Nathwani v Workers' Compensation Regulator

Case [2021] QIRC 325

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

 Nathwani v Workers' Compensation Regulator [2021] QIRC 325
PARTIES:

Nathwani, Saher
(Appellant)

v

Workers' Compensation Regulator
(Respondent)

CASE NO.:

 WC/2019/175

PROCEEDING:

 Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

 21 September 2021

HEARING DATES: 

1 and 2 July 2020
DATES OF WRITTEN SUBMISSIONS:

Appellant's written submissions filed on 24 December 2020 and Respondent's written submissions filed on 27 January 2021

MEMBER:

 Merrell DP
HEARD AT:

Brisbane

ORDERS:

1. Pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act 2003:

(a)     the review decision of the Respondent dated 29 August 2019 is set aside; and

(b) another decision is substituted, namely, that the Appellant suffered an injury within the meaning of s 32 of the Workers'Compensation and Rehabilitation Act 2003.

2.     Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:

(a)     the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Monday, 11 October 2021; and

(b)     unless otherwise ordered, the decision on costs be determined on the papers.
CATCHWORDS:

WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - worker employed as a Customer Service Attendant in a service station - worker suffered injury to her left shoulder diagnosed as adhesive capsulitis - worker applied for an assessment of permanent impairment in relation to left shoulder injury - review decision of respondent that worker did not suffer an injury within the meaning of the Workers' Compensation and Rehabilitation Act 2003 - appeal by worker against review decision - whether worker's adhesive capsulitis in her left shoulder arose out of, or in the course of, her employment - whether employment was a significant contributing factor to that injury - worker's injury arose out of, or in the course of, worker's employment and workers' employment was a significant contributing factor to injury - review decision of respondent set aside and another decision substituted, namely, that the worker suffered an injury within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003
LEGISLATION:

Industrial Relations (Tribunals) Rules 2011, r 41

Workers' Compensation and Rehabilitation Act 2003, s 11, s 32, s 132A, s 179 and s 558

CASES:

Avis v WorkCover Queensland [2000] QIC 67; (2000) 165 QGIG 788

Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031; (2015) 252 IR 461

Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100

JBS Australia Pty Ltdv Q-COMP [2013] ICQ 13

Kavanagh v Commonwealth [1960] HCA 25; (1960) 103 CLR 547

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48; (2006) 1 Qd R 519

Parks v Workers' Compensation Regulator [2018] QIRC 147

Ribeiro v Workers' Compensation Regulator [2019] QIRC 203

Rowe v Q-Comp [2009] QIRC 106; (2009) 190 QGIG…

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Details
AGLC
Nathwani v Workers' Compensation Regulator [2021] QIRC 325
Case
[2021] QIRC 325
Decision Date

CaseChat Overview and Summary

In the case of Nathwani v Workers' Compensation Regulator, the Court was called upon to determine whether Ms Nathwani, a former Customer Service Attendant at a service station, was entitled to workers' compensation for an injury to her left shoulder diagnosed as adhesive capsulitis. The primary issue before the Court was whether the adhesive capsulitis in Ms Nathwani's left shoulder arose out of, or in the course of, her employment and if her employment was a significant contributing factor to that injury. This determination was pivotal as it would affect her eligibility for workers' compensation under the Workers' Compensation and Rehabilitation Act 2003.

The Court meticulously reviewed the evidence presented, including Ms Nathwani's testimony about her work duties, the physical demands of her job, and the progression of her injury. Ms Nathwani argued that her employment significantly contributed to her condition due to repetitive lifting and manual handling tasks. The Workers' Compensation Regulator contested this, asserting that there was no direct link between her employment and the injury. The Court found that Ms Nathwani's employment did indeed play a significant role in the development of her adhesive capsulitis, as her job frequently involved repetitive lifting and manual handling activities. The Court determined that the injury arose out of, and in the course of, her employment, and that her employment was a significant contributing factor to the injury.

As a result of this finding, the Court set aside the review decision of the Workers' Compensation Regulator and substituted it with a decision that Ms Nathwani suffered an injury within the meaning of the Act. The Court also directed the parties to exchange written submissions on the costs of the hearing and determined that the decision on costs would be made on the papers unless otherwise ordered. This ruling ensures that Ms Nathwani is entitled to workers' compensation for her injury, affirming the importance of considering the nature of employment and its impact on workers' health.

