Newman v the Workers' Compensation Regulator
[2015] QIRC 193
•12 November 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Newman v the Workers' Compensation Regulator [2015] QIRC 193 |
PARTIES: | Newman, William James v the Workers' Compensation Regulator |
CASE NO: | WC/2015/180 |
PROCEEDING: | Appeal against a decision of the Workers' Compensation Regulator |
DELIVERED ON: | 12 November 2015 |
HEARING DATES: | 7 and 8 October 2015 |
HEARD AT: | Townsville |
MEMBER: | Industrial Commissioner Fisher |
ORDERS: | 1. The appeal is dismissed. 2. The decision of the Regulator is confirmed. 3. The Appellant is to pay the Regulator's costs of and incidental to the appeal. Failing agreement, the Regulator is granted liberty to apply. |
| WORKERS' COMPENSATION - APPEAL AGAINST DECISION - whether cluster headaches resulted from lightning strike - where workplace investigation - where onus rests with Appellant to establish on the balance of probabilities that the injury arose out of or in the course of employment and employment was a significant contributing factor - where the medical evidence does not establish a link between the lightning strike and the development of cluster headaches - appeal dismissed. | |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 MacArthur v WorkCover Queensland (2001) 167 QGIG 100 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 |
| APPEARANCES: | Ms C. Batzler, Agent for the Appellant. |
Decision
William Newman claims to have been electrocuted on 8 January 2014 as a result of a lightning strike when he was working as a Storeperson at Cornetts IGA, Garbutt. He was in the back stores area of the shop, working with damaged stock which was in a plastic crate on freestanding metal racking. He heard a loud crack and for a split second he could not let go of the metal racking he was holding onto. His right arm was sore and tense.
Mr Newman completed an Incident Report stating that he had been "zapped during lightning strike" and provided it to the Assistant Store Manager at 10.10 a.m. A co‑worker who was working on the cardboard crusher next to him reported the incident at 10.29 a.m. Mr Newman sought medical attention from My Family Doctors Pty Ltd (Kirwan). This was not the usual medical practice he attended. He said it was difficult to obtain an appointment with his General Practitioner of 25 years, Dr Patrick Gibney of the Aitkenvale Family Health Centre.
Mr Newman told Dr Sivarajah Prabhaharan of My Family Doctors that he had been electrocuted and his right arm was sore. Dr Prabhaharan performed an ECG and found Mr Newman's heart to be normal. He could not find any other effects after performing a range of other tests. Dr Prabhaharan prescribed neurofen for the muscle twitch and rest. He only issued a standard medical certificate for that day as he was not told the incident happened at work.
Mr Newman went home and rested. He returned to work the following day despite still feeling sore. When showering the next night he noticed bruising running down his thigh and the front of his shin as a result of a metal pen being in his pocket at the time of the electrocution. His foot was also completely black. Mr Newman did not seek any medical attention for these conditions as he was not sore and was too embarrassed.
Jennifer Inglis, the Human Resources Executive Manager of Cornetts, said that a workplace investigation was undertaken by the Workplace Health and Safety Coordinator of Cornetts. As part of the investigation, the WH&S Coordinator instructed the store manager to determine whether there had been any outages and to contact the centre management. That investigation did not identify that any lightning strike had occurred, that lights had not gone out as Mr Newman had claimed, that electrical equipment had tripped or the building had been damaged. Further, when Mr Newman claims to have been electrocuted, he was standing about four metres from the door of the building.
In or about May 2014, Mr Newman began to experience severe headaches. He did not report this to Dr Gibney at that time or during a consultation with another doctor at My Family Doctors on 1 May 2014.
It was not until 14 July 2014 that Mr Newman told Dr Gibney he was experiencing headaches and his facial symptoms had returned. Mr Newman had suffered from headaches associated with an episode of depression and anxiety in 2013. He had also reported an episode of Bell's Palsy to Dr Gibney on 6 January 2014. Dr Gibney sent Mr Newman for an MRI in light of his headaches and the repeat episode of Bell's Palsy type symptoms. That MRI did not identify any abnormality.
