Parsons v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 109
•4 July 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Parsons | v | Simon | Blackwood | (Workers' |
Compensation Regulator) [2014] QIRC 109
| PARTIES: | Parsons, Daniel | ||||
| (Appellant) | |||||
| v | |||||
| Simon Blackwood (Workers' Compensation Regulator) | |||||
| (Respondent) | |||||
| CASE NO: | WC/2013/207 | ||||
| PROCEEDING: | Appeal against a decision of Simon Blackwood | ||||
| (Workers' Compensation Regulator) | |||||
| DELIVERED ON: | 4 July 2014 | ||||
| HEARING DATES: | 11 and 12 December 2013 | ||||
| 3 April 2014 12 May 2014 (Appellant's submissions) 30 May 2014 (Respondent's submissions) | |||||
| MEMBER: | Industrial Commissioner Thompson | ||||
| ORDERS : |
|
confirmed.
3. The claim is not one for acceptance.
4. The Appellant is to pay the Respondent's cost of and incidental to the Appeal.
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Simon Blackwood (Workers' Compensation Regulator) - Appellant a worker - bears onus of proof - standard of proof - balance of probabilities - medical evidence - Appellant failed to establish personal injury arose out of, or in the course of, employment - Employment was not a significant contributing factor to the injury - Appeal dismissed - claim not one for acceptance - decision of Regulator confirmed - Appellant to pay Regulator's costs. |
| CASES: | Workers' Compensation and Rehabilitation Act |
| 2003 s 11, s 32(1), s 275, s 549, s 550 | |
| APPEARANCES: | Ms J. Sorbello, Counsel instructed by Murphy Schmidt Solicitors for the Appellant. Mr C. Clark, Counsel directly instructed by Simon Blackwood (Workers' Compensation |
| Regulator), the Respondent. |
[8] The Commission, in deciding to précis the evidence of the witnesses, and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety.
Witness Lists
[9] The witnesses for the Appellant were as follows:
Dr Leanne Jackson (Dr Jackson); Appellant (Parsons); Melinda Ward (Ward); Keenan Nolen (Nolen); and Dr Robert Labrom (Dr Labrom).
[10] The witnesses for the Regulator were as follows:
Dr Gregory Day (Dr Day); Wayne Ohlbrecht (Ohlbrecht); and Daniel Magnabosco (Magnabosco). Appellant
[11] Prior to the commencement of evidence for the Appellant in these proceedings, an Affidavit was tendered (by agreement) from Allisa Jane Thompson (Thompson), a Solicitor with Murphy Schmidt Solicitors, relating to her attendance on Matthew Needham (Needham) at his home on 9 November 2010 for the purpose of obtaining a witness statement in support of the Appellant Appeal. In the Affidavit, Thompson confirmed that the statement was written by a person other than Needham and she could not remember if he [Needham] had signed the handwritten statement, but it was her evidence that the signature which appears on this statement was not that of the person who wrote the statement or her own.
[12] There were a number of attachments to the Affidavit that included:
handwritten statement of Needham; attendance notes of Thompson; attendance memo; and typed statement of Needham.
[13] The explanation for the abovementioned material [Exhibit 2] tendered in the proceedings in these circumstances related to Needham being deceased on 13 September 2011. A copy of Needham's Death Certificate was attached to the Affidavit.
Dr Jackson
[14] Dr Jackson holds a number of qualifications that included:
Bachelor of Pharmacy; Bachelor of Arts - Double Major in Psychology; and Masters in Clinical Psychology and Neuropsychology.
[15] Dr Jackson had been registered as a Psychologist since 1991 and following an interview with Parsons on 24 April 2013, provided a medico-legal report [Exhibit 3] to his solicitors. On the basis of the assessment undertaken, she had formed the opinion that Parsons had:
a cognitive impairment; a quite profound verbal learning disorder; his verbal intellect is abnormally lower than his non-verbal intellect; and he has problems with his auditory memory and his speed of auditory
processing.
[16] All of the above were said to have a significant impact on his social interaction in that he is unable to fully understand what is being said and amongst other things, he may not be able to accurately remember information that he had heard accurately, leading to him becoming quite defensive in those social interactions.
[17] Parsons, in the opinion of Dr Jackson, predicated that with people in authority he would be more likely to accept what they had said because they were in authority and would see them knowing more than him.
[18] Dr Jackson's report of some 31 pages addressed matters under the following headings:
Referral Sources of information - written - interviewed - assessed Expert's Duty Background information
Personal History - Family Details Education and Employment History Relationship History Medical/Psychiatric/History/Current Medication Alcohol/Drug History Legal History Perusal of Relevant Documentation Neuropsychological Assessment
Tests Administered Test Results General Cognitive Functioning - WAIS - III WAIS - IV subtests and scores Achievement v Ability: Literacy and Numeracy - WIAS - II Memory and Learning Auditory/Verbal Memory Visual Memory Attention and Concentration/Working Memory Speed Information Processing/performance speed Visuo-Perceptual/Visuo-constructional skills Speech/Language and Literacy Executive Functioning TEST - Taking EFFORT and Test Behaviour Summary Specific Opinion.
[19] Under cross-examination, Dr Jackson acknowledged she had not been required to comment upon any specific managerial direction [Transcript p. 1-18].
Parsons
[20] Parsons' evidence regarding his schooling was that he experienced difficulties in respect of Reading, Writing, English, Maths, Science, History and Geography, leaving school after grade 10 and part way through a course to help people with learning difficulties. He gave a history of his employment which included a number of unskilled and semi-skilled "blue collar" tasks. A history was also forthcoming regarding injuries he sustained at work including spinal fusion in 2003 which lead to a "solicitor" doing something that resulted in him receiving some money. He later obtained employment with Clay Pave where in the course of employment a fellow worker was killed and he was encouraged not to make comment about the accident for which his reward was to be given a number of tickets to operate various machinery. He obtained his driver's licence without completing a written exam. Whilst he received tickets for a grader, bobcat, small excavator and steamroller, he only retains at this time his forklift and frontend loader tickets.
