O'Shea v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 213
•3 December 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | O'Shea v Simon Blackwood (Workers’ Compensation Regulator) [2014] QIRC 213 |
PARTIES: | O'Shea, William v Simon Blackwood |
CASE NO: | WC/2014/107 |
PROCEEDING: | Appeal against a decision of the Regulator. |
DELIVERED ON: | 3 December 2014 |
HEARING DATES: | 2 – 3 December 2014 |
MEMBER: | Deputy President Kaufman |
ORDERS : | 1. That appeal is dismissed. 2. The decision of the Regulator is confirmed. 3. The Appellant is to pay the costs of the Respondent in an amount to be agreed between the parties or, failing agreement, on application to the Commission. |
| CATCHWORDS: | WORKERS' COMPENSATION – APPEAL AGAINT DECISION – whether the injury arose out of or in the course of employment – whether employment is a significant contributing factor – the appellant was employed as a labourer – pre-existing injury - appeal dismissed. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32 |
| APPEARANCES: | Mr W. O'Shea, in person, the Appellant. Mr F. Lippett, Counsel, directly instructed by Simon Blackwood (Workers’ Compensation Regulator), the Respondent. |
Decision
In delivering my decision from the Bench on 3 December 2014, I said (as edited):
I’m going to dismiss your appeal, Mr O'Shea, and I’ve got some brief reasons for doing so that I will deliver now. Of course, they're somewhat briefer than they would be had I reserved to consider my decision but I think in fairness to you, having come to my conclusion, I ought to try to give it to you as quickly as I can.
The appellant was involved in an incident whilst he was engaged by Mr and Mrs Harris as a contractor in the construction of their hangar/home at Shute Harbour Airport. He was initially engaged as a plumber but also worked as a roofer and subsequently a labourer, all at differing rates of remuneration. The incident occurred whilst Mr O'Shea was carrying or lifting a sheet of blue board which he describes as being a wall sheet that he says was three metres by 1350 centimetres and eight millimetres thick, weighing 54 kilograms. At the time he was carrying this, a gust of wind caught the sheet, which caused him to unnaturally extend his left arm. He says that the wind sheet almost blew him over. He lost his balance and felt two snaps on his wrist and the board, which he had supported on his shoulders and head, he threw forward, lost his balance, and it landed on his legs from the thigh down, I think was the evidence. He tried to then put the board under his arm. He said, "The one I just hurt", and he had difficulty with that.
He says that at the time that the wind hit the board it fell with a loud bang and he swore and yelled out to his co-worker, Mr McDonald, "Where’s Ron?" Mr McDonald is a boilermaker who at that time was working performing some welding functions and in an area where he couldn’t readily hear the appellant, nor did he see the incident. Mr McDonald came down from where he was working and the appellant again asked him where was Ron, Ron being Mr Harris, and Mr McDonald said he was in Townsville. The appellant told McDonald that he had just pulled his arm and felt two snaps on his wrist and felt as if someone had crow-picked him on the shoulder. The appellant and Mr McDonald discussed filling out an incident report and decided to wait until Mr Harris's return to site, Mr McDonald having told the appellant that Harris was in Townsville. There is some inconsistency in the evidence as between the appellant and Mr McDonald but having regard to my findings nothing of significance turns on those inconsistencies. Mr O'Shea says that he tried to continue to work thereafter but could only do so to a limited extent and that he finished the day by doing light sweeping duties with his right arm.
Although a major issue in the case is the date upon which the incident occurred, having regard to the evidence of Dr Koack this morning, I'm not so certain that a considerable amount turns on the date of the incident, but in his application for compensation which was made on the 21st of August 2013 Mr O'Shea filled out the form indicating that his injury had happened on the 2nd of June 1913 and that he first reported it on the same date. Throughout that form, the year 1913 is put instead of 2013. Mr O'Shea attributes this to his befuddled mental state at the time of filling out the application. Significantly, for the purposes of determining when the injury occurred – he filled out the form as saying it was on the 2nd of June. The way that the form is formulated provides for boxes to be filled in for the date to be put and with two squares for the day, two squares for the month and four squares for the year. The numeral 2 appears in the second square for the date – for the day, with the first square being left blank. It's clear to me that it was intended that the date be put as the 2nd of June. Mr O'Shea says that he intended to write the 26th of June but that he was distracted when some child allegedly ran into his leg and he didn’t finish filling it in after he filled in the 2. He didn’t put the 6. I don't accept that. It's inherently unlikely and it's not consistent with the way that the form has been filled in.
