McLay v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 96
•30 May 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | McLay v Simon Blackwood (Workers' Compensation |
| Regulator) [2014] QIRC 096 | |
| PARTIES: | McLay, Kamachi |
| (Appellant) | |
| v | |
| Simon Blackwood (Workers' Compensation Regulator) | |
| (Respondent) | |
| CASE NO: | WC/2013/186 |
| PROCEEDING: | Appeal against a decision of Simon Blackwood |
| (Workers' Compensation Regulator) | |
| DELIVERED ON: | 30 May 2014 |
| HEARING DATES: | 17, 18 and 19 March 2014 |
| 16 April 2014 (Respondent's submissions) 7 May 2014 (Appellant's submissions) 14 May 2014 (Respondent's submissions in reply) | |
| MEMBER: | Industrial Commissioner Fisher |
| ORDERS: | 1. | The appeal is allowed. |
| 2. | The Commission sets aside the decision of | |
| the Regulator and substitutes a new decision that the claim is one for acceptance. | ||
| 3. | The Regulator is to pay the costs of the | |
| Appellant, and failing agreement, liberty to apply is granted. |
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Injury to left shoulder working as a room attendant - Whether the injury arose out of or in the course of employment - Whether employment was a significant contributing factor - Evidence - Whether work involved repetitive heavy lifting - Exigencies of employment - Determined employment significantly contributed to the injury - Appeal allowed. |
| CASES: | Workers' Compensation and Rehabilitation Act |
| 2003, s 11, s 32(1) Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48 | |
| APPEARANCES: | Mr J.P. Morris, Counsel instructed by Shine Lawyers for the Appellant. Mr R.J. Clutterbuck, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. |
| Decision |
[1] Kamachi (Sheila) McLay sustained an injury to her left shoulder when she was working as a room attendant at O'Reilly's Rainforest Retreat (O'Reilly's). The Workers' Compensation Regulator, Simon Blackwood (the Regulator) concedes that Ms McLay sustained a personal injury but disputes the remaining elements of s 32(1) of the Workers' Compensation and Rehabilitation Act 2003. Thus, the issues to be determined in this appeal are whether the injury arose out of or in the course of Ms McLay's employment and whether employment was a significant contributing factor to the injury.
[2] Ms McLay made an application for workers' compensation to WorkCover Queensland which was rejected. This decision was confirmed upon review by the Review Unit, Q-COMP. Ms McLay appeals that decision. (Note: Since the filing of the appeal the Workers' Compensation and Rehabilitation Act 2003 (the Act) has been amended with the result that Q-COMP has been abolished and replaced by the Workers' Compensation Regulator, Simon Blackwood (the Regulator). In this decision the Regulator is used in place of Q-COMP).
Relevant facts
[3] Ms McLay commenced employment at O'Reilly's in June 2009. Prior to that time, Ms McLay had worked as a Sales Assistant in Fiji for about 25 years. She had not sustained any shoulder injuries to her left shoulder while working in Fiji.
[4] From June 2009 until February 2012, Ms McLay primarily worked in the Canopies section of O'Reilly's. There, she worked alone and was responsible for the cleaning of rooms, including changing bed linen and towels, making beds, cleaning spas, dusting and cleaning the bathroom. The bedding configuration was a double bed and a single bed unless she was cleaning a suite, which had a king size bed. Ms McLay experienced pain in her left shoulder when she was working in the suites in the Canopies section making the king beds and cleaning the spas, however, it was not so severe as to prevent her from performing her duties. She did not consult her General Practitioner about her shoulder soreness at that time.
[5] Ms McLay went to Bangkok for a holiday in February 2012 for one month. On her return in March 2012, Ms McLay was transferred to the villas by Anne Jackson who had assumed the role of Manager of Housekeeping. The villas are situated approximately one kilometre down the hill from O'Reilly's. They are privately owned but O'Reilly's has the management rights. Staff of O'Reilly's are responsible for cleaning the villas.
[6] Teams of three workers clean the villas which have two or three bedrooms and two bathrooms. The workers decide amongst themselves how the work is to be apportioned. When Ms McLay went to work at the villas, Courtney was the team leader. As Courtney was pregnant, she cleaned the kitchen while Ms McLay and the other worker each cleaned one of the bedrooms and the bathrooms. She cleaned about eight to nine villas on an average day. Ms McLay also cleaned the external spa.