[21] Parsons commenced employment with PPI Corporation Pty Ltd (PPI) with his original role being stacking and cutting metre lengths of plastic pipe which required paperwork to be completed, however he was unable to do that task and simply copied the page before, just changing the numbers so it looked like he had done something. He said that he did not understand the words he was copying. Training was provided to him in respect of operating machines at PPI which included the P10 machine.
[22] Parsons gave evidence regarding his relationship with Ward and of the assistance she provides due to his literacy problems. Ward does "all the paperwork and money stuff" and reads menu boards when they obtain food at drive throughs. He collects beer cans (23,000) and bricks (1,000) as a hobby and only recognises their origin from "looking at them" as he cannot read the names. When he trades or sells beer cans, Ward processes the exchanges through eBay. He is unable to use a refidex and when undertaking his current work as a lawn mower, he follows the "aeroplane pictures" to find the location of his work.
[23] The incident subject to the claim was said to have occurred on 31 October 2009 whilst Parsons was operating the P6 machine, a sometimes difficult machine to operate. The pipe keeps coming through the machine and operators are never allowed to stop the machines unless they get into trouble. On the shift in question, he had commenced work at 11.00 pm, at around 6.30 am he was required to remove a coil and whilst there was a forklift some "15 feet" away, he was not permitted to use it and was forced to manually lift it at which time the coil fell on him hurting his back. The incident was witnessed by Nolen who was helping him and another employee named "Amanu".
[24] On his departure from work at the end of shift he spoke to "the real big boss" [Magnabosco] telling him what had happened moving the coil and was told to "say nothing to no one, that he'll look after me". Parsons believed that as Magnabosco was his boss he would look after him. Over the next few days his back remained sore which led to him seeing a doctor at the hospital and in the course of the consultation informed the doctor he had hurt his back at home because that was what Magnabosco told him to say.
[25] Parsons received treatment in relation to pain management with some surgical intervention in the form of "nerve burning". Whilst he was off work he received no monies from PPI even though he had been told by Magnabosco that he would be looked after. At some stage he informed Ward that everything was "good and he's looking after me" although that was not true.
[26] Under cross-examination, Parsons was unable to confirm that the injury to his back occurred early on 31 October 2009 because he could not remember as it was a long time ago and he did not "know about times and dates" [Transcript p. 1-36]. He had told Magnabosco of the injury and how he had hurt his back [Transcript p. 1-37]. Parsons, in evidence had no idea on how many claims for workers' compensation he had made previously, and was taken through a claims history that included:
Paradise Food Industries - April 1991 - sprains and strains; Clay Pave - May 1992 - injury to finger; and Precast Concrete - July 1994 - foreign body in eye.
[27] In terms of the Precast Concrete injury, when questioned on receiving a payout for damages on 30 April 2002, Parsons could not remember the payment of $223,367.93 but remembered he did get some money [Transcript p. 1-39]. He accepted that if he hurt himself at work he was entitled to receive compensation.
[28] Other workers' compensation claims were identified as:
Wilson Parking - August 2007 - toxic substances; Ipswich City Council - June 1997 - spike in shin; and Ipswich City Council - August 1997 - shoulder injury.
Parsons' recollection of his workers' compensation history was vague and in some of the instances he gave evidence that the employer had submitted the claim forms [Transcript p. 1-39].
[29] Parsons was unable to agree to the date of the injury subject to the Appeal being 31 October 2009 but gave evidence that he never returned to the workplace after that shift [Transcript p. 1-41].
[30] Questions were put to Parsons regarding a visit to Dr Labrom in March 2011 that had been arranged by his solicitors where it was conceded he had told Dr Labrom:
that he had consistent back pain from the time of the incident; of a previous injury a long time ago; and that the injury (subject of the Appeal) happened at work [Transcript
p. 1-42].
[31] On his attendance at the Redcliffe Hospital at 9.13 am on 3 November 2009, Parsons accepted that he told the Triage Nurse that he had a fall on the Monday onto his left side hip and buttock and since then had pins and needles to his left side but he had lied because he did not want to get Magnabosco into trouble [Transcript p. 1-42]. Parsons had been in a lot of pain over the weekend and did not know why he had waited until after the weekend to attend the Doctor. Parsons accepted he had told the Doctor at the Redcliffe Hospital he had fallen the previous morning with immediate pain to the lower spine and the reason he lied was because Magnabosco told him not to tell anyone what had happened [Transcript p. 1-44].
[32] Parsons denied when he contacted Magnabosco on 3 November 2009 that he told him he had hurt his back in the garden, falling over some rocks [Transcript p. 1-44]. He attended Redcliffe Hospital again on 16 November 2009 complaining of low back pain informing the hospital he had a fusion done about five years ago. Parsons accepted that he had told a General Practitioner on 27 November 2009 that four weeks ago he fell at home and since then had experienced a lot of lower back pain. The reason he told this "massive lie" was "because of Danny [Magnabosco]. Got to look after the boss. He's my boss" [Transcript p. 1-48]. On a further visit to a General Practitioner on 29 December 2009, he informed that he had fallen off a chair on Christmas Day and had low back pain since then [Transcript p. 1-49] after which the medical investigation "kicked up a few cogs" which included a CT scan and a bone scan. Parsons was asked to respond to a history given at the time of the bone scan that "six years ago, had an injury at work", "fell when his bed collapsed a few months ago". Parsons said that a bed had collapsed a few months ago at a private hospital [Transcript p. 1-53].