Tax invoices tendered by the regulator disclose that the appellant invoiced Mr Harris for labouring work on the 24th, 25th, 26th and 27th, and Friday, 28th of June, and the invoice for that work is dated the 28th of June and a further invoice dated 7 July is for roof flashing work given as occurring on the 4th of July. The amount indicates that it was for more than one day and it would appear that Mr O'Shea probably worked performing roof flashing work on a couple of days in that week beginning the 1st of July.
Mr O'Shea asserts that the incident occurred on the 26th of June 2013 when Mr Harris was not on site and that Mr Harris rang him on his mobile phone about an hour after the incident saying, "I hope you haven’t hurt yourself. I haven’t paid my workers' compensation insurance." Mr Harris, who gave evidence, denied being absent from the site that week and he also denied having made any phone call to the appellant on that day or, obviously, making those comments. Mr O'Shea’s search of Mr Harris's telephone records did not disclose that Mr Harris made any phone calls to the appellant on 26 June 2013. To the extent that it's relevant to these proceedings and my findings (it's probably not) I discount Mr O'Shea's conspiracy theory that Mr and Mrs Harris manipulated him into a position where Mrs Harris could delete the phone records from Mr O'Shea’s mobile phone which Mr O'Shea asserts occurred on the 10th of September 2013.
Much was made of the inconsistencies in the dates upon which the appellant alleges that the incident occurred. In his application for compensation the date was 2 June. He indicated on that form that he advised his employer of the injury on the 2nd of July. He saw his doctor on the 21st of August 2013 and told him that the injury occurred some four weeks earlier, which, of course, would have meant it occurred in late July, and indeed Dr Koack recorded 'left shoulder pain at work about four weeks ago lifting wall sheeting, walked upstairs, sudden shoulder pain, left forearm pain', and then the appellant told a WorkCover claims officer that the incident occurred on the 4th of July. Given all those varying dates, it's not possible for me to find, on the balance of probabilities, that the incident occurred on the 26th of June or indeed on any particular day, although I do accept that an incident such as that described by Mr O'Shea did occur.
It's relatively clear that Mr O'Shea worked the week of 24 June and at least a couple of days in the following week, the first week in July 2013. It’s also relatively clear that on or around the 24th of June Mr Harris told the appellant and other contractors on the site that due to changes in the workers’ compensation legislation he, Mr Harris, would be required to deduct tax from the pay that the workers received. I’m satisfied that the appellant who at that time was working as a labourer for Mr Harris at $30 an hour was not prepared to work at those rates if tax was to be deducted by Mr Harris. Mr O'Shea said in his evidence that he wasn’t going to work for $20 an hour.
I’m also satisfied that on Monday, the 8th of July, the appellant and Mr Harris had an argument. Whether it was about removal of concrete as well as tax, I don’t know, but it was at that time that Mr Harris was told by the appellant, "I’m out of here." That leads me to conclude that Mr O'Shea stopped working for Mr Harris because of the dispute he was having with him in relation to the taxation issue and not because he was unable to work because of an alleged injury. Those words, to me, are not consistent with Mr O'Shea informing Mr Harris that he was unable to work due to injury. They are only consistent, in my view, with Mr O'Shea declining to continue to work if tax was to be taken out of his labouring wage. To some extent, this is confirmed by the separation certificate that Mr Harris filled out giving the reason as being that the appellant had left because he objected to having tax taken from his pay. I accept, of course, that that's Mr Harris's version, but it does provide some confirmation.
Mr O'Shea said that he would have been prepared to work as a plumber. That, again, is inconsistent with him being unable to work due to having suffered an injury. I don't accept that the work as a plumber was so much easier than the work as a labourer that he could work as a plumber with the injury but not as a labourer. These matters all confirm my finding that the reason the appellant stopped working for Mr Harris was not due to any injury that he suffered as a result of the incident with the wall sheet and the wind.