Orders

Orders of the court

1. Pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act 2003:

(a) the review decision of the Respondent dated 29 August 2019 is set aside; and

(b) another decision is substituted, namely, that the Appellant suffered an injury within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003.

2. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:

(a) the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Monday, 11 October 2021; and

(b) unless otherwise ordered, the decision on costs be determined on the papers.

Background

Background to the litigation

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Evidence

Evidence Before The Court

When it was suggested to Ms Nathwani that she did not tell Dr Lingwood she would spend three or four, or up to six hours on a single shift packing and unpacking stock or that she would have to unpack up to 50 crates of milk, she stated that Dr Lingwood did not ask her those questions and that she described her work to Dr Lingwood in a general way which was what Dr Lingwood had asked.[84][84] T 2-42, l 39 to T 2-43, l 6.My assessment of Ms Nathwani's evidenceThe injury to Ms Nathwani's right shoulder, her subsequent favouring of her left shoulder and the change in duties she performed from late 2016/early 2017 Ms Nathwani submitted that:·she maintained her position in relation to the nature and extent of deliveries of milk crates;·the photographic evidence (Exhibits 3 and 4) was consistent with what she said about the way the system of work changed over the period of time, the impact of such changes, that access to the stockroom was very difficult and that it was crowded with stock; and·in relation to her lifting above shoulder height, she denied that it was very rare for her to lift boxes higher than her body and while accepting that there were step stools and stepladders to assist in her raising her body height, she stated they were not of assistance because, due to their number, boxes had to be stacked against the wall.[85][85] Ms Nathwani's submissions, paras. 23-28. The Regulator submitted that:·Ms Nathwani's failure to accept that she knew until the end of her employment not to stack boxes above 1.4 m high in the stockroom was contradicted by an acknowledgement that she knew the line painted on the wall was there to remind staff not to stack items higher than the line;[86] and·the evidence contained in Exhibit 4, and Ms Nathwani's evidence generally, did not prove that Ms Nathwani did not have ready access to the step stools and ladders needed to do her work.[87][86] The Regulator's submissions, para. 59.[87] The Regulator's submissions, para. 59. However, the Regulator accepted:·Ms Nathwani's description of her role, namely, comprising of duties associated with the management of the till and various stock duties related to the operation of the convenience store; and·Ms Nathwani's evidence that:- her role originally constituted a proportion between the console and stock work as being one where stock work comprised a smaller proportion of the work; and- the stock work activities increased over time and leading up to the point where she started to experience right shoulder symptoms and then further, increasing through to the time she developed left shoulder symptoms.[88][88] Ms Nathwani's submissions, para. 10 and the Regulator's submissions, para. 10. Indeed, the Regulator accepted that it was not controversial that Ms Nathwani's work as a CSA frequently involved repetitive lifting, sometimes above shoulder height, and other manual handling work.[89] [89] The Regulator's submissions, para. 11. Further, there is no real dispute about the circumstances and consequences of the March 2016 injury to Ms Nathwani's right shoulder.

Decision

Reasons for decision

I cannot accept this submission. There was no medical evidence that tends to support the contention that Ms Nathwani's diabetes became a personal injury because of the aggravation of her adhesive capsulitis as a result of the changes to the work processes. Conclusion The issues for determination in this matter were:·did the adhesive capsulitis injury to Ms Nathwani's left shoulder arise out of, or in the course of, her employment? and, if so ·was Ms Nathwani's employment a significant contributing factor to that injury? For the reasons I have given, the adhesive capsulitis Ms Nathwani suffered in her left shoulder arose out of, or in the course of, her employment and her employment was a significant contributing factor to that injury. The review decision of the Regulator should be set aside and a decision that Ms Nathwani has an injury within the meaning of the Act substituted in its place. I will hear the parties as to costs.Orders I make the following orders:1. Pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act 2003:(a)the review decision of the Respondent dated 29 August 2019 is set aside; and(b)another decision is substituted, namely, that the Appellant suffered an injury within the meaning of s 32 of the Workers'Compensation and Rehabilitation Act 2003.2. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:

Ratio Decidendi

Legal Principle Established

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