[33] Parsons then went to see Dr Day, the Surgeon who had performed the spinal fusion, and gave him a history that "three months ago he poisoned some weeds at home and slipped and fell on his left hip whilst he was on a hill". He acknowledged he had lied to Dr Day "for Danny [Magnabosco]" [Transcript p. 1-54]. Parsons had no recollection of later informing Magnabosco that he hated "compo" [Transcript p. 1-55] and did not recollect telling him that he had made a claim through his house insurance for his injury. Ward and a doctor had filled out a claim through disability insurance but he never told Magnabosco about that, although he accepted the proposition that if had had not told him, Magnabosco could not have known about his insurance claim [Transcript p. 1-55]. A claim was eventually lodged for WorkCover and despite not being assisted as promised by Magnabosco he gave no evidence of having contacted him.
[34] Note: Parsons completed his cross-examination and after a brief re-examination, was excused but recalled later on the basis that the Regulator had been able to obtain documentation in the form of the "extrusion department production sheets" for the two shifts on 30 October 2009 that were prior to the shift worked by Parsons.
[35] On being recalled for cross-examination, Parson's confirmed previous evidence that Nolen was present when the injury to his back occurred and did not accept Nolen was not at work that morning [Transcript p. 1-74]. Parsons further confirmed previous evidence that on the shift in question he operated the P6 machine and that he wrote on the production sheet "stopped production at 12.40" which was something he merely copied from the previous production sheet [Transcript p. 1-75]. When questioned on the earlier shift production sheets, he acknowledged there was no reference to the machine having stopped production [Transcript p. 1-76]. Parsons did not accept the machine had stopped [Transcript p. 1-77]. He was also questioned on Exhibit 10 which indicated that his evidence of having previously copied shift information was not correct [Transcript p. 1-78].
[36] In re-examination, Parsons was questioned on whether it was normal to have information for a machine on three documents, giving evidence it depended on the run size [Transcript p. 1-79].
Ward
[37] Ward, the fiancé of Parsons, gave evidence she had known him for 18 years and in that time she managed the financial side of the relationship. Her background was in administration and during their time together noticed Parsons' "only difficulty" was his spelling which meant that if there were any applications or documentation to be completed she undertook the task.
[38] She first became aware that Parsons had injured his back when he called her at work on the Monday (2 November 2009) telling her he had a sore back that was hurt at work and he was going to see a doctor. He was initially given two weeks off work and when he returned to the hospital two weeks later he was referred to the Wesley Hospital. At that time she enquired as to what was happening with his pay to which he replied "That's okay I'm dealing with Danny [Magnabosco] about that". At the time her mother provided $5,000 to meet the Wesley hospital fees. In respect of their financial circumstances, she accessed some limited mortgage insurance and later assisted Parsons to rollover a number of superannuation funds. At some time down the track he claimed some "super money". At the time she was unhappy with PPI due to the fact Parsons had injured his back at work and should have been getting workers' compensation. She would email PPI with medical certificates issued (monthly) because Parsons needed to be on sick leave and she thought it would help with his WorkCover because he had a work injury.
[39] Under cross-examination, Ward confirmed the only dealings she had with PPI was to send the medical certificates to the human resources department. Her recall of the amount received by Parsons for damages in 2002 was about $50,000 in the hand and she was unaware of the before settlement amount as Parsons had managed most of the claim with his solicitors [Transcript p. 1-86]. Ward, apart from attending acupuncture with Dr Anand, did not accompany Parsons on his medical consultations [Transcript p. 1-87]. Ward did not accept that Parsons suffered any major injuries around Christmas 2009 when he had fallen off a chair and he only was checked by a doctor to make sure there was no further damage [Transcript p. 1- 87]. She did not believe his back was improving prior to the fall at Christmas 2009 [Transcript p. 1-89].
Nolen
[40] Nolen, an Extruder Operator, gave evidence of working the morning shift at PPI on 31 October 2009 taking over from Parsons on the P6 machine. As he was filling in his paperwork at the commencement of his shift, Parsons had requested Nolen's assistance to remove one of the coils from the winder because there was no forklift around at the time. As the attempted to slide the coil, it landed incorrectly on top of them with Parsons underneath the coil and whilst it caused Nolen no pain, Parsons had grabbed his back telling him he had been hurt. He commenced his shift at 7.00 am and ultimately completed the shift.
[41] Under cross-examination, Nolen could not recall when he was first asked about the events of 31 October 2009 but that "was much much later" after the event [Transcript p. 1-94]. Nolen confirmed his evidence that the P6 machine had continued to operate through the day and when questioned on the daily production summary sheet for the day which identified no production for that day, Nolen agreed the document normally recorded the production for a shift. Nolen did not accept the proposition he was not at work that day but was unable to explain why all the work he did that day was unrecorded [Transcript p. 1-95]. He admitted he was stumped as "he could have sworn" he was working line 6 on that day [Transcript p. 1-96]. In response to a question regarding his evidence he was "beavering away" working on machine P6 on the day in question was not correct he replied "it's not looking that way. No" [Transcript p. 1-97].
Dr Labrom
[42] Dr Labrom, an Orthopaedic Surgeon, undertook an examination of Parsons on 10 February 2011 resulting in the preparation of a medico-legal report [Exhibit 12] dated 7 March 2011 and further tendered was an Attendance Note [Exhibit 13] dated 19 November 2013. The clinical opinion offered by Dr Labrom was that Parsons had sustained a significant workplace injury on or around the end of October or the first week of November 2009. It appeared that he had sustained a significant aggravation of a pre-existing lumbar pathology that had included a prior L5-S1 spinal fusion. Dr Labrom went on to highlight the fact that Parsons had a previous spinal fusion and the stiffness at this segment predates his injury at either the end of October or early November 2009. In the Attendance Note, it was recorded that Dr Labrom opined that mechanistically, the injuries sustained by Parsons are less likely to occur by slipping and falling. It was far more likely that lifting a 400 kilogram coil would result in the pathology suffered by him as opposed to the slip and fall, as a result of the extreme forces involved in lifting something of that weight.
