Northern Iron and Brass Foundry Pty Ltd v Simon Blackwood
[2016] QIRC 41
•8 April 2016
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Northern Iron and Brass Foundry Pty Ltd v Simon Blackwood [2016] QIRC 041 |
PARTIES: | Northern Iron and Brass Foundry Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2014/352 |
PROCEEDING: | Appeal against decision of the Workers' Compensation Regulator |
DELIVERED ON: | 8 April 2016 |
HEARING DATES: HEARD AT: | 27, 28, 29, 30 April and 1 May 2015 Innisfail |
MEMBER: | Industrial Commissioner Neate |
ORDERS: | 1. The Appeal is dismissed. 2. The decision of the Respondent is confirmed. 3. The Appellant is to pay the Respondent's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - appeal by employer - appellant bears onus of proof - whether worker suffered an "injury" - pre-existing degenerative cervical condition - whether injury arose out of, or in the course of, employment - whether employment was a significant contributing factor to the injury |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 s 32 Carman v Q-COMP (2007) 186 QGIG 512 Chattin v WorkCover Queensland (1999) 161 QGIG 531 Cooper (as the legal representative of the late Leslie Cooper) v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 38 EMI (Australia) Limited v Bes (1970) 44 WCR 114 Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48 Newman v Blackwood [2015] ICQ 014 Nilsson v Q-Comp (2008) 189 QGIG 523 Obstoj v Van de Loos (Unreported, Supreme Court of Queensland, 16 April 1987) QANTAS Airways Limited v Q-COMP and Blanch [2009] QIC 20 Q-COMP v Green (2008) 198 QGIG 747 |
| APPEARANCES: | Mr A. McLean Williams, counsel instructed by Human A.S.S.E.T Solutions |
Decision
Background to proceedings
Scott Geoffrey Brown was employed by Northern Iron and Brass Foundry Pty Ltd ("the Appellant") at its foundry in Innisfail. Mr Brown claims that he was injured at work on 8 February 2014. He made an Application for Compensation on 16 May 2014 for "upper back, disc displacement, prolapse, hernia" which occurred at work. In its decision dated 11 June 2014, WorkCover Queensland rejected the application.
Mr Brown applied to the Workers' Compensation Regulator ("the Respondent") for a review of that decision. In its decision made on 4 November 2014, and sent to Mr Brown in a letter dated 17 November 2014, the Respondent set aside the decision of WorkCover Queensland and substituted a decision to accept the Application for Compensation.
The Appellant has appealed to the Queensland Industrial Relations Commission ("the Commission") from the Respondent's decision. The appeal is made under the Workers' Compensation and Rehabilitation Act 2003 ("the Act") and asks the Commission to order that the decision of the Respondent be set aside, thus reinstating the original decision by WorkCover Queensland.
The grounds of appeal were, in essence, that:
(a)there was no "event" as described in the Act;
(b)there was no "injury" within the meaning of s 32 of the Act; and
(c)in the alternative, to the extent that Mr Brown sustained a personal injury (which is not admitted), he sustained such injury other than in the course of his employment.
Nature and conduct of the appeal
The evidence in these proceedings must be assessed, and the appeal must be decided, by reference to the definition of "injury" in the Act, and the law governing appeals of this type.
Definition of "injury": At the relevant time, s 32 of the Act provided:
"32 Meaning of injury
(1) 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.
…
(2) Injury includes the following -
…
(b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation -
(i) a personal injury;
(ii) a disease;
(iii) a medical condition if the condition becomes a personal injury or disease because of the aggravation; …"
Nature of the hearing and onus of proof: The hearing of the appeal was conducted as a hearing de novo.
On the current state of the authorities it is clear that in cases such as this, where the employer is the appellant and the decision appealed against is a decision to accept the claim for compensation, the employer bears the onus of proving on the balance of probabilities that the claim is not one for acceptance.[1] In some cases it would fall to the employer appellant to prove that:
[1] See State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447, and the more recent decisions in State of Queensland (Department of Communities Disability Services) AND Q-COMP and Saskia Germaine Bettels (WC/2011/247) - Decision < State of Queensland AND Q-COMP and Mrs B (C/2013/2) - Decision < Myer Holdings Ltd AND Q-COMP (WC/2013/118) - Decision < Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301.
(a) the person claiming compensation was not a "worker" within the meaning of the Act at the relevant time; or
(b) the person claiming compensation did not sustain an "injury" within the meaning of the act at the relevant time; or
(c) if they did sustain an injury, the injury either did not arise out of or in the course of the person's employment or the injury was one to which employment was not a significant contributing factor.
In this case, the Appellant concedes that:
(a)Mr Brown qualifies as a "worker" as defined by s 11 of the Act; and
(b)Mr Brown's neck condition (namely an osteophytic complex with associated disc bulge at the C6/C7 level in his cervical spine) might, if it arose out of or in the course of his employment in circumstances where that employment was also a significant contributing factor, qualify as an "injury" for the purposes of s 32(1) of the Act.
However, the Appellant contends that Mr Brown's condition did not arise out of, or in the course of, his employment and his employment is not a significant contributing factor to that condition. In essence, the Appellant contends that Mr Brown's condition is unrelated to his employment. It is a degenerative spinal condition where the cervical disc has prolapsed as a consequence of ordinary neck movements. For his claim for compensation to be accepted, it is not enough that Mr Brown's injury occurred at work. His employment needs to be more than something that is just part of the backdrop.[2]
[2] WorkCover Queensland v BHP (Qld) Workers' Compensation Unit [2002] QIC 27.
Because the Appellant bears the onus of proof, the Appellant can only succeed in this appeal if it satisfies the Commission on the balance of probabilities that:
(a) the event at the foundry did not occur on 8 February 2014;
(b) if such an event occurred, it was not a significant contributing factor to the neck condition (including the disc prolapse at C6-C7) suffered by Mr Brown.
Factual context for resolving the appeal
In order to understand the reasons for the issue in this case, and the basis on which the issue could be resolved, it is appropriate to summarise relevant evidence about:
(a) the type of work undertaken at the foundry;
(b) the usual procedures to be followed at the foundry in relation to injuries suffered by workers;
(c) events, conversations and the preparation of various documents in relation to the alleged workplace event in the chronological sequence in which they occurred; and
(d) boxing and boxing training undertaken by Mr Brown before and after the alleged workplace event.
Operations at the foundry
The Appellant operates a foundry which manufactures several types of steel pipes. As part of its operations, moulds are prepared in sections of the foundry, including the section known as BQ5. In essence, two heavy metal moulding boxes (known as the top box and the bottom box) are prepared on separate pieces of machinery at about waist height. Each moulding box is filled with dense green sand, and a shape is impressed into each container of sand. The bottom box is moved along rollers and then transferred (using an overhead crane) by lowering it from that piece of machinery onto a conveyor line comprising a series of rollers and narrow plates fixed to the floor of the foundry. The bottom box is moved by a worker along the rollers to a position between the two machines. The core is lifted from a nearby table by an overhead crane (which operates only up and down) and is guided by a worker toward the bottom box on the conveyor line. The core is lowered, using the overhead crane, into the cavity in the green sand. After the bottom box and core are adjusted by the worker (for example, by trimming or adding sand when needed), the top box is fitted to the bottom box. The two boxes are locked together by heavy metal hooks that are hammered into position, and the unit is moved by hand along the conveyor to another area where it is stored for transfer to the area where the molten metal is inserted and the pipe fitting is made.
The manager of the foundry is Joseph Vecchio. He has worked there for more than 27 years and commenced as manager in January 2014. Two people, including Garry Chioatto, are second-in-command to Mr Vecchio. Mr Chioatto is the managing superintendent. He manages the daily operations of the manufacturing side of the plant. In particular, he manages the three moulding lines (QCT, BQ5 and Floor 1). Salvo Fichera has been the workplace health and safety officer since April 2012. He reports directly to Mr Vecchio.
Mr Brown worked on the moulding lines. Mr Vecchio said that, although Mr Brown had not finished his training as a qualified moulder, his skills were of such a high standard that he was paid as a tradesman.
Reporting and treatment of injuries of workers at the foundry
Oral evidence about the Appellant's practices for reporting injuries and dealing with injured workers was given by Mr Vecchio, Mr Chioatto and Mr Fichera.
For the purpose of this appeal, it is sufficient to note that if a worker has an injury, the worker should inform their supervisor, or the workplace health and safety officer (Mr Fichera) if the injury is not minor, or another worker. According to Mr Vecchio, an employee should advise management immediately (preferably within 15 minutes) after an injury occurs, no matter how serious it is.
Oral evidence was given by Mr Brown and others that he undertook some workplace training in relation to, among other things, safety matters and the need to report any injury, even minor injuries. His understanding of that part of the training is reflected in a written document Introduction to Safety: Employee Induction completed and signed by him on 22 August 2011 (Exhibit 18).
Chronological sequence of events in relation to Mr Brown's alleged injury
The foundry usually operates each Saturday. Although it is not compulsory for employees to work each Saturday, many of them do and most of them are paid overtime rates. Those who work on a Saturday are expected to work a minimum of four hours and up to six hours, between 6.00 am until noon. The Appellant's records of Mr Brown's working hours between 1 January and 31 May 2014 (Exhibit 7) show that he:
(a) worked at the foundry on nine of the 12 Saturdays from 25 January 2014 until 12 April 2014; and
(b) on those occasions, he worked for periods of approximately five, five and a half or six hours, usually finishing about noon.
Saturday, 8 February 2014 was no exception. On that morning, Mr Brown punched in at 6.13 am. According to Mr Brown, he started on the QCT moulding line where he did the normal duties of coring up, preparing 40 or 50 moulds. Apparently the quality of Mr Brown's coring up work was very good. He continued with that work until about 9.00 am, when he cleaned up around that line in accordance with standard procedure. After smoko he went to the BQ5 moulding line as he was "basically looking for something to do." By his account, the employees did not generally have strict instructions on a Saturday. He saw that Andrew Ghietti and Gurjinda Singh were working on the BQ5 line. Because it takes three people to operate that line, he "jumped straight in there." Mr Brown had worked on the BQ5 line for five or six months, and this was not the first time he had helped Mr Ghietti by moving a box to the end of the roller.
Mr Ghietti said that Mr Brown could help him because Mr Ghietti was "fairly new to the industry." At that time, Mr Ghietti was making the bottom box (or "drag box") and probably doing most of the coring. Mr Singh was making the top box in another part of that area. Mr Ghietti asked Mr Brown to help him complete his job as he was having trouble making the mould. One of the tasks was to get the core into the mould, and to assist Mr Ghietti make the mould because a section kept breaking. At that stage Mr Brown had no moulds to core up, so he had access to the bottom box to bring it down so that Mr Ghietti could prepare the next box (by scraping off the old green sand[3] along the face of the box so that it sits flush on the pattern). That, Mr Brown suggested, would speed up the process. He estimated that each box would weigh somewhere between 200 kilograms and 250 kilograms when compressed with wet sand.
[3] The green sand used in these mould boxes contains bentonite clay, coal dust, silica sand and water which activates the clay and binds the contents.
As I understand his evidence, Mr Brown:
(a)started at the position where coring up occurs (i.e., at the lower row of rollers on the other side from where Mr Ghietti was working); and
(b)having no moulds to core up, went over to the rollers where Mr Ghietti was preparing bottom boxes.
According to Mr Brown, Mr Ghietti had started the process of compression and had walked off to the left to prepare another empty box. Mr Brown moved the bottom box which Mr Ghietti had prepared along the roller line at approximately chest height from the area in which the mould is compressed to where it could be accessed with a crane, which would assist moving the bottom box to the place where it could be cored up.[4] The box weighed too much to move with one arm. Mr Brown said that he needed to use his bodyweight or some other assistance. He dragged the box with the made mould to the end of the line by grabbing it with his left hand and, because of the weight of the box, grabbing something else (possibly part of the the fixed metal frame that supports the rollers) with his right hand to assist him to get the box to the end of the line. He was facing left and proceeded to pull the box. As he started to get the weight moving, he felt "a pain around - sort of - I could say the shoulder, but very close to the neck." That was the first such box he moved on the BQ5 line that morning. He continued to work and "progressively, the muscle tightened." He was "unsure of what was going on," but knew he was "in a lot of pain." Mr Brown thinks he only got one more box done before the "tightness of the muscle progressed rapidly, and the pain also."