[7] The bedding could be configured into two single beds or zipped together to form a king size bed. Ms McLay said she pulled the bed, which was on castors on carpet, away from the wall, so that she could strip the linen. In making the bed, a flat bottom sheet and top sheet were fitted. This work involved lifting each corner of the bed to fit the bottom sheet. The bed was lifted at the bottom end to fit the top sheet, the doona and the runner. The bed was also lifted at the sides to tuck in the sheets, the doona and the runner. The sheets also had hospital corners. Ms McLay used her left arm to lift and her right to tuck. She is right arm dominant.
[8] The spa was located outdoors. To clean it, Ms McLay took her weight with her left arm while stretching out with her right arm.
[9] Ms McLay said that within a few weeks of starting work in the villas her left shoulder became painful. The pain was in the same area as she had experienced when working in the Canopies section. The pain in her left shoulder occurred when she was making the beds. Ms McLay found the beds heavier in the villas compared to those in the Canopies section. Ms McLay told Bruce Griffiths, the Assistant Manager of Housekeeping, of her shoulder pain. He confirmed in evidence that Ms McLay told him her shoulder was sore and she was receiving injections. Mr Griffiths could not recall Ms McLay advising what work caused her shoulder to become painful. No incident report was completed.
[10] Ms McLay also said that after she first saw her General Practitioner she told Ms Jackson that she had another appointment in two weeks and her shoulder was hurting. She asked Ms Jackson to be placed on light duties but this was refused because other staff were on light duties. Ms Jackson did not have any recollection of the conversation, including the request for light duties. Had such a request been made then Ms Jackson would have contacted Ms McLay's doctor to develop a suitable duties plan.
[11] Ms McLay received a cortisone injection on 22 May 2012. There was some momentary relief but the condition worsened.
[12] Ms McLay resigned her employment in June 2012 to return to Fiji for a three month holiday. She told O'Reilly's staff that she was going to help renovate a house, however, in evidence Ms McLay said she did not do this as her shoulder was too painful and it worsened over time. She spent the time relaxing and catching up with family and friends. Her daughter-in-law undertook the cooking and the cleaning. Ms McLay said she could not lift her arm above shoulder height.
[13] Ms McLay did not seek medical assistance for her shoulder while in Fiji, however, on her return to Australia, she returned to her General Practitioner, Dr Andrew Rees, who sent her for a further cortisone injection.
[14] Ms McLay did not make a claim for workers' compensation before she left for Fiji because she believed her pain would improve over the next few months. When this did not occur and she returned to Australia, Ms McLay made the claim.
[15] Leonie Smith, the Finance Manager, said that she had found a handwritten note in the Workplace Health and Safety Officer's file that Ms McLay had contacted O'Reilly's on 13 November 2012 asking whether there was any work available. Ms McLay denied contacting O'Reilly's to enquire about further work.
Evidence of Health Practitioners
[16] Ms McLay did not receive specialist treatment for her injury but was examined by Dr Mark Robinson, Orthopaedic Surgeon and Dr Andrew Frean, Specialist in Occupational and Environmental Medicine.
[17] Dr Robinson: Dr Robinson is an Orthopaedic Surgeon specialising in hand and upper limb surgery. He saw Ms McLay on 6 August 2013 for the purposes of providing a medico-legal report for the Appellant. That report dated 12 August 2013 was admitted as an exhibit and Dr Robinson also gave oral evidence.
[18] He opined that Ms McLay's injury commenced as left supraspinatus tendonitis/subacromial bursitis which progressed through to adhesive capsulitis (frozen shoulder). Dr Robinson said that the inflammatory changes that occur in the tendon and bursa with rotator cuff tendonitis can trigger inflammatory changes in the capsule which then progress through to adhesive capsulitis. In answer to a question about the causes of bursitis/tendonitis, Dr Robinson said:
"Its most common cause is related types (sic) much movement and actions with the arm, where the arm is used at greater than 30 degrees to the axis of the body, and with increasing angles, increasing loads on the hand, increasing distance the hand is from the shoulder there is an associated increase in load or tension on the tendons of the rotator cuff to move the arm around. That tension - when - when the tendon is under tension it doesn't get a blood supply, so you have periods of relative ischemia or no blood supply and that can lead to inflammatory changes within the tendon and fibrosis within the tendon. So individuals with - with increasing angles, repetition, weights, there's an increased period of relative ischemia which then proceeds to an inflammatory change within the shoulder joint. But we have inflammatory changes within the tendon and the - the bursa, that causes them to swell a little bit and then they start to rub underneath that arch of ligament and bone."