[43] Under cross-examination, Dr Labrom conceded the radiology investigations reference to his report did not reveal a discrete radiological injury and that his opinion was predicated upon the history given to him by Parsons [Transcript p. 3-4]. Dr Labrom confirmed that Parsons, in terms of the history provided, had not mentioned any actual injury occurring after the workplace event and certainly no history of a fall on Christmas Day 2009. Dr Labrom conceded if the General Practitioner had been prompted to ask for further investigations of another incident, this would have shown symptom fallout or symptoms resulting from that fall [Transcript p. 3-5]. Dr Labrom's evidence was that in the Attendance Notice he had not implied that the fall in the garden was ruled out as the cause of his symptoms, but it was more likely the lifting injury which would have caused a change in the symptoms ongoing [Transcript p. 3-6].
[44] In re-examination, Dr Labrom acknowledged that a report of Dr Albietz was of relevance in preparing his assessment and in particular, the admission of Parsons to the Wesley Hospital on 16 November 2009 which had confirmed the magnitude of the injury likely sustained.
Regulator
Dr Day
[45] Dr Day, an Orthopaedic Surgeon, examined Parsons on 26 February 2010 and prepared a report for his General Practitioner [Exhibit 14]. Dr Day had previously performed surgery on Parsons in 2001 in the form of an anterior discectomy at L5/S1 level, followed by an anterior fusion with a bone graft. The clinical examination on 26 February 2010 revealed there was:
pain on flexion and extension of the trunk; no neurologic deficit in the lower limbs; reduced range of movement in flexion and extension with mechanical
lower back pain; and no complaint of symptoms radiating to the lower limbs.
[46] This history given by Parsons regarding his recent significant symptoms was that "three months ago, he poisoned some weeds at home and slipped and fell on his left hip whilst he was on a hill. He developed severe pain and required admission to the Redcliffe Hospital". Dr Day opined that the complaint of pain at the time was consistent with the mechanism of injury described by Parsons as a "slip and fall".
[47] In respect of the radiology investigations considered by Dr Day in his report, his evidence was it would be unusual to have a disc protrusion with a previous anterior discectomy and fusion. The CT scan had shown his previous attempt at fusion was unsuccessful and that Parsons' own body had bridged the space anyway. With "99.5 per cent conviction" Dr Day ruled out any objective evidence of injury in the area of Parsons' lumbar spine had been identified in the MRIs, CT scans and bone scans.
[48] Under cross-examination, Dr Day's evidence was that he probably would see one patient a month that has aggravation injuries that are not shown up in radiology investigation and where the patient seems to have persisting severe symptoms and pain [Transcript p. 3-16].
Ohlbrecht
[49] Ohlbrecht was previously a Night Shift Supervisor at PPI and was undertaking that role in late 2009. He identified a message diary extract [Exhibit 16] as a document left in the office where supervisors left notes for Magnabosco if they needed something or repairs to machines.
[50] The particular extract (dated 3 November 2009) had recorded the following message
from Magnabosco to him "Wayne - Danny Parsons has hurt back at home. Will not
th
be back until at least 17 Nov". A couple of days later he rang Parsons who informed him that he had hurt his back working at home.
[51] Under cross-examination, Ohlbrecht gave evidence of being injured a couple of times in the course of his employment, but had made no workers' compensation claims with PPI picking up the medical expenses (if any)[Transcript p. 3-20]. Ohlbrecht was questioned on the Extrusion Department Production Sheets [Exhibit 11] where he confirmed the information was recorded by the operators and approved by the supervisor to confirm he had gone past and checked the coil [Transcript p. 3-21]. In a general sense, it was put that if a production sheet was wrong, would that error carry through to the diary and any other documents to which Ohlbrecht's evidence was that he would check the sheets at the start of the shift and if anything was wrong it would be changed [Transcript p. 3-24].
[52] Ohlbrecht was questions on a diary page for 31 October 2009 and a notation about the P10 machine where he acknowledged he had forgotten to write it in on that date but the person on the morning shift would have picked it up [Transcript p. 3-25]. He was further questioned with regards to the production sheet for 30 October 2009 which had the P6 machine having completed 110 millimetres of PN16 purple jacket and a changeover to electrical conduit pipe confirmed the content even though he had not signed off on the sheet [Transcript p. 3-27].
[53] In re-examination, Ohlbrecht's evidence was that the records showed on 31 October 2009 at 12.40 am the P6 machine had stopped production and there was no further production from that machine following the change over from 110 millimetre PN purple jacket to 125-140 electrical.
Magnabosco
[54] Magnabosco, an employee of some 29 years standing with PPI, knew Parsons as an Extrusion Operator in 2009. However, as the Extrusion Manager he did not see much of him. On 3 November 2009 he entered information in the work diary [Exhibit 16] of the phone call from Parsons informing him that he had hurt himself at home when he fell over some rocks and that he would be off work until at least 17 November 2009. The purpose of the entry was to notify Ohlbrecht (Parsons' supervisor). Magnabosco next saw Parsons a couple of weeks later when he brought in a medical certificate. Parsons, who was wearing a back brace at the time, said words to the effect that he had really hurt himself at work (which shocked Magnabosco) and not to worry about it because he hated "compo" and was claiming through some other insurance he had in the form of home insurance. Magnabosco told him they should report the injury to human resources but Parsons declined. Parsons also mentioned he was unhappy working on Ohlbrecht's shift. Magnabosco never heard of or saw Parsons until many months later when he was contacted by human resources who instructed him to place a note in the diary that Parsons was not allowed to return to work until there was a suitable duties program in place. At around that time he prepared a statement which outlined his account regarding what he knew about Parsons' injury.
[55] Magnabosco's only Saturday work was at the first of the month to do a stocktake or if called in for a major breakdown and did not believe he presented for work on 31 October 2009 although he could not be one hundred per cent sure. The stocktake was always done on the first of the month, even if it fell on a Sunday.