[4] That process involves the crane jib being attached to the bottom box and lifting it, so that a worker can manoeuvre the box for up to a couple of metres and lower it onto a piece of plywood at the end of another lower row of rollers.
Mr Brown recalled telling Mr Ghietti that he had done something to his neck, was in a lot of pain, and did not think he could continue. He also recalled Mr Ghietti saying that they only had two jobs left, and after some banter asking Mr Brown to "just push through." Mr Brown did not do any major lifting or pushing after the conversation. He told Mr Ghietti that he was sorry but he could not continue. It should be noted that the foundry is a noisy place and workers wear hearing protection. In those circumstances, according to Mr Brown, "it's not like you can have a full-blown conversation."
According to Mr Brown, Mr Ghietti suggested that he see Mr Chioatto, the foundry foreman. Mr Brown said that he spoke to Mr Chioatto twice:
(a) straight after he spoke to Mr Ghietti, when Mr Chioatto delivered a pallet of cores on the forklift, Mr Brown told him that he was feeling "a little bit sore in the neck";
(b) about 20 minutes to half an hour later, Mr Brown walked away from the BQ5 line and found Mr Chioatto, who was on his way to somewhere, near the pattern shop. At about 11.00am, he told Mr Chioatto that there was something wrong with his neck, he did not know what it was, he was in too much pain and could not continue, and that he needed to go home. It was standard procedure to inform someone before leaving the site. Mr Chioatto replied that he hoped it would get better.
Mr Brown then went home. That was an early finish for him.
The Appellant's records of his working hours showed that he punched out at 11.19 am, some five hours after punching in (Exhibit 7).
Mr Brown said that when he went home, he told his wife what had happened, had a shower, took some painkilling medication, lay down and slept.
Three other witnesses gave oral evidence in relation to the work performed by Mr Brown on the morning of 8 February 2014, the alleged incident and whether Mr Brown reported that incident to another worker or manager.
Mr Ghietti is a green sand operator at the foundry. He commenced employment on 1 November 2013, and started on the QTC smaller moulding line. Subsequently he went to BQ5. He said he did not think that performing the jobs on the bottom box was "heavy work," but that "there is manual work" involved. In his view, "once you're well-trained and experienced, if you get the right position" then moving the bottom boxes along the rollers is "quite easy." They are "relatively easy once you know what you're doing."
On the morning of 8 February 2014, Mr Ghietti was preparing boxes on the BQ5 line by inserting cores in the bottom box (also referred to as the drag set up) and then putting on the top box. Initially he was assisted only by Mr Singh, who worked on the top box section. Mr Ghietti realised that he was travelling behind in workload because he had damaged several bottom boxes by breaking the moulds when he was lowering the cores into position. After smoko, at around 10.00 am (but before 10.30am), he saw Mr Brown walking past, and asked him to assist in putting cores into the mould. The main purpose of asking Mr Brown to assist by putting in the cores was that Mr Ghietti could concentrate on making the moulds and getting his numbers up so that he could meet his quota for that day. Mr Ghietti asked Mr Brown (rather than other people who were walking past) to assist because he was a skilled tradesmen who knew what needed to be done.
Mr Brown agreed and went to where Mr Ghietti was having trouble putting the strappings on the core. He showed Mr Ghietti the best way of doing it.
Mr Ghietti went back to making up the boxes at the drag. Mr Brown stood on the other side of the rollers from Mr Ghietti where he was strapping up the cores. Mr Ghietti thought there was at least one box made up. After Mr Ghietti made up two or three boxes, he "looked over to see [Mr Brown] putting the boxes down" in the location where Mr Brown was strapping the cores. Mr Brown said to him "Look, Andrew, I'm feeling a bit sore." He indicated the area at the top of his left shoulder. Mr Ghietti replied "Well, how are you going? Can you push through?" After a little bit of banter, Mr Ghietti went back to making boxes.
Mr Ghietti could not recall Mr Brown coming from the other side of the rollers to where Mr Ghietti was working. Nor could he recall Mr Brown pulling a box from the compactor along the rollers, but said that Mr Brown had "cored up" one, two or three boxes. Mr Ghietti also gave evidence about the general practice that when a third person comes over to assist, the corer will help on both sections, that is, they will help move a box on the drag machine if that is necessary so that they can do coring work.
Close to 11.00 am, Mr Brown called out to Mr Ghietti. Mr Ghietti turned, and Mr Brown said "I can't do this anymore". Mr Ghietti asked him to confirm that he was not "pulling a dodgy to go home early," and Mr Brown replied that he was not. He was sore. When Mr Brown told him that he was "pulling up sore," Mr Ghietti did not know how he hurt himself, nor did he witness him do so.
Mr Ghietti referred to the general noise in the foundry. He wears ear plugs and ear muffs. If a person has his attention and he is looking at them, he will remove earmuffs ("if I have to") and stop the machine. He can hear them, especially if they raise their voice.
Mr Ghietti confirmed that the Appellant has a policy that if its employees injure themselves or have any issue regarding their health or safety, they "need to report it as soon as possible or as practical" to their supervisor. Mr Ghietti told Mr Brown to "go and see Garry. Make sure you let Garry know you're going." Mr Ghietti did not see Mr Brown speak to Garry Chioatto. Rather, according to Mr Ghietti, "Garry was not in our - in our vicinity where I could see him." Having told Mr Brown to make sure that he let Mr Chioatto know that he was leaving, Mr Ghietta "did not see where Garry was or if he went and spoke to Garry."
Mr Chioatto oversees the operation of all three moulding lines, each of which has a supervisor. There are about 50 people in his department. According to Mr Chioatto, he saw Mr Brown at a pre-start or tool box meeting on 8 February 2014. He recalled that Mr Ghietti, Mr Singh and Mr Brown were working on the BQ5 that morning. He would have seen Mr Brown walking around a few times that morning, and "everything was going fine." He said that Mr Brown did not tell him he was in pain or that he was going home early. During a walk through the foundry that morning, Mr Chioatto was informed by Mr Ghietti and Mr Singh that Mr Brown had gone home early, but not the reason why. Although it was not unusual for people to go home after four or five hours on Saturday, workers usually advise him beforehand how many hours they will work. He can then plan to ensure that they prepare an adequate number of moulds.
In a signed statement dated 19 May 2014, Mr Chioatto replied to Mr Brown advising Mr Fichera that he reported an injury to Mr Chioatto on 8 February 2014. He wrote:
"This is totally incorrect. Scott made no mention of any injury of any nature on this day. It is strict company policy that all injuries, incidents and general employee health issues are reported to the site EH&S coordinator (Salvo Fichera) to be documented and investigated." (Exhibit 3)
Mr Fichera worked at the foundry on 8 February 2014, as he did regularly on a Saturday because of the work load. As part of his duties as a workplace health and safety officer, he keeps "clear and up-to-date diary records" in case there is later an aggravation. He said that he did not become aware on 8 February 2014 that Mr Brown contended that he suffered an injury that day.
In a signed statement dated 19 April 2014, Mr Fichera wrote:
"I keep very clear and up to date diary records of all incidents and injuries that are reported. Garry [Chioatto] or Colin [Lyons] made no mention of any injury that Scott obtained on that day." (Exhibit 5)
Mr Brown visits Innisfail Hospital
According to Mr Brown, he woke up the next morning, 9 February 2014, "completely seized." By his account, all the muscle around his neck and out to the left shoulder and radiating down his back was "completely tight" and it felt like he had a knife stuck in his back. His wife helped him out of bed and drove him to the Innisfail Hospital.
Triage nurse: According to Mr Brown he went to the counter and when a nurse came at 10.05 am he told her what happened. His recollection was consistent with her written record.
The triage report, prepared soon after he arrived, includes the following description of his presenting problem:
"Working at foundry yesterday some lifting felt muscle spam (sic - spasm) left shoulder blade and left side of neck, today painful to move neck." (Exhibit 28)
The nursing assessment records that Mr Brown:
(a) took two Nurofen on 8 February at noon but had taken no analgesia since;
(b) was self-guarding his left side chest.
Mr Brown was listed as a Category 3 patient (which meant, in effect, that he should be treated within an hour of arrival). He was discharged at 11.00 am, after seeing Dr Aaron Frazer. There was evidence that Dr Frazer had the triage notes at the time of the consultation.
Dr Frazer: Mr Brown gave evidence that, about an hour after speaking with the nurse, he met with a doctor. He told the doctor that he went to work the previous day "fine" then began to feel pain, ceased work, went home, had a shower and woke up "completely seized." It was a fairly short consultation but the doctor said he thought it was a sprained trapezium and gave Mr Brown some Valium and one week off work. Mr Brown asked him whether he could return to normal duties after that week. The doctor said that he could. Mr Brown then asked him about "leisurely duties" and the doctor asked what he meant. Mr Brown told him that he did boxing training and the doctor said that Mr Brown would be fine after one week.
According to Mr Brown's statutory declaration dated 10 September 2014, he did not lodge a WorkCover claim because the doctor told him that the injury was minor (Exhibit 19, para 20).
Dr Frazer gave evidence that he had no independent recollection of Mr Brown. His handwritten notes record that the consultation occurred at 10.50 am. Although Dr Frazer could not recall the length of the consultation, he thought it was probably about 10 minutes. That is consistent with the triage report showing that Mr Brown left Innisfail Hospital at 11.00 am. Dr Frazer could not recall when he made his notes of the consultation, but said that he usually made such notes during a consultation or possibly within five minutes afterwards.
Dr Frazer's record of the consultation was brief and in abbreviated terms (Exhibit 30). He said that he would have looked at the triage report as part of taking the patient's history, but he did not clarify the mechanism of injury in those notes. Mr Brown was the source of information for the brief but relevant history that he took. Those notes included "Boxing Training ++." Dr Frazer explained that his notes were to the following effect:
(a) Mr Brown was engaged in boxing training to excess (and Dr Frazer recalled Mr Brown stating that the training involved a punching bag);
(b) Mr Brown had experienced an increase in pain in his left shoulder that was exacerbated by neck movements, in other words it was sore when he moved his neck;
(c) Mr Brown had no other injuries, was fit and well.
It should also be noted that Mr Brown was 28 years old at that time.
Dr Frazer diagnosed that Mr Brown had a sprained trapezius, a large triangular muscle on the upper back connected to the base of the neck and scapula. He also said that diagnosis was consistent with the mechanism of injury described by Mr Brown of pulling a heavy moulding box along rollers (although Mr Brown did not disclose that history to Dr Frazer). Dr Frazer provided a medical certificate of the type used for a person who is injured outside work and requires time off work. That certificate stated that Mr Brown was suffering from an unspecified "Injury" and would be unfit for duty up to and including 14 February 2014 (Exhibit 30). Dr Frazer treated it as a soft tissue injury with ice packs and rest (not aggravating it by heavy working involving the shoulder, and stopping boxing until the injury got better), and some simple analgesia.
Dr Frazer also gave oral evidence to the effect that:
(a) Mr Brown said nothing to him about his employment;
(b) if Mr Brown had mentioned employment, Dr Frazer would have noted that and completed a WorkCover certificate;
(c) Mr Brown did not disclose to him that he had been pulling a box along rollers at chest height at about 10.00 am on 8 February 2014;
(d) if Mr Brown had mentioned that action, Dr Frazer would have recorded it;
(e) he did not recall Mr Brown saying that he had hurt his neck at work;
(f) he could not recall Mr Brown asking when he could return to normal duties or to boxing training.
The most contentious part of Dr Frazer's evidence is his reference to boxing training. In response to the note "Boxing Training ++," Mr Brown gave the following evidence:
"I never said that I'd hurt myself at training. I directly said that I hurt myself at work. I don't know, maybe if that note was taken on the day, or it was maybe just his version. The only time I mentioned boxing was if or if I could not return to it after returning to full duties at work."