On 18 July 2014, Mr Newman told Dr Gibney for the first time that he had been electrocuted. Dr Gibney said he understood this had occurred in January. As a result of his symptoms, Dr Gibney referred Mr Newman to Dr Craig Costello, Neurologist, at The Townsville Hospital. In the letter to Dr Costello, Dr Gibney said the electrocution had occurred at work two months ago. Mr Newman was ultimately seen by Dr Ravindra Urkude, Consultant Neurologist at The Townsville Hospital.
Dr Gibney issued Mr Newman a Workers' Compensation Medical Certificate on 27 August 2014. By that time, cluster headaches had been diagnosed by Dr Urkude.
On 28 August 2014, Mr Newman had a pre-arranged meeting with the Garbutt Store Manager and Ms Inglis to discuss his excessive leave from work. Mr Newman provided Ms Inglis with the Workers' Compensation Medical Certificate during that meeting.
In January 2015, the management of the Garbutt Shopping Centre in which Cornetts IGA is situated arranged for Michael Clay, owner of MAKK Electrical Contractors, to provide a report and carry out an inspection of the site to determine whether it had been affected by lightning. MAKK undertakes regular maintenance and repairs to the Garbutt Shopping Centre. Mr Clay examined the roof and other aspects of the building.
In his report to the centre managers, and confirmed in his evidence to the Commission, Mr Clay said if the building had been struck by lightning:
"I would seem to - well, I think I would see physical signs of a lightning strike … There would be charring, pitting … it would leave slag. It would leave discolouration to the metal. If it was a big enough lightning strike, it would do physical damages and blow holes through concrete, metal, etc."
Mr Clay stated that if lightning had struck the building he would have seen a visible sign, even after 12 months.
However, Mr Clay did not have access to the Cornetts IGA premises. While he considered the Cornetts IGA had not been affected, he could not exclude the possibility that it had. In his opinion, had power been temporarily lost in the Cornetts IGA, other businesses in the complex would have been affected. He said:
"There would be telltale signs: electric tills on the registers would've gone down, ATMs would've gone down, computers would've gone down. So there would've been indicators within the centre, not just with IGA; with all the tenancies."
While Mr Clay did not seek out whether lightning had hit close to but outside the building, he said that a stray current would have been deterred from entering the building by surge diversion on the switchboards of the IGA and the main complex.
Mr Newman stated that he has been severely impacted as a result of the electrocution at work on 8 January 2014. He is now constantly in pain. He is unable to drive and has minimal tolerance for noise.
Dr Gibney gave evidence to the Commission. He said Mr Newman had been a strong and healthy man before the electrocution. Although he had previously experienced headaches, these were associated with his anxiety and depression in 2013 and had completely resolved by the time of the report of headaches in 2014. The cluster headaches that Mr Newman reported in 2014 were of a completely different type.
Dr Gibney was concerned when Mr Newman informed him for the first time on 18 July 2014 of his electrocution in January 2014 and the fact that Mr Newman had delayed advising him of his headaches. However, he was not surprised as Mr Newman is a very tough and resilient man who believes it is a sign of weakness to report symptoms.
Dr Gibney wrote to WorkCover Queensland on 1 April 2015 opining that on the balance of probabilities Mr Newman's cluster headaches were causally related to the lightning strike electrocution. In oral evidence, Dr Gibney could not give an opinion as to whether Mr Newman displays symptoms of a person who has been struck by lightning. He went on to say that Mr Newman is a very sick man. He believed the symptoms Mr Newman now has such as the cluster headaches, memory loss and unsteadiness of gait could have been caused by a lighting strike.
Although Dr Urkude was issued with an Attendance Notice, he failed to appear. His non-attendance is the subject of separate consideration. Dr Urkude's medical records were not admitted into evidence as a result of his failing to appear.