[56] Magnabosco, in commentary on Parsons' time card for the week commencing 27 October 2009, identified him absent (sick) on 27 October 2009 and of him having commenced at 10.13 pm on 30 October 2009 and finishing at 7.00 am the following morning. Parsons was absent on 2 November 2009 on sick leave. In relation to Extrusion Department Production Sheets [Exhibits 10 and 11], it was his evidence that on 30 October 2009 Parsons was operating the P6 machine which had stopped production at 12.40 am on 31 October 2009 because it would have been the end of the run. The change from one product to another in this case a PN16 to electrical 125 (140) could take three to six hours. The P6 machine had not started up after 12.40 am on that shift and would have been idle until 2 or 3 November 2009 which was confirmed in the daily production sheets for 31 October 2009,
[57] Magnabosco gave evidence in respect of daily summary sheets for 31 October and 1 November 2009 [Exhibits 20 and 21] where he was able to identify that on 31 October 2009 Nolen's name did not appear as an operator on any of the production sheets and for 1 November 2009 the production summary sheet clearly identified Nolen as having worked the afternoon shift on the P8 machine.
[58] A pay advice for Nolen [Exhibit 23] for the week ending 2 November 2009 identified him receiving eight hours of double time penalty rates which were identified in the production summary sheets as the shift undertaken on 1 November 2009. There was no other such penalty which would have applied had he worked the Saturday shift on 31 October 2009.
[59] Under cross-examination he confirmed he had been involved in gathering material in respect of this claim but this did not include time cards nor personnel files. He did however keep his own records regarding sick leave and this included Parsons [Transcript p. 3-48]. Evidence was given regarding Parsons' absence from work in the period 2 September 2009 and onwards to 16 November 2009 where it was recorded he had a "sore back, hurt at home" [Transcript p. 3-49]. In the records where it identified Parsons as having a "sore back, hurt at home" on 27 October 2009 that could have been an error [Transcript p. 3-50].
[60] The production summary sheets, according to Magnabosco were the result of entries from productions sheets and diaries, however there is no correlation between the production sheets and communications recorded at various times. The production sheets are checked firstly by the shift supervisor and then it goes to the general supervisor [Transcript p. 3-52]. Magnabosco conceded the material in the production sheets was only as good as the paperwork provided but if an operator incorrectly recorded the material produced, that would be picked up by going to the previous sheet [Transcript p. 3-53].
[61] Whilst he did not regularly work on Saturdays, the production schedule for the weekend would go up before he left work and if a production sheet happened to go missing over the weekend, it would come up "the following day or something like that" [Transcript p. 3-54]. The phone call from Parsons on 3 November 2009 was the first time he had heard that Parsons had hurt his back [Transcript p. 3-55]. The stocktake was confirmed as being undertaken on the first day of the month irrespective of what day it fell on [Transcript p. 3-55]. Magnabosco had no recall of being at work on 31 October 2009 and did not accept that Parsons had seen him there on that day and he "definitely" did not tell him [Parsons] not to tell anyone he had hurt his back at work and he would look after him [Transcript p. 3-56].
[62] In the second conversation he had with Parsons (when he visited the factory in a back brace) he did not tell him he would look after him because of his back injury but he would look after him if he was not happy on Ohlbrecht's shift. He accepted he had given Parsons his business card so he could keep in touch with him about his return to work [Transcript p. 3-57]. There had been no mention of "compo" apart from the fact that Parsons had mentioned his injury happened at work [Transcript p. 3-58].
[63] In re-examination, a statement prepared by Magnabosco on 30 November 2010 was tendered [Exhibit 25] said to have been completed after he was given statements to read from Needham and Nolen.
Submissions
Appellant
[64] The Appeal was made pursuant to s 549 of the Act which related to the rejection of Parsons' Notice of Claim for Damages having been made pursuant to s 275 of the Act. The claim contended he suffered an injury to his back in the course of his employment with PPI at 6.30 am on "a day in the last week of October or the first week of November 2009". There was no accepted claim for compensation for the injury and in those circumstances he was entitled to seek damages for the injury only if the Insurer decides he was a worker at the time of the injury and he sustained an injury.
[65] It is not disputed that Parsons was a "worker" and the issue to be decided is whether he sustained an injury within the meaning of s 32 of the Act. The issue for determination is whether it is more probable than not the personal injury arose out of, or in the course of, his employment.
[66] In terms of background, it was submitted that Parsons had a profound learning disorder with some auditory processing problems and his verbal intellect was abnormally lower than his non-verbal intellect. By virtue of his cognitive deficits, he is more likely to believe what people in authority tell him and as a result may act on what they have said because they are in authority.
[67] Parsons' evidence regarding the incident was whilst working a night shift at PPI on the P6 machine, he was manually removing a large coil of rolled pipe at around 6.30 am with the assistance of Nolen when the coil suddenly dropped at which time he felt immediate pain in his back. At the completion of the shift (7.00 am) he informed Magnabosco of the incident who advised him to not say anything to anyone about the work incident and he would look after him. Parsons complied with those instructions when attending the hospital and medical practitioners by not advising of a work injury.
[68] There was evidence supporting Parsons' claim from Nolen who was present at the time the injury occurred and was involved in the work task at the request of Parsons. His evidence supported the account given by Parsons including reference to him having grabbed his back and complaining he had been hurt. The material from Needham did not have him witnessing the event, hearing about the incident from Parsons and a person named "Mana" within two hours of it occurring. Sometime later he saw Parsons at work with a back brace on and said there was a conversation between Magnabosco and Parsons where it was said:
he could take what time he needed; the company would assist with medical bills; and there is no need to claim, it could be looked after down the track if need
be.
[69] Dr Labrom opined that it was far more likely the injury to Parsons' back occurred as a result of lifting the coil rather than slipping and falling.