When asked in cross-examination whether the only mention made a boxing during that consultation was when Mr Brown asked when he could return to boxing training, Dr Frazer said:
"No. The - referring back to my notes, really, there was obviously a major component of discussion around that for me to have documented that as the cause of his injury. So for me to have documented that in that way it must have been a fairly prompt response to my questioning him about what's happened with his shoulder and what's caused it."
Mr Brown contacts his employer
Soon after 7.00 am on Monday 10 February 2014, Nicole Rees, production planner at the foundry, took a telephone call from Mr Brown who indicated that he was not coming to work that day. In accordance with company practice developed by Mr Vecchio, Ms Rees called up four standard questions on her computer. She asked these questions and entered Mr Brown's answers straight away as follows:
"1. Reason for being absent? Torn muscle in back
2. If Sick - will a certificate be provided on return? Yes
3. Is the illness work related? No
4. When do they expect to return to work? Monday 17th of Feb." (Exhibit 2)
Mr Vecchio gave evidence that the four questions were developed on his instructions some years ago to ensure that if workers were injured at work their injuries would be investigated immediately. Accordingly:
(a)if the answer to the question "Is the illness work related?" is "Yes," the foundry would attempt to contact the worker and find out how they were injured;
(b)if the answer to the question "Is the illness work related?" is "No," the foundry would not do anything. It asks the worker to provide a medical certificate when they return to work. Mr Brown provided a medical certificate on his return to work.
At 7.14 am that day, Ms Rees sent Mr Brown's responses to the four questions by email to five people, including Mr Vecchio and Mr Fichera. Tracking information recorded on the email shows that it was read immediately by Mr Vecchio and at 7.57 am by Mr Fichera.
There is no dispute that Mr Brown instructed Ms Rees to record "No" in response to question 3. However, according to Mr Brown, he answered question 3 by saying "It is work related. However, can you put it down as No and I'll speak to Joe [i.e., Mr Vecchio] when I return to work." He explained that he gave the answer because of his experience following his lower back injury in 2013. By Mr Brown's account, he had been taken to a doctor some six hours after injuring his back, and he was told that the employer could not afford lost time injuries. Subsequently, during his period of recovery at home, others from the foundry[5] would come to his home in a work vehicle. Mr Vecchio was the person who decided to send people to Mr Brown's home. It would take him about 10 to 15 minutes to be seated in the car. They would take him to the company where he would finger scan in. They would then take him home immediately. Mr Brown explained that the reason he told Ms Rees to record "No" was "because I was in too much pain to have them coming around hassling me. There was no way I could get in the vehicle."
[5] Mr Fichera and Mr Vecchio.
Mr Brown expressed his rationale concisely in his statutory declaration. He said to put "No" because "I knew my employer would want to avoid a time lost injury claim and I was concerned about my employment" (Exhibit 9 para 21).
Ms Rees gave oral evidence that she recalled the telephone conversation with Mr Brown. It was put to her in cross-examination that Mr Brown said in response to Question 3, "Put "No" and I'll talk to Joe about it." After a long pause she said "That was never mentioned … it was a no answer, a simple no answer." She added that, had Mr Brown said that, she would have gone and spoken to Mr Vecchio or put the call through to Mr Vecchio straight away.
Mr Brown agreed that he was given lifts to and from work in 2013 when he was on light duties as part of a staggered return to work arrangement, with progressively increased numbers of hours. However, he insisted that Mr Fichera had come to collect him the day after the doctor had prescribed four weeks of bed rest.
Mr Chioatto agreed that his company was proud of having a very low score for time lost for injury. He was aware that in 2013, when Mr Brown had his lower back injury and was off work on workers' compensation, Mr Brown was brought into the factory to clock on and then taken home without doing any work. Mr Chioatto said that was Iplex policy.
Mr Fichera also gave evidence that he, and sometimes Mr Vecchio, picked up Mr Brown at his house and took into work, got him to clock in, and then took him home again despite Mr Brown being on workers' compensation and having a certificate to be off duty. He explained that "it's basically to do with our statistics at work," i.e. the lost time injury statistics. In re-examination, however, he said that practice was only followed in relation to workers who are subject to suitable duties or a graduated return to work, and never happens in the case of workers who have a certificate says they are fully unfit for duties.
Mr Vecchio denied ever picking up Mr Brown when he was off work on workers' compensation in 2013, taking him into work, clocking him on and taking him home. Mr Vecchio said he was aware of Mr Fichera doing so.
Mr Vecchio described the company policy as follows:
(a)if a person is on rehabilitation, the company tries to get him into the rehabilitation program for some period each day (e.g., for a few minutes or an hour) and builds up from there, so that the worker is kept in touch with the workplace; and
(b)if the worker has a certificate stating that they are totally incapacitated, "they're off work. That's the end of the story."
He agreed that the Appellant has a fairly low tolerance for time lost due to injuries, but said "if it's unavoidable, it's unavoidable." He said that the policy of bringing workers to the foundry, clocking them on and taking them home, is to help them get into rehabilitation rather than to avoid the ramifications of time lost injuries.
Mr Brown attends the physiotherapist for the first time
Mr Brown arranged an appointment with a physiotherapist to assist with his sprained trapezium. At about 8.30 am on 10 February 2014, Mr Brown attended on and was treated by Ali Elmohamed, a physiotherapist who had treated Mr Brown in 2013 for an unrelated lower back condition.
Evidence in relation to this consultation was admitted over the objection of the Appellant. In its final submission, the Appellant contended that no weight should be attached to any of Mr Elmohamed's evidence, and noted that:
(a)Mr Elmohamed gave evidence by phone - rather than in person so that his credit could be tested;
(b)two critical pages of his treatment records were apparently inadvertently destroyed at the "11th hour" in what can only be described as unusual circumstances; and
(c)the physiotherapy notes for 10 February 2014 record Dr Flynn as Mr Brown's treating/referring doctor even though, at that time, Dr Flynn was not treating Mr Brown.
However, as the Respondent submits, the circumstances of the late discovery of Mr Elmohamed's records was explained during the hearing. He was requested to give evidence at short notice and did so by telephone. He explained the circumstances in which he provided copies of pages rather than originals, and he also produced appointment diaries and invoices which were consistent with consultations on the relevant day and other information in the clinical record.
As will become clear later in these reasons, it is also apparent from the Innisfail Medical Centre records that Dr Flynn had treated Mr Brown since June 2013. Mr Brown initially saw Dr Jay at the same practice in relation to his neck injury because Dr Jay was engaged by the Appellant. When Mr Brown chose his own treating doctor, he chose Dr Flynn as he had done in the past.
Accordingly, it is appropriate to consider this and give relevant weight to the evidence about Mr Brown's consultation with Mr Elmohamed.
Mr Brown said that he told Mr Elmohamed that he had hurt himself at work and described the symptoms. The physiotherapist assessed him.
Mr Elmohamed's clinical notes of that session (Exhibit 12) included information obtained from Mr Brown. Those notes, with abbreviated words explained by Mr Elmohamed at the hearing, record:
Past (history) Nil
Current 08.02.14 hurt left scapula plus cervical spine region moving a box at work. Pain increased over time and within the next hour or two, pain became too severe to continue work. Pain was severe and cervical spine very stiff to move. Felt spasms in the neck and shoulder blade region. By approximately 11.30 am went home. Does not want to submit a WorkCover claim at this point. Moved the box with left upper limb moving/pulling towards the body. Pain was sudden, knew injured something.
Attended Innisfail Hospital on 9 February. Diagnosed muscular strain, left shoulder blade. Had one week off work. Tramadol and Valium. Valium was effective +++ for the pain plus spasms. (T2:67-68)
Mr Elmohamed had, at best, a vague recollection of the consultation. By reference to his records, Mr Elmohamed described Mr Brown's condition as "pretty severe." There were restrictions in Mr Brown's shoulder and significant restrictions in the neck. It was an acute condition in the inflammatory stage. Mr Brown had medication and needed to rest. Mr Elmohamed wanted to address both the neck and shoulder, and give them time to settle before considering options.
Mr Elmohamed was aware that Mr Brown may have had some involvement in boxing at the time of his treatment in 2013. His notes at that time record by reference to sports/hobbies "Boxing" and "Always active" (Exhibit 12, page 7). He did not recall Mr Brown making any mention of boxing at the consultation on 10 February 2014, and his notes do not record any such reference. In cross-examination, Mr Elmohamed agreed that the references to fractures in the past and deformity in the right hand marked on a diagram in his records for that day, could be consistent with participating in boxing.
The treatment provided by Mr Elmohamed on 10 February 2014 comprised ice treatment for the neck and shoulder, avoiding aggravating factors, a home exercise program targeted to specific muscles, pulsed ultrasound and rest.
Mr Brown returns to work
Mr Brown returned to work on Monday, 17 February 2014. The Appellant's work records show that Mr Brown punched in at 6.59 am. Mr Brown provided a medical certificate consistently with what he had told Ms Rees on 10 February 2014. Mr Brown punched out at 3.31 pm that day.
According to Mr Brown, he was "still quite stiff and sore" that day. He was designated to work at the QCT moulding line and, following the safety toolbox talk, he spoke to his supervisor, Colin Lyons. Mr Brown told Mr Lyons that he hurt his neck on BQ5 on the Saturday a week earlier, and that he was "still very sore and tight in the neck." Mr Lyons phoned Mr Fichera, who came to see Mr Brown. Mr Fichera asked what Mr Brown thought he could do, and Mr Brown stated that he was sore and stiff. Mr Fichera told Mr Lyons that Mr Brown could work on that line, but Mr Lyons should make sure Mr Brown did not lift anything too heavy.
Colin Lyons is the green sand coordinator at the foundry and is in charge of two moulding lines including the BQ5. He was not working at the foundry on 8 February 2014. Mr Lyons said that Mr Brown did not, at any time around 8 February 2014, tell him that he had sustained an injury or was sore because of work. Mr Lyons denied that Mr Brown told him on 17 February that he had hurt himself on the BQ5 moulding lines the previous Saturday. The first he became aware that Mr Brown had a neck injury was "probably a couple of months after that." Mr Brown told him that he had sustained an injury at work much later, probably about two months or more after that. Mr Lyons could not recall the context in which Mr Brown told him he was injured at work. Rather, "he just said he was sore one day."
As noted earlier, Mr Fichera received and read the email from Ms Rees on Monday, 10 February 2014. However, Mr Fichera gave evidence that he did not speak with Mr Brown during the week he was away from work (i.e., the week of 10 February 2014) and that he spoke to Mr Brown subsequently, possibly the following week. He recalled Mr Brown going back on his line when he returned to work.
Mr Fichera gave different accounts about when he became aware that Mr Brown was alleging that he had been off work because of a work injury or incident:
(a) he said that he did not know about the alleged incident on 8 February 2014 until 22 April 2014, as recorded in the Incident/Injury Report (Exhibit 4) and his own electronic diary;
(b) however, in evidence-in-chief he suggested it would have been a week or two after the alleged incident on 8 February 2014, or a another one or two weeks after Mr Brown returned to work on 17 February 2014;
(c) in cross-examination, Mr Fichera said that a conversation with Mr Brown could have occurred in the week of 17 February 2014 when Mr Brown returned to work. Although he did not recall Mr Brown telling him on 17 February 2014 that he wanted to leave early to attend a physiotherapist, Mr Fichera did recall him speaking about going for a massage.
As his evidence unfolded, Mr Fichera seemed to accept that Mr Brown spoke to him about his work injury on his return to work, and initially Mr Fichera managed that by advising him to remain in his normal duties but not to lift anything heavy. He said that Mr Brown did not give him the "implication that he was serious enough or bad enough until a little bit later on." Accordingly, Mr Fichera seemed to accept that, based on what Mr Brown may have told him, he did not feel that an incident report was required because he did not think the injury was serious enough to report.