[19] Dr Robinson said Ms McLay explained to him the nature of her work in the villas and that her symptoms developed within a few weeks of starting work in the villas. He was of the opinion that the bursitis/tendonitis most likely developed as a result of a change to her occupational activities which included moving the beds and making a different size bed. There were no recreational activities that Ms McLay reported that could have been an alternative cause. However, under cross-examination Dr Robinson conceded that Ms McLay did not provide him with a detailed analysis of the work that she performed, including that the king beds were comprised of two single mattresses zipped together. He said though that her focus was on the bed making. In response to a question about what in the role change that caused her condition, Dr Robinson said it was the combination of carrying linen bags, the making of beds and the cleaning roles. He did not consider that it was just making the beds that caused her condition.
[20] In his report Dr Robinson apportioned "50 per cent of her presentation to occupational activities and 50 per cent to age and constitutional factors relating to the development of her symptoms and shoulder condition." A factor in the development of tendonitis was Ms McLay performing housekeeping work at age 48 as compared to a 25 year old person performing the same type of work as the latter would have a greater degree of recuperation after physical activity. He acknowledged that women aged 45 to 55 have a higher incidence of frozen shoulder compared to the general population.
[21] Dr Robinson explained that he did not consider the bursitis to be degenerative in nature because he considered such conditions are ones which have increasing incidence with advancing age. Bursitis is activity related and the higher the level of activity the more likely it is to develop. In his opinion frozen shoulder is an inflammatory condition and not a degenerative one. It incidence peaks in the middle decades and does not increase with advancing years as osteoarthritis does for example.
Dr Frean: Dr Frean examined Ms McLay on 27 November 2012 at the request of WorkCover Queensland. He prepared a report on 7 December 2012 and a supplementary report on 30 September 2013 after having been provided with Dr Robinson's report. The two reports of Dr Frean were tendered as exhibits and Dr Frean also gave oral evidence.
[23] In his first report, Dr Frean was of the opinion that Ms McLay suffered from subdeltoid bursitis and, in the absence of trauma, it was most likely degenerative in nature. In his subsequent report, Dr Frean did not dispute the diagnosis given by Dr Robinson. As he noted, the difference in opinion is over causation. In his view, the left shoulder condition arose during the course of her normal occupational duties and activities of daily living; no trauma to the left shoulder was reported; there was no significant difference between the duties in the villas and those in the guesthouse and if occupational factors were significant then symptoms were more likely to occur on the dominant side, i.e., the right shoulder. He concluded that, "Ms McLay's left shoulder condition is likely the result of degenerative rotator cuff disease" and did "not consider that her work was likely to be a significant contributing factor."
[24] Under cross-examination, Dr Frean said that if occupational factors were relevant, then he would have expected them to be mentioned in the notes of the General Practitioner or in an incident report. The notes of the General Practitioner show retrospective reporting and no record of treatment between May and October 2012.
Justin O'Sullivan: Mr O'Sullivan is a physiotherapist with additional qualifications in occupational health and safety. He has his own practice consulting in ergonomics and occupational health and safety.
[26] At the request of the Appellant, Mr O'Sullivan undertook an assessment of the work performed by Ms McLay in the villas at O'Reilly's on 10 February 2014 and provided a report dated 18 February 2014. His report was tendered as an exhibit and Mr O'Sullivan also provided oral evidence.
[27] Mr O'Sullivan observed Ms McLay making the bed, including pulling it out from the wall, cleaning the shower and the spa. In his report he said the key concerns for left shoulder strain relate to:
Pulling the king bed out from the wall in each villa; Lifting the mattress with the left hand to tuck in; and Leaning on the left arm to clean the spa.
[28] In his opinion, the force to pull out the king bed is significant and high for a female. He considered the back and shoulders were at risk and the shoulders can be strained if the load is excessive. The task of lifting the mattress for tucking appears to be repetitive as it requires 14 actions or more for one bed using one arm. The force required is in excess of that recommended for infrequent one handed lifting by women. Hospital corners add significantly to the demands of bed making as the tucking style appears to require more effort.
[29] Mr O'Sullivan said the cleaning of the spa was also demanding due to having to lean out a long distance while supporting the upper body with the left arm. This method means that the effort by the left shoulder muscles was significantly increased as up to 30-50 per cent of body weight may have to be supported.
[30] Mr O'Sullivan also inspected a guestroom. He concluded that:
"The tasks performed at the guest rooms may have demanded some moderate or greater left shoulder effort but the work was different in terms of more inbuilt variety and being more self-paced to a degree."
Consideration and Findings
[31] In deciding whether the injury arose out of or in the course of employment and whether employment was a significant contributing factor to the injury, the Queensland Industrial Relations Commission (the Commission) must consider the evidence of the health practitioners as well as the evidence about the nature of Ms McLay's duties at O'Reilly's especially while employed in the villas.