[70] There was a question over the accuracy of the daily production sheet for the P6 machine with Parsons' evidence being that it was his practice to copy data from previous production sheets which did not accurately reflect the situation. Whilst it was conceded the notation "stopped production at 12.40" was in his handwriting, Parsons categorically denied that the machine did in fact stop production, but instead he had copied that notation from other sheets, consistent with his inability to correctly spell "production".
[71] There was argument that little reliance could be placed on the Daily Production Summaries given the undisputed evidence that those sheets are prepared from the collated Extrusion Department Production Sheets which themselves were not necessarily verified. The evidence of Ohlbrecht (Parsons' supervisor) was he had no way of knowing whether the Production Sheet for the P6 machine on the night was accurate.
[72] In terms of credibility, Parsons presented with limited cognitive ability having significant difficulties with comprehension, however there was corroborated evidence as to what occurred from two independent witnesses. Further corroboration can be found in Dr Labrom's evidence as to the causative nature of the injury.
[73] Conversely, Magnabosco presented with a bias against Parsons and with a propensity for providing extracts from records that supported his version of events. An example of this was Performance and Sick Leave Record produced by him that appears to have been completed in retrospect.
[74] It was not unusual for PPI to attend to medical expenses for injured workers without a claim for workers' compensation being lodged.
[75] In summary, it was submitted that Parsons' evidence ought to be preferred to that of Magnabosco as it was supported by independent witnesses and medical evidence.
[76] Finally it was submitted that the Appeal should be allowed with the Regulator ordered to pay Parsons' costs.
Regulator
[77] The submission identified the parameters of the issue as:
Parsons, at the time of injury, was employed by PPI as an Extrusion
Operator; the work entailed the operation of machines producing a variety of
plastic piping and tubing; it was in the course of those duties that Parsons claimed to have been injured when he was removing a large, heavy coil of pipe off the winder machine; and on the day of the accident Parsons was working the P6 machine.
[78] The case for Parsons was readily distilled to the following propositions:
he was injured as described (above); a fellow worker (Nolen) was present at the time of injury; Parsons reported the injury to Magnabosco soon after the accident happened but did not persist with any further notification procedure because Magnabosco told him he would look after him; and evidence of Dr Labrom confirms that the injury occurred as alleged in a
work setting rather than a fall at home.
[79] In dealing with each of the propositions, it was submitted that it will be established by the Regulator that Parsons had failed to discharge the onus which he bears in an Appeal such as these proceedings.
[80] The manner of the alleged injury was difficult for Parsons in that the injury was said to have occurred at 6.30 am on 31 October 2009 whilst operating the P6 machine when the production records reveal that the P6 machine was not operating at this time having been shut down for resetting. The handwritten production diary also records the shutdown without identifying a specific time. The credibility of Parsons' account was further compounded by an entry in the production records in his own handwriting showing the machine "stopped production at 12.40". The explanation by Parsons for this entry was that he had merely copied the same words from the P6 production sheet for the previous shift, however that previous production sheet revealed no such entry or writing.
[81] Nolen had asserted he worked the P6 machine on 31 October 2009 and described the incident in which Parsons was alleging occurred, however suffered some discomfort in cross-examination when it was put that the P6 had stopped at 12.40 am and the fact was he had not worked on 31 October 2009. Further evidence before the proceedings in the form of all production sheets confirmed his non-attendance on 31 October 2009 and the production sheet for 1 November 2009 revealed he worked the afternoon shift on the P8 machine. Payroll documentation for the relevant period had him being paid for one weekend shift only. The overwhelming weight of evidence supports the view that Nolen was simply not present at the workplace on 31 October 2009 to observe or participate in the subject incident.
[82] The first treatment sought by Parsons was at the Redcliffe Hospital on 3 November 2009 where the records inter alia "Fell yesterday morning onto left
side…immediate pain lower spine". The history of a non-work related home injury
was repeated relentlessly for time thereafter and as late as 26 February 2010 where
he told his treating Orthopaedic Surgeon Dr Day that:"Three months ago, he poisoned some weeds at home and slipped and fell onto his left hip whilst he was on a hill. He developed severe pain and required admission to the Redcliffe Hospital".
[83] The explanation from Parsons regarding the history of untruths was that Magnabosco requested him not to report the injury and he would "look after him" which was said to be simply nonsense. Aside from denying that allegation, Magnabosco gave evidence that he would not have been at work that day unless it was the first day of the month in order to conduct the monthly stocktake.
[84] The inherent improbability of this account from Parsons was enhanced by other aspects of evidence including:
Parsons had a lengthy history of workers' compensation claims, hence an
exposure and knowledge of this system and its potential benefits; he had successfully recovered a sum of money in respect of a workers'
compensation claim; Parsons failed over a period of six months to contact Magnabosco in
order to find out how he was going to "look after him"; and if Magnabosco had made the promise as alleged, why did Parsons seek
assistance from insurance through his "13 superannuation accounts".
[85] In terms of medical evidence, it was conceded by the Regulator that in appropriate cases, a medical specialist can look at a specific injury or condition and advance an opinion as to what is the more likely mechanism of injury. However in this case a different situation prevails with Dr Labrom having conceded that there was simply no objective evidence of any discrete injury. Similar evidence was forthcoming from Dr Day and with the lack of any objective evidence of injury, then the necessary consequence is the medical experts had to rely upon the factual history given by Parsons. The evidence of Parsons was argued to have a multitude of readily apparent problems with credit and reliability which must also infect the history provided by him to the medical experts.
[86] The medical records before the proceedings disclose that Parsons suffered at least one further non-work related back injury after 31 October 2009 which resulted in treatments from a General Practitioner and an investigation request for a fall on Christmas Day 2009. This history had never been provided to Dr Labrom.
[87] The psychological evidence regarding any intellectual deficit suffered by Parsons does not present a foundation for the Commission to safely accept Parsons' evidence and case. The untested evidence of the now deceased Needham was said not to be inconsistent with the account of Magnabosco.