However, in re-examination, Mr Fichera said that he did not have any awareness on 17 February that the injury was related to work. He suggested that it became clear to him after, perhaps, the first or second visit to Dr Jay, that Mr Brown was connecting his neck injury at work. When he was referred to the Incident/Injury Report that says the injury was reported on 22 April 2014, Mr Fichera said:
"Look, Scott was more or less pushing the issue that it happened at work. Okay. I'd had a conversation with Dr Jay at the time who was telling me otherwise and I was two-minded. I think you might recall I said with the incident report I was having trouble trying to work out exactly how this happened. So, consequently, maybe that's why there's a bit of a delay there as to when I've got the 19th down versus when it was first raised. But also it was just a - it was just hazy to me as to is it work-related? Is it not? When did it happen? Did it happen here? Did it happened there? It was all a bit - it was still a little bit hazy, I suppose, if that's a word I can use." (T1: 70)
Mr Vecchio gave evidence that he did not speak to Mr Brown in the week from 10 to 17 February 2014, and did not remember talking to Mr Brown about his absence during that week in the week commencing 17 February 2014.
Mr Ghietti gave evidence that he became aware after Mr Brown returned from his week's leave that he said he had hurt himself at work. Mr Ghietti could not be specific about how he became aware of that assertion. Mr Brown could have told him directly or another colleague could have mentioned it. Although "everyone there" knew that Mr Brown was off work, it is not clear who knew why he was away or when Mr Ghietti or others became aware of Mr Brown's claim. It was not until September 2014 when Mr Ghietti was first asked whether he knew anything about the incident.
Mr Brown attends the physiotherapist again and keeps working
On 17 February 2014, Mr Brown went to his physiotherapist where he had an appointment scheduled for 3.00 pm. Mr Elmohamed recalled that Mr Brown was at least half an hour late for his appointment, but did not know the reason why. The consultation was shorter than scheduled. No further history was provided in relation to the mechanism of injury. Mr Elmohamed's notes referred to mild paraesthesiae in Mr Brown's left hand, a condition that he did not record on 10 February 2014.
Mr Brown gave evidence that he continued to work full time doing normal duties. He was put on a standard rotation with other employees who were on full duties. Mr Brown confirmed that before February 2014 he had not had any problems with his neck or his left hand. Over subsequent months (February to April), the pain in his neck and shoulder did not get any better. It would "flare up and down, but it never ever got better."
Mr Brown said that he communicated with Mr Fichera and Mr Lyons about how he was going and that he was still experiencing pain. He continued to take the Valium provided by the hospital doctor to relax the muscle so that he could sleep. But he did not have a medical certificate during this period and was not subject to any relevant medical restrictions.
On 17 April 2014, the Thursday before Easter, after a "big day of coring up," the muscle was very tight. Mr Brown went home, and while he was having a shower he felt an abnormal sensation on his left hand when the warm water contacted his hand.
Mr Lyons did not recall that on Thursday 17 April 2014, Mr Brown commented to him that he was getting very sore and tight in his neck towards the end of the day.
Mr Brown visits the Emergency Department of Innisfail Hospital
According to Mr Brown's statutory declaration, he woke on Friday 18 April 2014 in significant pain. That pain was significantly worse on Sunday, 20 April 2014 (Exhibit 19, paras 25-26). After 7.30am, Mr Brown arrived at the Emergency Department of Innisfail Hospital. He was assessed by triage registered nurse, Yvonne Clark. She prepared a typed report of Mr Brown's injury as he was talking, taking his statement at face value. That part of the report described the presenting problem as:
"Injury - blunt injury
Painful (L) [i.e., Left] shoulder and neck stiffness after "boxing" exercise yesterday.
Taken (O) [i.e., oral] Panadol yesterday - nil today." (Exhibit 1)
The nursing assessment recorded on that document in hand writing by Ms Clark states that Panadol and Bruffen were offered at 8.10 am and that at 8.30 am the patient "decided to go home" apparently without further treatment.
Ms Clark also stated that she had not met Mr Brown previously, had no independent recollection of Mr Brown's presentation at the hospital, and had no dealing with the doctor or doctors treating Mr Brown. She explained that "blunt injury" referred to an injury from a blunt force (rather than a projectile or penetrating injury) which could be caused by such things as a fall or knock.
According to Mr Brown, he attempted to do some skipping but, a minute or two into the exercise, he could not do it any more. The next day he went to the hospital to seek some pain relief. Mr Brown accepted that he told the nurse that he had done some form of boxing exercise on Saturday, 19 April 2014, and said the boxing exercise probably referred to the skipping. He would not have been doing push-ups as he did not and could not do push-ups after the injury. He had ceased training juniors before the Easter weekend. [6]
[6] The extent of Mr Brown's boxing training is considered later in these reasons. (see [165] to [172])
Mr Brown reports additional symptoms to his supervisor
Mr Brown gave evidence that on the Tuesday after Easter, 22 April 2014, he told Mr Lyons about his sore neck and the numb sensation on the back of his hand. Mr Lyons contacted Mr Fichera, and Mr Brown told him about the numbness in his left hand, and that his symptoms were not getting any better. Mr Fichera allocated Mr Brown work in different areas.
Mr Lyons recalled that Mr Brown mentioned that his hand was numb and he had trouble moving his neck. He could not remember whether that was on Tuesday, 22 April 2014. Also, he "wouldn't have a clue" as to what caused Mr Brown's neck problem. However, Mr Lyons passed it on to Mr Fichera as the safety coordinator. Mr Lyons said he had no role in finding out what had happened. He simply reported injuries to Mr Fichera.
Mr Fichera gave evidence that he first became aware that Mr Brown alleged that his injury was work-related on 22 April 2014. No one had told him before that date that there had been an incident involving Mr Brown.
Reference was made to Mr Fichera's diary notes to the effect that on 22 April 2014, Mr Brown complained of pain in his shoulder and that it had been there all weekend, and that Mr Brown claimed that he had been doing all the lifting of cores on QCT because the "young fellow is not strong enough."
In cross-examination, however, Mr Fichera not only recalled speaking to Mr Brown on 22 April 2014 on the QCT line but that Mr Brown advised him that his neck pain was getting worse and that he had some numbness in his left hand. Mr Fichera agreed that that was not the first time he knew about this work related injury, and that the neck pain was already there. He said "Scott would have spoke to me about it sooner." Despite that, no incident report had been prepared or commenced. Mr Fichera discussed with Mr Brown where he could be placed so that his neck and arm pain were not causing him so much trouble. They discussed why Mr Brown was doing work with the 200 x 11.25 bends, which was initially what Mr Brown said was causing his pain. Mr Brown said that he was lifting these cores for the young men who were not strong enough to put them in.
Mr Brown recalled that one of the other employees was quite small and the cores were too heavy for him to deal with in order to get good-quality castings. Consequently, Mr Brown had to do more of the coring up to help him out. That was an explanation of why his condition was "getting worse." He did not propose that it was the cause of the injury.
Mr Brown denied first telling people at the foundry on 22 April 2014 that his neck pain was attributable to a work event on 8 February 2014. He reiterated that he informed them of the injury on 17 February 2004.
[100]Over the following week or more, the numbness progressed across the back of Mr Brown's hand from his thumb and index finger to his ring finger and along the top of his forearm to his elbow. He told Mr Fichera that things were getting worse as the numbness had spread. Mr Fichera stated that Mr Brown must be aggravating it on weekends. That statement upset Mr Brown who did not like "being called a liar." On about 28 April 2014, Mr Brown complained to Mr Vecchio about that statement. Mr Vecchio stated that Mr Fichera was not allowed to do that and apologised, saying it would not happen again.
[101]Mr Brown did not have any direct discussion with Mr Vecchio by that stage advising him about the work-related injury. However, to his knowledge, Mr Vecchio was aware of his injury from 8 February 2014. He reasoned that, because Mr Vecchio managed employees and Mr Brown was directly in contact with Mr Fichera immediately after he returned on 17 February and when he returned after the Easter weekend, the safety officer would have been communicating with his manager.
[102]Mr Brown said that, during the conversation when Mr Fichera accused him of aggravating the injury on the weekend, he said that they needed to get him to a doctor as he was concerned about his condition. Mr Fichera made an appointment with Dr Jay for a date a few days later. Records of the Innisfail Medical Centre state that Mr Fichera rang on Monday 28 April 2014 as Mr Brown was complaining of a "sore back". An appointment was booked for 5 May 2014 (Exhibit 10).
[103]Aspects of Mr Brown's evidence were corroborated by Mr Vecchio who said that, on about 22 or 28 April 2014, Mr Brown complained to him about Mr Fichera implying that Mr Brown's injury was boxing related. Mr Vecchio asked Mr Fichera to apologise. Mr Fichera withdrew the comment and stated that he should not have said it. However, Mr Brown said nothing to Mr Vecchio about his injury being connected with work.
[104]Mr Fichera agreed that he said that Mr Brown was involved in boxing on the weekend and that was causing his pain. He acknowledged that he was wrong, and out of place. He was interviewed by Mr Vecchio and apologised to Mr Brown.
Dr Jay's assessment on 5 and 12 May 2014
[105]On 5 May 2014, Mr Brown attended Dr Andrew Jay with Mr Fichera. Mr Brown said that he was not asked if he was happy with that arrangement, but he understood it was standard procedure for the company.
[106]Mr Fichera said that his attendance at the consultation was the usual practice ("We do that all the time. I've been instructed to do that all the time."), although if the worker was not comfortable with him being there he would not go in. On this occasion, "none of that was spoken of." He was part of the consultation which he described as "a three way conversation."
[107]Mr Brown said that he described to Dr Jay where the injury occurred, i.e., that he hurt his neck at work on the BQ5 moulding line on 8 February 2014. Dr Jay asked questions about the symptoms and did not ask "about exactly how it was done. It was fairly vague. He was just concerned about the symptoms." Mr Brown described to Dr Jay the muscle tightness in his neck ("I had pretty much a 100 per cent loss of turning my head to the left") and the pain and numbness in his hand. Dr Jay did not conduct a physical examination but asked about Mr Brown's range of motion. The majority of the conversation was between Mr Fichera and Dr Jay. Mr Brown understood that Dr Jay believed he had a possible prolapsed disc in his neck. Dr Jay prescribed Valium and ordered a CT scan of Mr Brown's neck. There was no restriction on Mr Brown's duties at work.
[108]Dr Jay's written notes for that consultation state:
"Getting pain in base of neck and now tingling in L index finger
No obvious cause
Came with OH and S officer NIBF
No obvious work related trauma
O/E - Neck movements good
SI tenderness over lower cervical bertebrae (sic) and upper thoracic vertebrae
Neuro intact
Suggest continue with normal duties and see CT scan." (Exhibit 10)
Dr Jay requested a CT scan of the lower cervical and upper thoracic spine, and he prescribed Valium tablets.
[109]Dr Jay gave oral evidence that he has a Diploma in Occupational Health and is familiar with the operations of the foundry, including manual handling tasks that workers have to perform. He has been through the plant and has seen all aspects of the process, including the BQ5 moulding line. Dr Jay said that it was not unusual for Mr Fichera to be present at consultations in his role as the occupational health and safety officer from the foundry. Indeed that was the way they had generally been working so that Mr Fichera was able to understand the nature of what he may have to do and so they could discuss options for any modifications to the workplace that might help the individual. He did not ask Mr Brown whether it was okay for Mr Fichera to be present because "that's the standard port of call." He presumed it was consensual. There was no obligation on a patient to have Mr Fichera present and it was normally done on the basis of a mutual understanding and agreement.
[110]According to Dr Jay, there was no mention of an obvious cause of the symptoms and no mention of anything particularly related to work issues. Nor was that necessary. People are brought to him if they are complaining about something (whether work related or not) to see if they need to stop work or to ensure they are doing work that is best for them. Dr Jay said that he did not ask more than whether the symptoms were specifically associated with anything that had happened previously at work. He did not go into any history, and nothing was said specifically about a mechanism of injury.