Conclusion
In this matter, the claimed injury is that of cluster headaches resulting from being electrocuted by a lightning strike at work on 8 January 2014. The injury is said to have been caused by the electrocution because Mr Newman was holding onto the metal racking with his right arm and his cluster headaches occur on the right side of his head.
In an appeal to the Commission from a decision of the Regulator, the onus rests with a worker appellant to establish on the balance of probabilities that the injury arose out of or in the course of their employment and that employment was a significant contributing factor to the injury. Satisfaction of the onus of proof on the balance of probabilities requires more than mere possibility.[1] The test requires the Commission to reach a level of actual persuasion.[2]
[1] MacArthur v WorkCover Queensland (2001) 167 QGIG 100, 101.
[2] Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262, 284 (Spigelman CJ).
The state of the evidence about whether Mr Newman was electrocuted as a result of a lightning strike is unsatisfactory for a number of reasons. Mr Newman reported being electrocuted to his employer via an incident report. Mr Newman's report seems to have been confirmed by his co-worker. He also told Dr Prabhaharan of the electrocution but neglected to mention that it had occurred at work. Mr Newman delayed advising Dr Gibney of his electrocution at work.
Neither the workplace investigation nor the inspection undertaken by Mr Clay corroborated a lightning strike impacting the IGA. Although direct evidence was not given by the Workplace Health and Safety Coordinator and any report of the investigation was not tendered, Ms Inglis gave evidence that the workplace investigation did not reveal any electrical issues in store such as lights going off and other electrical equipment tripping.
Mr Clay's inspection is also not without its difficulties as it was undertaken 12 months after the alleged lightning strike and he did not have access to the IGA store. Nonetheless, he did not find any physical evidence on the building which he would have expected to still be present even after that passage of time. He also considered that a stray current from a strike outside the building would have been deterred from entering it.
I consider it unlikely that Mr Newman would concoct a report of being electrocuted from a lightning strike unless he reasonably believed that to be the case. His uncontroverted evidence is of a history of working through a number of injuries that occurred in the workplace and which would have defeated the ordinary person. His stoicism is confirmed by Dr Gibney. However, the investigations, such as they are, cast considerable doubt on a lightning strike affecting or entering the building. As the evidence is inconclusive, I have not reached the level of actual persuasion that Mr Newman was electrocuted at work as a result of a lightning strike.
Even were it to be established that Mr Newman had been electrocuted at work, the medical evidence does not establish a link between that event and the development of cluster headaches some months later. The various scans that Mr Newman has undergone have not identified any abnormality. I note Dr Gibney's evidence that scans do not necessarily identify all problems such as nerve damage or cluster headaches. In the absence of positive test results, medical opinion must be based on other evidence or knowledge.
Dr Gibney described Mr Newman as being a very sick man whereas he previously had been fit and healthy. His medical records disclose various injuries and he has had a heart attack for which he continues to be prescribed medication. Mr Newman also suffered from headaches associated with his depression. He reported an episode of Bell's Palsy two days before the incident on 8 January 2014.
Although Dr Gibney was emphatic in his letter to WorkCover that Mr Newman's cluster headaches were causally related to the lightning strike electrocution, he retreated from this position in his oral evidence. At best, his oral evidence was that it was possible Mr Newman's symptoms were caused by a lightning strike. His oral evidence is to be preferred because of the circumstances in which it was given. Dr Urkude's medical notes and reports would not have assisted Mr Newman had they been admitted into evidence. They show the electrocution was only attributed as a possible cause of Mr Newman's cluster headaches. A possible cause does not satisfy the test of the balance of probabilities.
I accept that Mr Newman has been and continues to be troubled by cluster headaches and these have had a detrimental impact on his wellbeing. However, for the reasons given, I am unable to be satisfied on the balance of probabilities that the cluster headaches have arisen out of his employment and that his employment was a significant contributing factor to them.
Orders
1. The appeal is dismissed.
2. The decision of the Regulator is confirmed.
3. The Appellant is to pay the Regulator's costs of and incidental to the appeal. Failing agreement, the Regulator is granted liberty to apply.
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