[88] Finally it was submitted that the onus upon Parsons to demonstrate through both evidence and persuasion that the decision to reject his claim was wrong, for various reasons had not been met.
Conclusion
[89] For the purposes of the Appeal, it is not of question that on 31 October 2009 Parsons was, pursuant to s 11 of the Act, a "worker" engaged by PPI as an Extrusion Operator.
[90] The matters for determination in relation to the Notice of Claim for Damages lodged by Parsons on 28 May 2010 are:
did Parsons on 31 October 2009 suffer a personal injury; and if that personal injury (if suffered) arose out of, or in the course of, his
employment with PPI; and was the employment a significant contributing factor to the injury.
[91] A medico-legal report (dated 24 April 2013) was provided by Dr Jackson which offered the opinion that Parsons suffered a cognitive impairment which, amongst other things, could affect his social interaction, he may not be able to accurately remember information and would see people in authority as knowing more than him. The Regulator offered no competing evidence of this type in the proceeding but did in cross-examination, obtain the concession that Dr Jackson had not been required to offer comment with regard to managerial direction. In the preparation of the report, Dr Jackson had interviewed Parsons (who was unaccompanied) and relied upon the information provided by him in the course of the interview.
[92] The Commission accepts the findings of Dr Jackson which identified Parsons as having:
a borderline level of intellectual ability for his demographic which
represented a mild to moderate level of impairment; a Verbal Comprehension (VCI) borderline for his age representing a
mild to moderate impairment; a Perceptual Reasoning (PRI) that was average for both his age and specific demographic with the difference between the VCI and PRI scores being described as abnormal and only found in 1.6 per cent of people of similar standing. This was said to suggest the presence of a very profound verbal learning inability; other abnormal deficiencies that formed a pattern which suggests that Parsons had an average non-verbal intellect but showing mild to moderate impairment relative to his information processing; a moderate to severe impairment in his verbal acquired knowledge; a mild to moderate impairment of working memory and processing
speed; a capacity to conceptualise and reason that was not significantly
impaired to a level that would render him "intellectually incapacitated"; low level of numeracy and literacy that suggested difficulties acquiring
basic literacy in primary school; and a reasonable memory for information he hears and his retention of
previously acquired information may be relatively sound.
[93] The report however does not, in my view, deliver a finding that would allow for a conclusion that Parsons does not have a capacity to function adequately in both the workplace and community, albeit he may have some deficit which would likely have him at the lower end of the scale.
[94] Parsons portrays a rather different aspect of his functioning in that he had a total reliance on Ward in terms of all administrative and financial arrangements within the relationship, yet in Ward's evidence she was unable to recall the gross amount ($223,367.93) received by Parsons as a settlement for a work-related damages claim which, in a reasonable person's terms, would have been a quite significant event in one's life and in particular, in 2002 when such amount would be substantially more valued than the present. Ward recalled Parsons received about $50,000 in the hand with the more telling of her evidence being that Parsons had managed the dealings around the claim with his solicitor without any involvement from her and that he had never told her about the gross amount of the settlement.
[95] Further, on Parsons' capacity to function, the question was put to Ward in her evidence-in-chief of her relationship with him "and during that time did you notice any difficulties that Mr Parsons had?". Ward's response was clear and to the point:
"The only difficulty I really noticed was his spelling. He's never really been able to spell. Being - I've always been in an office environment so I've always been doing the administrative side. To me, he was just a labour - a labour- intensive fellow, and I was the one that did everything. It was just mainly his spelling that I - yeah."
[96] The evidence of Ward was absent of reference to any other difficulty such as those disclosed in Dr Jackson's report and in the mind of the Commission, as a person having lived with Parsons for 18 years, she would have been well placed to have observed any traits that may have affected his capacity to function, yet offered nothing other than the difficulty with his spelling.
[97] Parsons placed significant reliance upon being told by Magnabosco not to tell anyone that he was hurt at work and that he would be looked after. However six months after 31 October 2009 when he had received no income, he made no attempt to enquire of Magnabosco how he was going to be helped financially. In previous employment it was his evidence that he was rewarded with a number of machine operator tickets for keeping quiet about an incident causing the death of an employee. In that case, if the evidence is factual, Parsons "collected" on the offer of the employer, but in this case never sought to follow up on Magnabosco's alleged promise.
[98] Another facet of Parsons' functionality identified by Dr Jackson was to defer to authority therefore that person would be considered to have some standing and this was embraced by Parsons as the reasoning for his acceptance of the alleged promise of Magnabosco to look after him. When Parsons went to see Dr Day in February 2010 he appeared not to be bothered by "lying" to Dr Day about the cause of his injury. Dr Day, it must be recalled, performed a significant medical procedure in the form of spinal fusion on Parsons previously and it is difficult to accept that Dr Day would not be regarded as a person of some standing, yet that appears not to be the case, where Parsons clearly did not defer in this instance to Dr Day's authority, contrary to Dr Jackson's opinion.
[99] This evidence, when considered globally, certainly raises the question of weight to be applied to the heavily relied upon assertions around Parsons' incapacity to function and the Commission is inclined to find that Parsons had attempted to "over play" what disabilities he may have to benefit himself in the course of the Appeal with his attempt not supported by evidence.
[100]The evidence from Parsons regarding the causation of the injury was that at 6.30 am on 31 October 2009 whilst removing a coil from the P6 machine, assisted by Nolen, the coil fell on him causing injury to his back. Nolen gave evidence to that effect.
[101]The difficulty for Parsons was the documentation relating to the production of the P6 machine from the night shift on 30 October 2009 recorded (in Parsons' own handwriting) that the machine "stopped production" at 12.40 am on 31 October 2009. Parsons relied upon his literacy difficulties to explain the written notation, giving evidence that he had copied off the production sheet from the previous shift. Documentation from the previous shift on 30 October 2009 contained no such notation.