[111]Dr Jay did not recall the day on which Mr Brown said that the neck pain and tingling had started, and there is no mention of any date in his records. Had Mr Brown mentioned a date (such as 8 February 2014), Dr Jay said that he would have investigated further. Dr Jay did not issue a WorkCover certificate because there was no specific link to any work related issue at that time. In other words, Mr Brown did not describe the mechanism of injury. Had that been mentioned he would have started "digging a bit deeper" and asking questions about what happened. At that time he considered that it was unlikely to be work related.
[112]Dr Jay examined Mr Brown's neck movements to see whether there were any obvious changes, and suggested a CT scan. At the time of the consultation there was no obvious cause of the symptoms. "It was fairly non-specific and fairly ambiguous." Dr Jay could not make a diagnosis, and needed further investigations. At that stage, he thought that Mr Brown might have a pinched nerve. That was why he sent Mr Brown for a CT scan. However, there was no indication of the need to change Mr Brown's normal work, and no suggestion at this stage that he perform any modified duties at work. Dr Jay prescribed some muscle relaxant medication to see whether that would give Mr Brown some relief.
[113]Dr Jay saw Mr Brown on 15 April 2014 on an unrelated issue which had nothing to do with his neck.
[114]That evidence is consistent with a letter from Dr Jay to Mr Fichera dated 30 September 2014 in which Dr Jay wrote:
"As you are aware I saw Scott in your presence on 5th may 2014 after he reported to you that he had a pain in his neck and some tingling in the fingers of his left hand and he was finding it difficult to do his normal work. He did not relate this to any work related event at the time." (Exhibit 9)
[115]Mr Fichera recalled that Mr Brown started saying that his condition was work-related, and that he was feeling sore (with a gradual tightening of the neck muscles) during the natural course of his work. Mr Brown did not identify the precise mechanism at work that might have caused his condition. In cross-examination, Mr Fichera said he remembered Mr Brown talking about his symptoms but did not recall him saying anything to the doctor about exactly where it happened. Mr Fichera observed that it was usual practice to discuss the symptoms with the doctor rather than where the incident took place or how it occurred. "The doctor is there simply for the symptoms and to - for the wellbeing of the patient. It's not for me to discuss [with] the doctor whether I've got issues at work."
[116]On Monday 12 May 2014, Mr Brown visited Dr Jay in the company of Mr Fichera. The CT scan made on 7 May 2014 disclosed some prolapse of the C6-C7 disc and possible irritation of one of the left nerve roots from the C6-C7.
[117]According to Dr Jay, Mr Brown did not explain how work was affecting him by reference to any particular motion or activity. Rather, Mr Brown told him that the spasm in his neck seemed to be getting worse when he did his work. That was not surprising given that his disc had ruptured. Dr Jay discussed the possibility of a different type of work to make it more comfortable for Mr Brown, and to then "see how things would progress." It is possible that the condition could resolve so that the symptoms disappear.
[118]Dr Jay said that he discussed with Mr Fichera a suitable duties plan for Mr Brown, and Mr Fichera prepared a Work Capabilities Check List dated 14 May 2014 which Dr Jay signed (Exhibit 11). At that stage the modifications involved no lifting or twisting and no driving forklifts or operation of vibrating machinery, but Mr Brown was allowed to have limited use of the crane operation. He could do light manual work and assembly work. Dr Jay considered that appropriate because of the nature of the condition with which he was dealing. In his experience, such a condition can settle down whilst the person is doing almost full work duties. That document was subsequently modified by Dr Flynn.
[119]Dr Jay's notes of that consultation state:
"Came for results of CT scan
Numbness spreading to the dorsum of Left hand now
No pain
Good function
Getting some spasm in neck
Work seems to affect him
O/E - Movements good
No loss of function in L arm
CT scan - Disc prolapse 6/7 with irritattion (sic) L nerve root
?? Cause of symptoms
Discussed with Salvo from NIBF
Will place on appropriate job for a few weeks and see." (Exhibit 10)
[120]The reasons for contact on that occasion were listed as cervical - disc disease and nerve entrapment.
[121]Mr Brown recalled that Dr Jay advised that he had a slight prolapse at the C6/C7 and described the nerves directly related to that area. Dr Jay told Mr Brown to return to work on full duties and prescribed Valium.
[122]Mr Fichera acknowledged that the Appellant paid for Mr Brown's consultations with Dr Jay and for him to have massages at Back in Motion, and the reason for doing so was that the Appellant understood that Mr Brown had an injury which was aggravated at work, and Mr Brown was getting sore from what he was doing at work.
[123]Dr Jay stated that he had not seen Mr Brown since the consultation on 12 May 2014. That evidence is consistent with a letter from Dr Jay to Mr Fichera dated 30 September 2014 (Exhibit 9) in which Dr Jay wrote:
"I have not seen him since I gave him the result of the CT scan as he has preferred to see my colleague Dr Mark Flynn."
[124]Mr Brown gave evidence that, because he was "very unhappy with Dr Jay duty of care" towards him, he started seeing Dr Flynn. Mr Brown had seen another doctor at that practice, but that doctor left. Dr Flynn was Mr Brown's next choice. He had first seen Dr Flynn in 2013.
[125]Around this time (and possibly as early as 5 May 2014), Mr Brown started keeping a diary as he was concerned about his health and the conduct of Mr Fichera and Mr Vecchio. The purpose of the diary was to assist Mr Brown to remember events between his employer and him, and to "protect myself against what … seemed to me to be that the company was trying to do." Copies of extracts for dates between 8 February and 17 June 2014 were in evidence (Exhibit 20). It appears that entries for dates in February were made in May. They were not contemporaneous and the weight that might be given to them must be assessed by reference to other evidence.
Consequences of Dr Jay's diagnosis, and Mr Brown's return to work
[126]Between 17 February and 14 May 2014, Mr Brown had no further days off work on sick leave or as a result of an injury. Indeed he worked some overtime during that period. The record of punches for the same period (Exhibit 7) shows that on six of the nine Saturdays Mr Brown was at work, and he worked until noon on each Saturday, other than 29 March when he punched out at 11.04am.
[127]Mr Brown recalled that the next working day after his visit to Dr Jay he rang the foundry and spoke to Mr Fichera. Mr Brown asked whether Mr Fichera could pick him up for work as he was unable to drive because of the medication prescribed by Dr Jay in relation to his neck (i.e, Valium). Mr Fichera replied that, because Dr Jay said his condition was a degenerative one and not work-related, it was not their job to get Mr Brown to work. That was the first occasion when Mr Brown understood there was some doubt about him having a work-related injury. Mr Brown was upset and hung up the telephone. Being "very confused and upset," he phoned Mr Vecchio who also stated that Dr Jay had said it was degeneration and not work-related, so it was not their job to get Mr Brown to work. Mr Brown told him that it was a work injury and that if they were not willing to assist him further in relation to the injury then he would have to go to his own doctor. Mr Brown asked Mr Vecchio what happens if he did not come to work because he could not get there, and Mr Vecchio said that he would take the time out of Mr Brown's sick leave or rostered days off.
[128]Mr Fichera came to Mr Brown's home that afternoon. Mr Brown considered that to be "fairly invasive" as he did not want Mr Fichera at his home considering the way their telephone conversation had ended. Mr Fichera suggested that the approach was from head office rather than him, and offered to take Mr Brown to his own doctor. Mr Fichera also asked if he could accompany Mr Brown, but Mr Brown said no. He explained that he had been to the company doctor with Mr Fichera, but Mr Fichera had not assisted Mr Brown in relation to his work injury. Mr Brown was also unhappy with Dr Jay considering "the severity of the injury, the numbness." Mr Brown also described the prescribed dosage of Valium as "quite a heavy medication."
[129]Mr Brown made an appointment to see Dr Flynn who he had consulted in the past and believed to be a good doctor, one who is "always concerned about your health."
[130]Mr Fichera said that Mr Brown was having trouble even getting out of bed, and was aware that Mr Fichera was going to see Dr Jay. He also recalled Mr Brown ringing him and hanging up on him because Mr Brown was not happy with what Mr Fichera said, i.e. that he had been instructed that they were not to go and pick up Mr Brown. Mr Brown was angry and then rang Mr Vecchio.
[131]Mr Vecchio recalled the telephone call from Mr Brown who, according to Mr Vecchio, wished to be picked up for work by his employer because he could not get his motorcycle helmet onto his head that day. Mr Brown told Mr Vecchio that if they would not pick him up for work he would have no choice but to go to WorkCover because he could not afford to pay for an operation. Mr Vecchio asked how it could be a WorkCover matter as it was not work-related. Mr Brown hung up on him. According to Mr Vecchio, that conversation occurred on 15 May 2014, and he had no other discussions with Mr Brown about the topic. Mr Vecchio denied having any conversation with Mr Brown after his WorkCover claim was rejected.
[132]When he was shown the email from Mr Fichera to him dated 14 May 2014 (Exhibit 6, quoted below), Mr Vecchio agreed that Mr Fichera was raising a query whether Mr Brown's injury was work-related, but the doctor said it was not.
[133]At 11.16 am on 14 May 2014, Mr Fichera sent an email to Mr Vecchio, copied to Lionel Heath, Liz Wilson (the national injury manager) and Wayne Plant (the regional safety officer) (Exhibit 6). He referred to a phone call from Mr Brown that day to say that Mr Brown "could not come to work today due to the pain in his back/neck he was experiencing." Mr Brown stated that he had taken Valium tablets a number of times throughout the night to help with the pain and as a result had not slept much. Mr Fichera had urged Mr Brown to try and come in to work, even if only for a few hours, and Mr Brown agreed. Mr Fichera reported on the steps he took, including visiting Mr Brown at home. Mr Brown told Mr Fichera that the pain in his back was getting worse, and he agreed to Mr Fichera going to the doctor to get a suitable duties plan drawn up.
[134]In that document, Mr Fichera recorded that he spoke with Dr Andrew Jay face-to-face and that he explained the situation to Dr Jay. According to Mr Fichera:
"The Dr replied that he was not about to give us a Work cover certificate, because he did not think this issue was work related.
The Dr said there was not sufficient evidence to support the lodging of a Work cover certificate nor was there enough evidence to support the trauma that Scott was apparently going through.
He said that any of the light duties that were given to him, were more than adequate for the type of injury that Scott has.
The Dr stated that he felt Scott was getting 'Mileage' out of this for an unknown reason and not for his apparent condition.
I have asked the Dr to fill out a Work Capabilities Checklist for me, to which he agreed." (Exhibit 6)
[135]Dr Jay's written notes for that consultation on 14 May 2014 state:
"Discussed with Salvo NIBF
Did not turn up for work today
Claimed very bad pains in neck
Had to take valium x 3 last night due to pain
Has been given light duty
Continue with light duty and see
Light duty plan done
Review 10/6/14." (Exhibit 10)
[136]On 15 May 2014, Mr Brown attended on Dr Flynn, who gave evidence of Mr Brown's account that he had injured his neck at work while manoeuvring a heavy moulding box along rails and that he turned or twisted his neck and felt sudden pain. The consultation notes state:
"Note previous L4-5 injury with some ongoing pain since
8-10 weeks ago Sat am work tightness left shoulder blade severe enough to cease work and present IDH
1 week off own sick leave
similar again at work around 2 weeks ago on a Friday 2 days off again
aware of numbness left index thumb dorsum only
tramadol for pain , continued full duties
poor Range of movement neck stabbing pain with neck movement or arm movement
Last Friday noted progression of numbness across back of hand to 5th metatarsal [sic: metacarpal] dorsum
Monday some alteration of duties
Valium relieves spasms
unable to work yesterday
CT showed C6-7 disc prob" (Exhibit 10)
[137]On 16 May 2014, Dr Flynn signed three versions of a workers' compensation medical certificate on that date. One certificate recorded:
(a) that Mr Brown stated the date of his injury as 8 February 2014;
(b) that Mr Brown stated the cause of injury as "heavy lifting;"
(c) a diagnosis of C6-7 disc prolapse with left C6-7 radiculopathy;
(d) that Mr Brown had no capacity for any type of work from 13 to 16 May 2014; and
(e) that Mr Brown could return to work for suitable duties from 19 to 30 May 2014 (including occasional lifting of weights limited to 2 kg, but no pushing or pulling or operating machinery, and no neck twisting or overhead work) (Exhibit 8).