[32] The Commission is satisfied that Ms McLay's injury arose out of or in the course of her employment. It is clear Ms McLay did not experience any traumatic event at the workplace nor can her injury be attributed to any sporting or household activity. Although she experienced some symptoms at work while working in the Canopies section, those symptoms developed and intensified while working in the villas.
[33] The Regulator submits that in determining whether employment was a significant contributing factor, only the bed making and pulling the bed out from the wall can be considered as these were the only two tasks that were mentioned in the Notice of Appeal. The Appellant is bound by her case and no amendment was made to the grounds of appeal. This submission is rejected by the Appellant who contends that the question for the Commission to determine is whether employment was a significant contributing factor and not just whether two tasks contributed to the injury. Section 32(1) defines an injury as one that arises out of or in the course of employment where employment is a significant contributing factor. In this case the focus has been on the tasks involved in bed making albeit that other duties were performed by Ms McLay and the range of duties were taken into account by the specialist doctors in reaching their respective opinions as to whether occupational factors contributed to the injury.
[34] Ms McLay's evidence in the hearing was not confined to bed making and pulling the bed out from the wall, although this was the main focus. Dr Robinson also referred to the other duties undertaken. No objection was taken by the Regulator during the hearing to the evidence of the other tasks performed. The function of the Commission is to determine whether Ms McLay sustained an injury within the meaning of s 32(1) of the Act. In the circumstances, I intend to consider the whole of the evidence about Ms McLay's occupational activities but with a particular focus on bed making and pulling the bed out from the wall.
[35] The Regulator put Ms McLay's credit in issue. Reference was made to a number of matters, including Ms McLay's denial of re-applying for a position on her return from Fiji; her evidence that she reported her pain to Ms Jackson and her evidence that she had not sought treatment or took pain relief while in Fiji. The Appellant submits that Ms McLay was a witness of credit. The Commission does not intend to deal with each of the matters raised by the Regulator. I accept that there were differences between the evidence of Ms McLay and other witnesses. That is not unusual. However, I have reached the view that Ms McLay should be accepted as a reliable witness for the types of reasons submitted by the Appellant, that is, she had a good recollection of most events, her evidence was not undermined under cross-examination and she made concessions where appropriate.
[36] The Commission notes that Ms McLay experienced pain in her left shoulder while working in the Canopies section. However, that pain did not cause her to stop work. Ms McLay provided detailed evidence about the tasks she performed in that area especially in relation to the number of beds made, the steps involved in bed making and the frequency with which the bed was lifted to tuck in sheets, the doona and the runner. The same detail was not provided with respect to the bed making in the villas, however, Mr O'Sullivan's report notes that each king bed required Ms McLay to lift the bed 14 or more times (up to 18 times) to tuck in the sheets and the doona. He also noted that the king beds also required the middle of the head and the foot to be tucked in compared to single beds. His report was not challenged on these points and is thus accepted. Ms McLay said that she cleaned about eight or nine villas on an average day and this accords with Mr O'Sullivan's report that Ms McLay estimated making between 35-65 beds per five day week in the villas. In my view, the evidence of Ms McLay and Mr O'Sullivan establishes that the work in the villas with respect to bed making was repetitive. This should also be seen in comparison with the work in the Canopies section which Mr O'Sullivan described as having more in-built variety and was more self-paced.
[37] Ms McLay believed the beds in the villas were heavier than in the Canopies section. The Regulator contends the weight of the bed was not as significant as made out by Ms McLay because, despite her reference to having to lift a king mattress, in effect, she was only lifting a single mattress. This is because a king size bed was comprised of two single mattresses joined together. Reliance was also placed on the evidence of Ms Jackson who said that the beds in the villas were not heavier than those in the Canopies section.
[38] The Commission does not have any independent evidence about the weight of the mattresses in the villas as compared to those in the Canopies section. However, I note that in the Canopies section, Ms McLay was usually responsible for making double and single beds. I do not have independent evidence about the effect of zipping two single mattresses together. The question of weight must be considered in the context of Ms McLay's petite stature and medium build. For these reasons and notwithstanding Ms Jackson's view, I am prepared to accept the evidence of Ms McLay that she found the mattresses heavier in the villas.
[39] I also consider that pulling a king size bed out from the wall was heavy work. This conclusion is reached based on the evidence of both Ms McLay and Mr O'Sullivan. Based also on the evidence of Ms McLay, I accept that this type of work was heavier than that which she was used to in the Canopies section.