[102]Nolen's evidence was he commenced the morning shift on 31 October 2009, assisted Parsons with the coil, and spent the entire day operating the P6 machine. Documentation tendered in the proceeding did not record any production for the P6 machine on 31 October 2009 (beyond being stopped at 12.40 am) nor the presence of Nolen at work on that day. Further documentation had Nolen working afternoon shift on 1 November 2009 operating the P8 machine and his pay information for the week ending 2 November 2009 had him completing just one weekend shift which would have been the 1 November 2009 shift. When these matters were put to Nolen, he was visibly "flustered", indicating he was "stumped" by what was being put to him but continued to hold his position.
[103]On the documentary evidence alone, it is safe to conclude that the P6 machine operated by Parsons at the commencement of the night shift on 30 October 2009 ceased production at 12.40 am on 31 October 2009 remaining inoperative through to at least the following shift, therefore it was not possible for the version offered by Parsons relating to the coil to be accepted as factual. The evidence of Nolen was totally discredited as a result of the previously mentioned documentation and as such, was of no assistance in support of Parsons. It is not by intention to canvas whether the version offered by Parsons and Nolen around the removal of the coil from the P6 machine on the morning of 31 October 2009 was a fabrication or otherwise, suffice to say their version was undone by the PPI documentation tendered in the proceedings.
[104]In terms of that documentation, despite some tardiness in the discovery of the said documentation due mainly to PPI having gone into liquidation, the Commission is prepared to accept the authenticity of all such documentation with the acceptance of the "performance and sick leave record" [Exhibit 24] that had been kept and recorded privately by Magnabosco. There was a suggestion from Counsel for Parsons in respect of a notation "sore back at home" having been added later, rather than contemporaneously and for that reason the Commission has placed no reliance on that document.
[105]The medical records show from the outset that Parsons, in presenting to the Redcliffe Hospital on 2 November 2009, identified causation of his injury as occurring at home rather than a work-related incident and being contemporaneous the Commission places significant weight upon that version offered by Parsons. At a time three months beyond 31 October 2009 he was still relying on the same causation when consulting with Dr Day. The Commission finds no basis upon which to accept this version was as a consequence of a direction from Magnabosco in that the Commission finds Magnabosco the more credible of the witnesses around this issue and, more to the point in all likelihood having discounted the evidence of Parsons around the incident of 31 October 2009, it is more probable than not Magnabosco was not even at the workplace on the morning of 31 October 2009.
[106]The specialist medical evidence of Dr Labrom was supportive of the version given by Parsons however he placed faith in the history offered by him and in all circumstances, Parsons in this area has been found to be at best, unreliable. Dr Day offered an opinion that the incident causative of the injury was the event that occurred at home, again with some reliance upon a different history provided, albeit at a time closer to the date of injury. Common ground existed between the medical specialists in that radiology investigations had failed to reveal a discrete injury had been suffered by Parsons.
[107]Therefore, the Commission is unable to conclude that the evidence of the medical specialists is sufficient in nature to support a finding that an injury was sustained by Parsons as a result of a work-related activity.
[108]The evidence regarding Parsons' prior workers' compensation history is of relevance to the extent it would strongly indicate a level of knowledge and understanding of making applications for compensation and with it the inherent requirement in the first instance to nominate the work-related event at the time of seeking the initial medical treatment. In this particular case Parsons consistently identified an event in the home as being causative of his back injury and it is more likely than not the later version of the work-related event was an afterthought that consequently was not supported by evidence in the course of the proceedings.
Finding
[109]Upon consideration of the evidence, material and submissions before the proceedings, the Commission finds that:
Parsons was at the relevant time (31 October 2009) a "worker" pursuant
to s 11 of the Act; Parsons sustained a personal injury for which the initial medical
treatment was provided at the Redcliffe Hospital on 3 November 2009;
Parsons failed to establish on the balance of probabilities that the personal injury occurred as a result of undertaking a work-related activity on 31 October 2009 whilst in the employ of PPI; and
the failure to establish that a personal injury suffered by Parsons arose out of, or in the course of, employment pursuant to s 32 of the Act means that his employment was not a significant contributing factor to the injury.
[110]The Appeal is dismissed and the decision of Simon Blackwood (Workers' Compensation Regulator) of 23 May 2013 to reject Parsons' Notice of Claim for Damages is confirmed. The claim is not one for acceptance.
[111] Parsons is to pay the Regulators costs of and incidental to the Appeal.
[112] I order accordingly.
Decision
[1] On 20 June 2013 Daniel Parsons (the Appellant) lodged with the Industrial Registrar a Notice of Appeal pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Q-COMP Review Unit (Q-COMP) released on 24 May 2013. Since the filing of the Appeal, a number of amendments have been made to the Act which include the Respondent to the Appeal being abolished and from 29 October 2013, the new name replacing Q-COMP is that of Simon Blackwood (Workers' Compensation Regulator) (the Regulator) who, in turn, becomes the Respondent to the Appeal.
[2] The decision of the Regulator was to confirm the decision of WorkCover to reject the Appellant's Notice of Claim for Damages in accordance with s 32 of the Act.
[3] In terms of further background, the Appellant lodged an Application for Workers' Compensation on 28 May 2010 for a back injury, however that application was determined to be out of time and that decision was subsequently confirmed by Q-COMP. He then lodged an application in the form of the Notice of Claim for Damages for back and psychological injuries which is the subject of this Appeal.
Relevant Legislation
[4] The Legislation pertinent to this Appeal is 32 of the Act:
"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."
Nature of Appeal
[5] The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant.
Standard of Proof
[6] The standard of proof upon which an Appeal of this nature must be determined is that of "on the balance of probabilities".
Evidence
[7] In the course of the proceedings, evidence was provided by eight witnesses.
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