[138]The two other versions of the workers' compensation medical certificate differed in one of two respects from Exhibit 8. Exhibit 23 listed 7 February 2014 as the date of injury, and Exhibit 22 recorded the stated cause of injury as "manoeuvring moulding box on pinion and placing cores into moulding box." In his oral evidence, Dr Flynn explained that Mr Brown attended him concerning a neck injury which Mr Brown said was work-related. Mr Brown's symptoms included a stabbing pain and tingling in the neck, and numbness across the back of his hand. He told Dr Flynn that he was manoeuvring (not lifting) a heavy moulding box along rails and turned his neck or twisted his neck and felt sudden pain.
[139]As noted above, two of the certificates described the stated cause of injury as "heavy lifting" (Exhibits 8 and 23) and the other records the stated cause of injury as "manoeuvring moulding box on pinion and placing cores into moulding box" (Exhibit 22). Dr Flynn's notes of the consultation on 15 May 2014 do not refer to a mechanism of injury. However, Dr Flynn recalled the mechanism of injury being described to him at the time and refuted a suggestion that no mechanism was given to him by Mr Brown on that date. According to Dr Flynn, Mr Brown pointed out to him subsequently that the certificate referring to "heavy lifting" was not an accurate record of what they had discussed. Dr Flynn agreed, and suggested that the certificate was filled out very quickly at the end of a fairly long process and at a time when he was running behind in the practice. He apologised that there "may have been errors." The later certificate (Exhibit 22) records that Dr Flynn attended to Mr Brown on 26 May 2016.
[140]The Work Capabilities Checklist, was commenced and signed by Dr Jay on 14 May 2014 (Exhibit 11). It lists Dr Flynn as Mr Brown's treating medical practitioner. It was completed on 16 May 2014 and has various entries and amendments next to which Dr Flynn has written his initials. The Checklist describes Mr Brown's condition as "lower cervical disc lesion with possible nerve root compression (L) C7." Consistently with the workers' compensation medical certificate issued by Dr Flynn that day, the Checklist states that Mr Brown was totally unfit for work for four days up to and including 16 May 2014, and was partially fit and capable of performing selected duties with specified limitations up to and including 30 May 2014. He was to be reassessed on 10 June 2014.
[141]Mr Brown said that he thought it was during his consultation with Dr Flynn that he first saw a suitable duties form. Dr Flynn advised him that Dr Jay had not given any restricted or suitable duties. Dr Flynn then amended the document to record what Mr Brown could or could not do (Exhibit 11). He also ordered an MRI and prescribed nerve pain medication, pain relief and anti-inflammatories. The medication assisted in the relief of symptoms and enabled Mr Brown to sleep.
[142]Mr Vecchio said that at 14 May 2014, Mr Brown had a personal injury but the nature of that injury was unclear, as was the means to cure it, and Mr Vecchio thought it was not work-related. During mid-May 2014 he first became aware that Mr Brown contended that his absence from work from 10 February 2014 was the result of a work injury on 8 February 2014. After 15 May 2014, Mr Vecchio received two WorkCover certificates from Dr Flynn, one stating that the incident occurred on 7 February 2014 and the other nominating 8 February 2014 as the relevant date. No one at the factory in a management position had drawn Mr Vecchio's attention to any connection between the injury and work before then. Rather, he had been told by Mr Fichera (who had spoken to Dr Jay) that he did not believe the injury was work-related. If Mr Fichera knew that Mr Brown was saying it was a work-related injury he should have told Mr Vecchio about it as they could investigate the associated incident.
The Incident/Injury Report
[143]On 19 May 2014, Mr Fichera compiled an Incident/Injury Report which recorded the date of incident as 8 February 2014 at 9.30 a.m. and the date when the incident was reported as 22 April 2014 at 10.00 am. The incident was described as follows:
"Operator working on BQ5 moulding machine line. Operator placing 300 x 11 ¼ soc [i.e. socket] bends into mould. Operator using swing 5IB hoist to place cores.
At this point the operator felt a gradual tightening of his L/H neck muscles and also gradual increase of pain.
Operator continued to work until the pain was unbearable. He then ceased work at approx. 10.00-10.30 and reported to his supervisor - G Chioatto. Operator then went home." (Exhibit 4)
[144]In the part of the Report dealing with root causes of the injury, Mr Fichera wrote:
"Operator working off normal duties.
Spasm occurred at work."
[145]In his oral evidence, Mr Fichera explained that the Incident/Injury Report was prepared more than one month after the incident was notified on 22 April 2014 because the incident had to be investigated, and Mr Brown attended Dr Jay ("our foundry doctor") with Mr Fichera on 5 May 2014.
[146]When the Incident/Injury Report was being prepared, Mr Brown had a support person (Mervyn Hader) and Mr Fichera had a support person (Michael Bonaccorso) in attendance.
[147]Mr Fichera said that, at the time he prepared the report, he was "a little bit confused" because:
(a)his electronic diary note stated that the incident occurred while Mr Brown was working on the QCT line; but
(b)when they sat down, Mr Brown mentioned the BQ5 where he was using a crane to pick up the cores, he swung them across, the crane lowered them and Mr Brown placed them into the bottom box.
Mr Fichera said that he obtained the information for his diary from Mr Brown on 22 April 2014 while Mr Brown was working on the QCT line. Mr Brown had told him that the young kids who had started there were not strong enough to move the cores around, so he was doing it for them. While he was helping them, he felt sore, or started to get sore. However, that information was about events on 22 April 2014, not about what happened on 8 February 2014 (see [93] to [99]).
[148]When writing the report, Mr Fichera queried Mr Brown about the location of the incident because Mr Brown had already spoken to him "about a different thing altogether." Mr Fichera recalled that Mr Brown became "a bit anxious at the time when we spoke about this." According to Mr Fichera, that is why there is very little written under the heading Summarise Root Causes. He started to write something but crossed it out because Mr Brown did not agree with it. Mr Fichera "backed right off" and "crossed it all out." He asked Mr Brown to tell him exactly what he wanted him to put down. Mr Brown said "spasm occurred at work," and that is what Mr Fichera wrote. There is no signature from Mr Brown because "he didn't want to write anything." Mr Brown refused to sign the report. Mr Fichera said that Mr Brown was "a little bit vague on exactly how it happened," and the entry on Root Causes was "all he allowed me to write. He didn't want me to write anything else at that time."
(e)the inability to reconcile the uninterested and direct testimony of Dr Frazer about the stated cause of injury on 9 February 2014 with Mr Brown's testimony.
[240]As to the precise circumstances of the event said to have caused the injury, the Appellant relies on the evidence of Mr Ghietti that, sometime after smoko, he requested assistance from Mr Brown who then worked at the rolling table where a moulding box was located. Mr Ghietti was experiencing difficulty lowering cores into the bottom box. Mr Brown demonstrated the best way of strapping the core and Mr Ghietti went back to making boxes on the chest high drag. When Mr Brown called out, Mr Ghietti turned to hear Mr Brown say "I can't do this any more." At that time Mr Brown was standing on the other side of the rollers from Mr Ghietti strapping the cores. Mr Ghietti could not recall Mr Brown helping him on the drag. Mr Ghietti did not see Mr Brown sustain an injury and was told by Mr Brown only that he was "feeling a bit sore."
[241]The Appellant submits that:
(a)while there is room for some intuitive reasoning when determining whether a worker has suffered an injury within the meaning of the Act, regard must still be had for the manner of injury that has been specifically alleged by the worker and, in the process of determining that question of fact, the Commission cannot substitute its own speculation for proper satisfaction on the balance of probabilities;[20]
[20] See Nilsson v Q-Comp (2008) 189 QGIG 523, 526 (Hall P).
(b)the exercise is not one that can be conducted in the teeth of contrary evidence (such as the account now given by Mr Ghietti) that puts Mr Brown at a different place, engaged in a different task (i.e., at the rolling table rather than at the drag);
(c)Mr Ghietti's evidence should be preferred over that of Mr Brown who, it submits, was engaged in a process of reconstructing what happened rather than recalling precisely what occurred.
[242]The Appellant's submission also refers to different descriptions of the mechanism of the work-related injury advanced by Mr Brown, or those who have prepared documents based on what he told them, including:
(a)telling the triage nurse on 9 February 2014 it was from work at the foundry including "some lifting" (Exhibit 28), see also Dr Flynn's reference to "heavy lifting" on the medical certificate of 16 May 2014 (Exhibit 8 and 23);[21]
[21] That was subsequently replaced by Exhibit 22 which referred to "manoeuvring moulding box on pinion and placing cores into moulding box".
(b)apparently telling Mr Fichera that he first experienced symptoms whilst working on the QCT moulding line;
(c)telling Mr Fichera he was using a swing jib hoist to place cores when he felt a gradual tightening of muscles in the left side of his neck;
(d)telling Dr Flynn that he was turning or twisting his neck while moving the moulding box;
(e)telling Dr Flynn he was "manipulating castings and mouldings" which Dr Flynn understood could have been a box or a round shaped device;[22] and
[22] Although in cross-examination Dr Flynn recalled Mr Brown telling him that he was shoving or twisting a box, or manoeuvring a moulding box along rails.
(f)as he reiterated at the hearing, reaching with his left arm to pull or drag a moulding box along the chest high rollers.
[243]The Appellant asks why, if at the hearing Mr Brown had a firm and clear view about how he sustained his injury, he did not have such a clear view and express it when he was given opportunities to do so closer to the event? The Appellant submits that the reason is that the version of events given during the hearing was a reconstruction of how he might have been injured at work. (Submission para 73)
[244]The Appellant also refers to:
(a)Dr Frazer's evidence about Mr Brown's condition being caused by excessive boxing training; and
(b)the triage nurse's report on 20 April 2014 of Mr Brown reporting a blunt injury with painful left shoulder and neck stiffness after boxing exercise on 19 April 2014 (Exhibit 1) and leaving the hospital before receiving any treatment.
[245]As to when the Appellant knew of the alleged link between Mr Brown's condition and an event at work, the Appellant submits that the preponderance of the evidence supports a finding that 22 April 2014 was the first occasion on which the employer could have had an appreciation of an alleged connection between Mr Brown's symptoms and his employment. In particular:
(a)although Mr Fichera was broadly aware that Mr Brown had been away from work with neck and shoulder pain, he was not aware that Mr Brown was alleging that there was any nexus between his symptoms and his employment until 22 April 2014, approximately 10 weeks after the alleged incident;
(b)although Mr Brown contends that he told Ms Rees that he would "speak to Joe" about his absence from work in the week 10 to 17 February 2014, Mr Vecchio told the Commission that he did not speak to Mr Brown at any time around than and was not even aware that Mr Brown was relating his injury to his employment until he received two WorkCover medical certificates from Dr Flynn in mid-May 2014;
(c)the Incident/Injury Report was not completed until 19 May 2014 because of the need for input from Dr Jay.
[246]The Appellant submits that:
(a)it is inherently improbable that Mr Brown told Mr Chioatto that he was feeling sore in the neck when Mr Chioatto arrived on a forklift on 8 February 2014;
(b)in light of Mr Chioatto's evidence, the conversation about leaving early due to pain did not occur; and
(c)had Mr Chioatto been told these things, he would have reported them to Mr Fichera.
[247]On a related issue, the Appellant submits in relation to Mr Brown's consultations with Dr Jay on 5 and 12 May 2014 that:
(a)on 5 May 2014, Mr Brown did not say what he had been doing at work and Dr Jay found no obvious work related trauma and indeed considered that his condition was unlikely to be work-related;
(b)Mr Brown did not tell Dr Jay about any specific mechanism of injury referable to Mr Brown's employment, but told Dr Jay that his symptoms seemed to be getting worse when he did his work;
(c)Dr Jay's evidence should be preferred in any factual contest between Mr Brown and Dr Jay about what was said by Mr Brown to Dr Jay on 5 May 2012 because that account is corroborated by clinical notes made by Dr Jay at the time and by the evidence of Mr Fichera who was present at the consultations.