[40] Dr Frean was concerned about the absence of any report at the workplace. The Regulator also relies on Ms Jackson's evidence to cast doubt over Ms McLay's evidence of contemporaneous reporting of shoulder pain. Ms Jackson said that had a report of pain been made by Ms McLay then she would have required a medical certificate to be produced. However, Mr Griffiths confirmed Ms McLay mentioned the pain to him and that she was receiving cortisone injections.
[41] Although the primary responsibility for completing an incident report rests with the injured worker, their supervisor also has a role. It is clear that Ms McLay believed that the purpose of an incident report was to report accidents rather than incidents of pain. Mr Griffiths said that incident reports were completed when there had been an accident or when pain was continual. One off complaints about pain would not be documented in an incident report. The absence of a formal health and safety policy may have also led to some confusion about the purpose of incident reports. In the circumstances of this case I am satisfied that the absence of formal documentation at the workplace is not significant. Based on the evidence of both Ms McLay and Mr Griffiths, the Commission is satisfied that Ms McLay contemporaneously reported left shoulder soreness at her workplace.
[42] Dr Frean was of the opinion that the cause of the injury was degeneration. In large part he based that opinion on the absence of a full history over the period June to October where Ms McLay did not receive any medical treatment. This was the period that Ms McLay was on holidays in Fiji. She did not participate in the renovations and undertook few household duties. This period of rest did not alleviate her symptoms, in fact they became worse. Ms McLay said she did not seek medical assistance in Fiji because she had been told the cortisone injection could take up to two months to have full effect. She was waiting for this time to expire and then sought medical treatment on return to Australia. Although Ms McLay's response may be considered to be impractical in circumstances where the condition was worsening, it was consistent with the medical advice apparently given to her about the effect of the treatment.
[43] Dr Frean considered that had occupational factors been strongly significant then the limb with the most activity would be more likely to be damaged than the other one. Dr Frean made detailed enquiries into the nature of the work undertaken by Ms McLay and believed that the type of tasks undertaken by Ms McLay might come within the range of significant occupational factors had she reported the problem contemporaneously to her General Practitioner. The records from the General Practitioner show that on 15 May 2012, Ms McLay reported "some months sore left shoulder" and "works as a cleaner at o'reillys".
[44] The evidence of Ms McLay and Mr O'Sullivan is that Ms McLay used her left arm to undertake much of the heavy repetitive work such as lifting the mattresses. This was the limb that was damaged. Further, the medical records from her General Practitioner show her reporting the left shoulder condition in May 2012 and the "some months" note shows that the problem coincided with her transfer to the villas. In light of all of this, the Commission considers that Dr Frean's concern about the significance of the occupational factors has been satisfactorily addressed.
[45] It is also important to note that at this time Ms McLay received a cortisone injection for her shoulder. She did not require time off work and so no medical certificate was produced. However, a workers' compensation medical certificate was obtained when the three month period of rest had not alleviated the symptoms.
[46] Dr Robinson was prepared to concede that a person's constitution plays a role in developing frozen shoulder. Ms McLay focused on bed making in her history to Dr Robinson and he considered that this work would place a significant load on the rotator cuff such that it would place her in the group of developing shoulder pathology.
[47] His evidence also was that the shoulder first presented with bursitis/tendonitis and progressed to adhesive capsulitis. The enquiry must therefore be whether employment significantly contributed to the initial presentation of the injury.
[48] In determining whether employment is a significant contributing factor to the injury,
regard is to be had to the "exigencies of the employment" that is, what the worker in
1
fact does in the course of employment. As Keane JA said, and with whom de Jersey CJ and Muir J agreed, "[27] The requirement of s 32 of the WCRA that the employment significantly contribute to the injury is apt to require that the exigencies of the employment must contribute in some significant way to the occurrence of the injury..."
[49] I have concluded that the combined effect of the evidence of Dr Robinson and Mr O'Sullivan is that Ms McLay's employment, in particular, the bed making and moving the bed from the wall in the villas, have significantly contributed to her left shoulder injury. This was repetitive heavy work and is consistent with the type of movement that Dr Robinson described as being causative of bursitis/tendonitis. Although Ms McLay's age and constitution are also significant factors, I do not consider that the repetitive heavy nature of the tasks that Ms McLay performed while in the villas can be discounted or perceived to have minimal effect.
[50] The appeal is allowed. The Commission sets aside the decision of the Regulator and substitutes a new decision that the claim is one for acceptance.
[51] The Regulator is to pay the costs of the Appellant, and failing agreement, liberty to apply is granted.
[52] Order accordingly.
1
Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48.
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