Mr O'Shea rang Mr Harris on the 19th of August 2013 and, Mr O'Shea says, to tell him that if he was ready for the roofing work to be done he better find somebody else because he, Mr O'Shea, was not able to do it. Mr Harris’s evidence is to the effect that Mr O'Shea rang to ask him if he wanted him to perform the roofing work, and I prefer Mr Harris’s evidence. Mr O'Shea does accept that shortly after that conversation he rang Mr Harris back and said something to the effect, "So maybe you just don’t want me to come out and work." That was the wording that Mr O'Shea used in the witness box. That is inconsistent with Mr O'Shea's evidence that he was only informing Mr Harris that he had better get somebody else to perform the work. Mr Harris's evidence, which I accept, on this issue was that he told Mr O'Shea that he couldn't – it was unlikely that he would be able to take him back because he still hadn’t resolved some issue that he, Mr Harris, had with his owner/occupier insurance. It was then that Mr O'Shea said to Mr Harris, "Well, I’m going to the doctor then", which Mr O'Shea did some two days later when he went to visit Dr Koack.
I don’t accept Mr O'Shea’s evidence that he couldn't see Dr Koack for 19 days after seeking to do so. Dr Koack was quite clear in his evidence today that there was a waiting time of only a few days maximum and that urgent cases were always seen on the same day, either by him or by somebody else. I infer that it was because Mr Harris would not re-engage Mr O'Shea that he decided that he would make a workers' compensation claim and he went to see the doctor two days after having been told by Mr Harris that he would not be re-engaged. If the incident took place on the 26th of June, the delay in visiting the doctor in relation to his shoulder is inexplicable. I don't accept Mr O'Shea's evidence that he just thought he would see how it went and see if it got better. I put to him while he was making submissions that it just seemed extraordinary that he suffered an injury on the 26th of June and was in so much pain or had such difficulty working that he couldn’t continue beyond the following week and yet didn't see a doctor to make a workers' compensation claim or see what could be done about it. It just doesn’t seem to me to be credible.
But to some extent these matters are peripheral having regard to the evidence of Dr Koack given this morning. Dr Koack saw Mr O'Shea on the 21st of August 2013. He took notes of that consultation and he confirmed the accuracy of those today. He said that he, the appellant, had complained about left shoulder pain at work about four weeks ago, on the 21st of August, which, of course, would – as I said, be mid-July. It occurred while he was lifting heavy sheeting upstairs and he got caught by a wind gust and he had trouble holding it, that he stretched his left arm, and the main symptom was his left shoulder was jerking. He could move his shoulder fine in all directions, although the shoulder felt clunky. The doctor said that otherwise it was stable, and he demonstrated – Mr O'Shea demonstrated to the doctor, as he did during his submissions, that if he touched his body in particular areas in the small of his back and the side of his neck that he had a jerking movement in his shoulder. The doctor could provide no medical explanation for these symptoms.
Significantly, for this matter, Mr O'Shea had been referred to a surgeon. I need not go into the detail of that. The surgeon was not called. However, Dr Koack gave evidence of his interpretation of two MRIs that were taken of the relevant area of Mr O'Shea’s back and neck and those MRIs demonstrate that Mr O'Shea suffers from significant osteoarthritis in those areas. It’s not necessary for me to detail the particular findings of the MRIs. I asked the doctor to summarise and he said that Mr O'Shea has significant degeneration on his left side which can impair the function of the nerves which supply the left arm and shoulder and when asked about whether this could be caused by the incident with the sheeting board he said it was not – the doctor said that it was not caused by the trauma, that if a person suffering that level of osteoarthritis experienced a sudden load, as Mr O'Shea apparently did when the wind caught the board, then it was possible to get temporary symptoms.
On the evidence of Dr Koack it is fairly clear to me that Mr O'Shea has suffered and continues to suffer significant arthritis and significant degeneration of the relevant vertebrae that can impinge upon his nerves and that to the extent that he experienced pain when the wind caught the board that was a symptom of the degeneration from which Mr O'Shea was already suffering. The manifestation of pain of itself does not necessarily disclose that an injury has been caused at that time. It is consistent, as the doctor said, with the symptom of the pre-existing injury here, that pre-existing injury being arthritis. I cannot find that the incident with the board either caused the injury or that it aggravated a pre-existing injury, and in those circumstances section 32 of the Workers’ Compensation and Rehabilitation Act defining injury as a personal injury arising out of or in the course of employment, the employment being a significant factor, cannot be made out. I can't be satisfied on the balance of probabilities, as I need to be for the appeal to succeed, that Mr O'Shea suffered an injury within the meaning of section 32. For those reasons, I must dismiss the appeal and I do so.
In the circumstances I don't think I can do anything but order that you do pay the costs, and I do so. I order that the appellant pay costs in an amount to be agreed between the parties or, failing agreement, on application to the Commission. I would just ask that consideration be had to Mr O'Shea’s financial position when those discussions regarding costs are being held.
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