[248]The Appellant submits that the appeal should be upheld, with costs,
[249]Respondent's submissions: The Respondent submits that Mr Brown was a credible witness and that his statements about his injury are consistent.
[250]In support of a finding that (despite no direct witnesses to an "event") the injury occurred on the morning of 8 February 2014, the Respondent points to:
(a)the medical records that do not show any previous evidence of neck problems;
(b)Mr Brown having worked for two or three hours that morning before the onset of pain (and having worked every day during the previous week for eight hours without any problem);
(c)Mr Brown's presentation at Innisfail Hospital on 9 February 2014 and the triage record of Mr Brown's statement "Working at foundry yesterday some lifting felt muscle spam [sic spasm] left shoulder blade and left side of neck, today painful to move neck" (Exhibit 28);
(d)the records of Innisfail Physiotherapy of 10 February 2014 to the effect that Mr Brown experienced the painful symptoms after moving a box at work on 8 February 2014.
[251]As to the precise circumstances of the event said to have caused the injury, the Respondent submits that there is no inconsistency in the evidence of Mr Brown and Mr Ghietti in relation to the moulding box that was ready for coring. Mr Ghietti did not say whether it was on the coring rollers or still on the rollers on the bottom box line. Mr Brown's evidence is that he moved a bottom box that was finished to the end of the rollers on the bottom box line. Nor is his evidence inconsistent with Mr Ghietti's to the effect that he would get a third person to help get a box and put it down, meaning from the bottom box rollers to the coring rollers.
[252]Furthermore, the Respondent submits, it was not the evidence of Mr Brown that he complained of pain to Mr Ghietti at the time and place which he first experienced pain, i.e. when he was on the bottom box line.
[253]The Respondent submits that Mr Ghietti's evidence is consistent with Mr Brown suffering the onset of left neck/shoulder pain whilst working on the BQ5 line between 10.00 and 11.00 am on 8 February 2014. Mr Ghietti would not be expected to enquire into the details of how and when the pain commenced, and was focused on catching up with his allocated work. The discussion took place in a noisy environment where hearing protection was standard. He was not asked about his recollection of the day until seven months later.
[254]Mr Fichera's evidence in relation to the QCT line was that he was called over to that line on 22 April 2014 by Mr Lyons, and Mr Brown advised his neck pain was getting worse and he was getting pain and numbness in his left hand. Mr Brown expressed concern that it was the coring job there that was making his pain worse. They discussed what Mr Brown could do in the foundry. That is consistent with Mr Brown's evidence.
[255]The Respondent also submits that Mr Brown's own statements about his injury are consistent. The lack of records supports his evidence that his employer and the company doctor did not seek sufficient detail of his injury. So, for example, in preparing the Incident/Injury Report Mr Fichera did not wait for Mr Brown's answers but wrote what he wanted to write.
[256]As to the suggestion that Mr Brown's condition was caused by boxing or boxing related activity, the Respondent submits that there is insufficient evidence to find that boxing was the cause of Mr Brown's injury and that work activity on 8 February 2014 was not a significant contributing factor. In support of that conclusion, the Respondent submits:
(a)there were no eyewitnesses called to contradict any of the evidence of Mr Brown or Mr Norman that Mr Brown had not participated in a boxing bout since 3 November 2013 and had not been injured in that one round bout, Mr Brown had not commenced the season training juniors before 8 February 2014, Mr Brown had not commenced his own senior training with Mr Norman before 8 February 2014, Mr Brown did not recommence training juniors in February 2014 because of his neck injury, and Mr Brown's boxing training or exercise in early 2014 consisted of jogging, sit-ups, push-ups and general fitness but he did not have a speedball or heavy day at home;
(b)although Dr Frazer said he recalled being told that the boxing training involved a punching bag, he could not recall when this alleged activity had taken place and "didn't really go on any further than that;"
(c)overall, Dr Fraser had no recollection of a short consultation about what he diagnosed to be a minor condition, he had no independent recollection of Mr Brown, and he did not recall when he wrote his brief record (which made no reference to the history provided in the triage record and contained no detail of the mechanism or timing of injury);
(d)the reference in the triage report of 20 April 2014 to "Injury – Blunt injury" was a drop-down box, and Ms Clark agreed in cross-examination that she had no idea what the boxing exercise was. By comparison, Mr Brown said he did attempt to do some skipping on the afternoon before and could not do it any more and was "probably referring to the skipping" when he spoke to the triage nurse. He said he was not there to discuss the original injury, but went to seek pain relief. The Respondent submits that there is no significant inconsistency in Mr Brown's evidence.
[257]As to when the Appellant knew of the alleged link between Mr Brown's condition and an event at work, the Respondent submits that:
(a)it is not correct to say that on the balance of evidence Mr Fichera only became aware that Mr Brown was alleging a nexus between his symptoms and his employment until 22 April 2014;
(b)despite having been told about the work injury as early as 17 February 2014, Mr Fichera made no attempt to properly record or report the injury until 19 May 2014 (having assessed the injury as minor and having tried to manage it himself without a formal process);
(c)as a result of Mr Fichera's email of 14 May 2014, Mr Vecchio and national management were made aware of Mr Brown's neck problems and the potential of a work related injury;
(d)it is not correct to state that the Incident/Injury Report could not be completed without the input of Dr Jay and, on this point, Mr Fichera's evidence about the delay (i.e., that it takes some time to investigate) was unconvincing, especially as no "investigation" was ever done, and Dr Jay did not provide any input to the incident report form (whether directly or indirectly).
[258]On the related issue, the Respondent submits in relation to Mr Brown's consultations with Dr Jay that it is not correct to say that Dr Jay's evidence about the consultation was supported by Mr Fichera. Dr Jay asserted that he attempted to take a history of the mechanism of injury and question Mr Brown about that (although his brief notes do not refer to any date or mechanism of injury). However, Mr Fichera said that the discussion was about symptoms, and the mechanism of injury was not discussed. Mr Fichera's evidence was more consistent with Mr Brown's assertion that Dr Jay did not ask questions about exactly how the injury was done, but was just concerned about symptoms.
[259]The Respondent also submits that it beggars belief that a workplace health and safety adviser who was responsible for employees' injuries, who admits that he had been told on more than one occasion of the alleged work injury, and who takes that employee to the doctor chosen by the employer, would not ensure that the mechanism of injury was raised and properly explored.
[260]In conclusion, the Respondent submits that the appeal should be dismissed because:
(a)Mr Brown was a worker;
(b)on the balance of the evidence at hand, Mr Brown suffered a personal injury being a prolapsed disc or an exacerbation of his cervical spondylosis on 8 February 2014;
(c)the onset of Mr Brown's symptoms occurred during the performance of his work duties on 8 February 2014 and hence arose in the course of his employment; and
(d)the medical evidence supports a logical and common sense finding that the work activity on 8 February 2014 was a significant contributing factor to Mr Brown's injury and, although not necessary, that Mr Brown's injury arose out of his employment.
Consideration and conclusion
[261]As noted earlier in these reasons, the Appellant can only succeed in this appeal if it satisfies the Commission on the balance of probabilities that:
(a)the event at the foundry did not occur on 8 February 2014; or
(b)if such an event occurred, it was not a significant contributing factor to the neck condition suffered by Mr Brown.
[262]Although the onus to be discharged is on the balance of probabilities, the Commission must feel an actual persuasion before the alleged facts can be found to exist. In cases where the worker is the appellant, the mere possibility of the appellant suffering an injury on mere conjecture is not enough. Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. It is not necessary, however, for an appellant to prove every fact or conclusion of fact upon which the issue depends. Legitimate and reasonable inferences can be drawn.[23] The same approach should be taken in deciding whether an employer appellant has discharged the onus that it bears.
[23] See MacArthur v WorkCover Queensland [2001] QIC 21; (2001) 167 QGIG 100, 101 (Hall P) and cases cited.
[263]While there is room for intuitive reasoning when determining whether a worker has suffered an injury within the meaning of the Act, in the process of determining that question of fact, the Commission cannot substitute speculation for satisfaction on the balance of probabilities.[24]
[24] Nilsson v Q-Comp (2008) 189 QGIG 523, 526 (Hall P).
[264]Despite the Appellant's submissions, I do not proceed on the basis that little weight should be attached to any of Mr Brown's evidence. Nor do I accept his evidence without qualification. His evidence was, for the most part, consistent on key issues. Some of the variations or inconsistencies can be explained by reference to the effect on his memory of the passage of time between the events and his various statements, and to the very specific questioning to which he was subject during the hearing. His explanations of differences between his contentions or recollections and those of others need to be assessed by reference to that other evidence, rather than dismissed out of hand.
[265]Submissions were made highlighting apparent inconsistencies about matters of detail such as the precise time at which Mr Brown commenced working on the BQ5 moulding line and the time taken to perform certain tasks. In my view, having regard to such factors as the nature of the work in the foundry, the period that elapsed between the activities and the time when people were giving oral evidence in relation to them, and the evidence of Mr Brown that he does not wear a watch at work and the evidence of Mr Ghietti that there is no clock in that area of the foundry, nothing turns on some of the fine differences identified in those submissions.
[266]Before moving to what I consider to be the critical aspects of the evidence, I note that (as will be readily apparent from these reasons) most of the evidence concerned what happened after 8 February 2014. Yet the issue in this case is whether a workplace incident occurred on that date. Evidence about subsequent action or inaction on the part of people who gave evidence in these proceedings is helpful to a degree, including as to the credit of individual witnesses, and the nature of some workplace relationships, e.g. between Mr Brown and Mr Fichera. However, it is of limited use in reasoning backwards to determine what, if anything, happened on 8 February 2014. Of more significance is what Mr Brown's circumstances were on and immediately before that date, and the interactions he had with people about his physical symptoms and condition in the days immediately afterwards.
[267]The only evidence in relation to Mr Brown's physical condition on and immediately before the morning of 8 February 2014 is that he was fit, in good health and experienced no symptoms in relation to his cervical spine. In other words, although the extent of the degenerative condition around his C6-C7 was subsequently ascertained, that condition was asymptomatic before 8 February 2014.
[268]Accordingly, I find that Mr Brown had not experienced any symptoms of that degenerative cervical condition before he went to work on 8 February 2014. That finding is supported by Mr Brown's work record in the previous week and Dr Frazer's evidence that on 9 February 2014 Mr Brown had no other injuries and was fit and well.
[269]In order to decide whether the relevant "event" occurred in the workplace later in the morning of 8 February 2014, it is necessary to consider the evidence about the activity in which Mr Brown was engaged and his location on the BQ5 moulding line.
[270]The oral evidence was not crystal clear. Mr Brown's account and Mr Ghietti's account are summarised at [20] to [24] and [30] to [35] respectively. I need not repeat them.
[271]If Mr Brown's account is correct then it would appear that, for at least some of the time, he was standing close next to Mr Ghietti at the drag while moving the bottom box. If so, it is surprising that neither man mentioned that. However, that is explicable by Mr Brown's evidence that when he moved the bottom box along the rollers, Mr Ghietti had walked off to the left to prepare another box.
[272]In the absence of an independent eyewitness to the event or events, I have come to the conclusion that Mr Ghietti's account is both comprehensive and convincing. Given the difficulties that Mr Ghietti was having in inserting cores into the moulds on the lower rollers and his request to Mr Brown to assist with putting cores into moulds, I am satisfied that Mr Brown demonstrated the best way to put a strap on to a core and did some coring work at the lower rollers.
[273]Mr Ghietti's evidence does not conflict with Mr Brown's account of the event. Indeed, Mr Ghietti's evidence that he "looked over to see [Mr Brown] putting the boxes down" in the location where Mr Brown was strapping the cores is consistent with Mr Brown moving a moulding box from the drag to the lower rollers for coring. It is at that time that Mr Ghietti recalls Mr Brown first saying to him that he was feeling sore and indicating the area at the top of his left shoulder. The fact that Mr Ghietti does not recall Mr Brown coming to the side of the rollers where he was working does not mean that Mr Brown did not do so, particularly given the sequence of tasks that the three men were involved in at that time and in that area of a noisy foundry. Indeed, Mr Ghietti gave evidence that usually when a third person comes over to assist, the corer will help on both sections, i.e. they will help move a box on the drag machine if that's necessary so that they can do coring work.
