his supervisors would have acted to generate an incident report. Sharp pain is more than just muscle soreness and is indicative of a potentially more significant problem and one which would need to be documented.
Conclusion
[37] In these proceedings the Appellant bears the onus to establish on the balance of probabilities the various elements of s 32 of the Act. In this matter, the Regulator has conceded that Mr McGrath sustained a personal injury. Mr McGrath bears the onus of establishing that the injury arose out of or the course of employment and that employment was a significant contributing factor to the injury.
[38] I accept that it is possible that Mr McGrath sustained the injury as claimed and am satisfied, based on the evidence of Dr Gillett, that his injury is consistent with the claimed mechanism of injury. However, the combined effect of the omissions in Mr McGrath's evidence about treatment undertaken, the inconsistencies about when the injury occurred, his failure to report the incident in the required manner especially given the acuteness of the shoulder pain lead to the conclusion that the disputed employment elements of s 32 of the Act have not been satisfied.
[39] The appeal is dismissed and the decision of the Regulator is confirmed.
[40] All questions of costs are reserved.
[41] Order accordingly.
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