[274]The effect of the evidence is that Mr Brown was engaged in a range of associated activities including moving and manoeuvring moulding boxes and working with cores. As part of that work, Mr Brown used the overhead crane.
[275]As noted earlier, Mr Ghietti's evidence was that the task of moving a moulding box along the rollers is relatively easy for someone who knows what they are doing. Mr Brown is such a person.
[276]That observation is consistent with my impression from viewing the process at the foundry immediately before the commencement of the hearing of this appeal, and the DVDs in evidence (Exhibit 16 and 17). I find that Mr Brown tended to overstate the degree of physical effort involved in moving a moulding box, and there was no corroborating evidence that the action of the drag was affected by sand on 8 February 2014.
[277]That finding does not mean that the appeal must succeed. The medical evidence set out earlier supports a finding that, given the degenerative condition of Mr Brown's cervical spine at the C6-C7 level at around February 2014, it would take relatively little action or pressure from moving his head or neck to precipitate the prolapse of the disc at that level. That prolapse, together with the existing associated osteophytosis, would give rise to the symptoms that he experienced.
[278]The question then is whether a work-related activity such as moving a moulding box in the way described by Mr Brown precipitated the disc prolapse and, if so, whether as a consequence Mr Brown's employment was "a significant contributing factor" (as that expression has been interpreted)[25] to his injury.
[25] See e.g. QANTAS Airways Limited v Q-COMP and Blanch [2009] QIC 20; Cronig v Workers' Compensation Board of Queensland [1997] 156 QGIG 100, 101 (de Jersey P); Carman v Q-COMP (2007) 186 QGIG 512, 513 (Hall P); Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48; (2006) 1 Qd R 519, [27], [41] (Keane JA, with whom de Jersey CJ and Muir J agreed).
[279]There is no issue, and I find, that Mr Brown was involved in manual work involving moulding boxes and cores at the foundry, that he informed Mr Ghietti on two occasions during the morning shift on 8 February 2014 that he was feeling sore and that he was having difficulties continuing with his work, and that Mr Brown experienced increasing pain and tightness around his neck during that period.
[280]I find that:
(a) Mr Brown first experienced the symptoms of what was later diagnosed as a disc prolapse at C6-C7 when pulling a moulding box along the drag rollers, an activity that involved turning or twisting his neck;
(b) Mr Brown suffered an injury arising in the course of his employment; and
(c) his employment was a significant contributing factor to the injury.
[281]If that was the only evidence and finding on this point, then the appeal could not succeed. However, three other matters need to be considered.
[282]The first is whether boxing and related activities could have been a contributing factor, even a significant contributing factor, to the injury suffered by Mr Brown.
[283]The evidence summarised and considered earlier in these reasons for decision shows that:
(a)at different times before early February 2014, Mr Brown engaged in personal boxing training, the training of juniors at the Police Citizens Youth Club gymnasium, and participated in four boxing matches up until 2 November 2013 (and was not injured in any of those fights);
(b)when he presented at the Innisfail Hospital on Sunday 9 February 2014, Dr Frazer recorded that Mr Brown was engaged in boxing training to excess;
(c)on Sunday 20 April 2014, the triage nurse at Innisfail Hospital noted that Mr Brown had a "blunt injury" and was experiencing a painful left shoulder and stiffness after "boxing" exercise the previous day;
(d)Dr Ballenden's report dated 16 February 2015 states that after his last boxing match in November 2013 Mr Brown was involved in boxing training (but not boxing matches) and continued to train "extensively," and he "trained hard," including working on his speed ball and on the heavy bag.
[284]Mr Brown sought to minimise the effect of this evidence in various ways. For example, he suggested that Dr Frazer was incorrect in his consultation note and recollection, that his boxing exercise for periods after 8 February 2014 was not strenuous, and that he did not have (and hence, by implication, did not use) a speed ball or heavy bag.
[285]It seems unlikely, and I am not satisfied, that all of the people who gave evidence in relation to the boxing activity could have been mistaken. Each of them operates independently of the others and is trained to take notes of conversations with and examinations of patients. They had no reason to record information of this sort that was not provided to them by the person they are assessing. In particular I note that Dr Ballenden observed in his report that Mr Brown advised that he was "ordered" to attend on Dr Ballenden and was worried about that and the fact that the doctor had been selected by his company. His mood appeared low and his expression flat, but he did converse normally. In such circumstances, and at a time some 12 months after the alleged event in the workplace, it would be surprising that Mr Brown would describe his boxing related activities to Dr Ballenden in such detail unless it was accurate, or that Dr Ballenden would make such a specific reference if Mr Brown had not provided him with that information.
[286]Of the doctors who considered whether boxing activity could have contributed to Mr Brown's condition:
(a) Dr Jay considered that boxing might cause problems of the type from which Mr Brown suffers;
(b) Dr Flynn (who had certified Mr Brown as "fit to box" on 31 October 2013) agreed that boxing training might produce some form of injury or sprain to the shoulder or neck, and stated that, if Mr Brown sustained a prolapsed disc on 8 February 2014, a subsequent attempt to do skipping would be likely to exacerbate the pain he experienced;
(c) Dr Ballenden observed that it appeared that Mr Brown was well enough some time after February 2014 to return to boxing training (which implies a resolution of symptoms at least to a level where Mr Brown could engage in vigorous exercise again), and also suggested that the "blunt injury" referred to in the record of 20 April 2014, although not defined, was not something that Mr Brown could have given himself doing boxing training;
(d) Dr Ballenden expressed the opinion that boxing related activities could not in themselves have caused the injury or condition complained of by Mr Brown, but these exercises are more likely to have caused symptom flare than the nominated job activities, and it was more likely that the neck position during such aggressive high demand physical activity (boxing training) may have caused the nerve root to be impinged by the osteophytosis, and boxing activity could have exacerbated symptoms from the underlying condition (without causing the disc prolapse which he described as the minor component of the problem);
(e) Dr Guazzo agreed that boxing training (e.g. skipping or calisthenics) might be sufficient to cause problems in a person who has degenerative changes in their cervical spine; and
(f) Dr Coyne stated that it was possible that boxing training could be the most significant factor in a condition such as is present in Mr Brown, but he could not say that a work incident or boxing training was more likely to be the cause of the symptoms as, from a medical aspect, both scenarios were equally plausible.
[287]The effect of that evidence is that boxing training might have contributed to Mr Brown's condition, given that he had degenerative changes to his cervical spine, and that after the disc prolapse such training would exacerbate the pain he experienced.
[288]Against that is the Respondent's submission (set out in detail at [257]) that there is insufficient evidence to find that boxing was the cause of Mr Brown's injury and that work activity on 8 February 2014 was not a significant contributing factor.
[289]Having regard to the evidence as a whole, I find that Mr Brown understated and sought to minimise the degree to which he was involved in boxing training at the relevant time. The records of Dr Frazer on 9 February 2014 and the triage nurse on 20 April 2014 cannot be ignored or explained away, even if in their brevity they might create an impression of greater activity than Mr Brown undertook.
[290]Nonetheless, there is no evidence to suggest that Mr Brown experienced any of the symptoms caused by his disc prolapse and associated osteophyte before he commenced work on 8 February 2014. Although boxing training might have expedited the degeneration that was already well advanced, I find that it did not give rise to the symptoms Mr Brown experienced at the foundry between 10.00 and 11.00am on 8 February 2014.
[291]If I am wrong in that conclusion, I am satisfied that the result would still be the same in the sense that Mr Brown's employment was "a significant contributing factor" to his injury. In Calder v Simon Blackwood (Workers' Compensation Regulator),[26] O'Conner DP relied on the decision of Hall P in Q-COMP v Green[27] for the proposition that where the Act speaks of employment being a significant contributing factor, the word "significant" is used in the sense of "important" or "of consequence." O'Connor DP continued: "The use of 'a' significant contributing factor indicates that there can be more than one significant factor."[28]
[26] Calder v Simon Blackwood (Workers' Compensation Regulator [2014] QIRC 101, [33].
[27] Q-COMP v Green (2008) 198 QGIG 747
[28] Calder v Simon Blackwood (Workers' Compensation Regulator [2014] QIRC 101, [34]. See also Cooper (as the legal representative of the late Leslie Cooper) v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 38.
[292]Even if boxing related activity contributed to the disc prolapse on 8 February 2014, I find that Mr Brown's work-related activity was a significant contributing factor, indeed the major significant contributing factor.
[293]Second, there is an issue about the contents of Mr Brown's phone call to Ms Rees on 10 February 2014. The answer "No" recorded in response to the question "Is the illness work related?" is not in dispute. Mr Brown asserts that he told Ms Rees "It is work-related. However, you can put it down as No and I'll speak to Joe [i.e., Mr Vecchio] when I return to work." Ms Rees gave evidence that Mr Brown did not mention that but gave a simple "No" answer. Mr Brown's explanation for this otherwise curious answer to the question includes:
(a) knowing that the Appellant would want to avoid a time lost injury claim;
(b) being in significant pain and wanting to avoid an experience similar to that following his lower back injury in 2013 when others from the foundry would come to his home in a work vehicle and take him to the foundry to be scanned in; and
(c) being concerned about his employment.
At that stage, the only diagnosis Mr Brown had was a sprained muscle. Mr Brown stated that Dr Frazer told him that the injury was minor. The treatment was for a soft tissue injury. At 28 years of age and in otherwise good health, it was reasonable to expect on the basis of his consultation with Dr Frazer that Mr Brown would be fit for work in about one week's time.
[294]In the circumstances peculiar to Mr Brown, including his experience after his injury in 2013 (which was largely corroborated by the evidence of Mr Fichera, Mr Chioatto and Mr Vecchio), I accept Mr Brown's explanation for why he answered "No" to the question. I have difficulty, however, in deciding whether to prefer his evidence or that of Ms Rees in relation to the contentious part of the telephone call. For the purpose of deciding this appeal, it is not necessary to make a finding in relation to that. I note, however, that, whatever his intention on 10 February 2014 (and whether or not he gave that full response to Ms Rees), Mr Brown did not speak to Mr Vecchio about the matter on his return to work. Had he done so, it is possible that the proceedings that led to this appeal would not have been necessary.
[295]Third, I am concerned about the apparent lack of record prepared by the Appellant in relation to Mr Brown's injury. In part, that seems to be explained by Mr Brown's advice, recorded by Ms Rees, that his injury was not work-related. Understandably, having regard to that response and the Appellant's policy in regard to workplace injuries, the Appellant through Mr Fichera proceeded on that basis. Mr Brown did not assist by not taking opportunities to press his claim of a work related injury earlier and more persistently, including with Dr Jay and when he had the opportunity on 19 May 2014 when the Incident/Injury Report was being prepared. Whatever misunderstanding Mr Fichera had of key events, and whatever the tension between Mr Brown and Mr Fichera on that occasion, I am satisfied that Mr Fichera was attempting to identify precisely the root cause of Mr Brown's injury or condition. Despite the presence of his support person, Mr Brown was not as forthcoming as he might have been. Nonetheless, that later imprecision cannot of itself determine whether he suffered an injury on 8 February 2014 and whether the injury was work-related.
[296]From the findings set out at various places in the preceding reasons it is clear that I am satisfied that:
(a)Mr Brown suffered an injury comprising a prolapsed disc at C6-C7;
(b)the injury arose in the course of his employment at the Appellant's foundry during the morning of 8 February 2014;
(c)his employment was a significant contributing factor to the injury.
[297]Accordingly, the Appellant has not satisfied me on the balance of probabilities that the event at the foundry did not occur on 8 February 2014 or that, if such an event occurred, it was not a significant contributing factor to the neck condition suffered by Mr Brown.
Orders
[298]It follows from those conclusions that:
(a)the appeal is dismissed;
(b)the decision of the Respondent is confirmed;
(c)the Appellant is to pay the Respondent's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.
[299]Order accordingly.
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