Pope v Simon Blackwood (Workers' Compensation Regulator) - [2015] QIRC 170

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Pope v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 170
PARTIES:	Pope, Peter (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent)
CASE NO:	2015/WC000171
PROCEEDING:	Appeal against decision of the Workers' Compensation Regulator
DELIVERED ON:	23 September 2015
HEARING DATES:	24 & 25 August 2015
HEARD AT:	Brisbane
MEMBER:	Industrial Commissioner Neate
ORDERS:	1. The appeal is allowed. 2. The decision of the Regulator is set aside. 3. The Regulator is to return the Appellant's application for compensation to WorkCover to determine the period for which the incident on 21 November 2014 continued or continues to aggravate the Appellant's personal injury. 4. The Regulator is to pay the Appellant's costs of and incidental to the appeal to be agreed or, failing agreement, to be subject of a further application to the Commission.
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION - physical injury - claim that injury was aggravated by forklift stopping unexpectedly - whether incident occurred - whether incident was a significant contributing factor to worker's injury - appellant bears onus of proof on balance of probabilities
CASES:	Adelaide Stevedoring Company Ltd v Forst (1940) 64 CLR 538 Davidson v Blackwood [2014] ICQ 008 Fernandez v Tubemakers of Australia (1975) 2 NSWLR 190 Gaudry v Pacific Coal P/L [1996] QCA 525 Kudryavsteva v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 053 MacArthur v WorkCover Queensland (2001) 167 QGIG 100 Qantas Airways Ltd v Q-Comp and Michelle Blanch [2009] 191 QGIG 115 Queensland (Queensland Health) v QComp and Beverley Coyne (2003) 172 QGIG 1447 Thorpe v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 22
APPEARANCES:	Mr C. Newton, Counsel instructed by Turner Freeman Lawyers for the Appellant. Ms D. Callaghan, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent.

Decision

Peter Mark Pope ("the Appellant") is employed as a storeperson by Costa Fresh Logistics P/L and Polar Fresh Investments P/L ("Polar Fresh") in its warehouse at Parkinson. His work includes operating Reach fork lifts. He claims to have incurred an injury to his neck as a result of an incident in the course of his work at his place of employment on 21 November 2014. He has not worked since then.
By decision dated 11 June 2015 and sent to the Appellant on 12 June 2015, the Workers' Compensation Regulator ("the Respondent") confirmed the decision of WorkCover Queensland ("WorkCover") to reject his application for compensation in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act").
The Appellant has appealed to the Queensland Industrial Relations Commission ("the Commission") in respect of that decision. He originally sought to have the decision set aside and the Commission order that:
(a) the Appellant's applications for compensation be allowed; or
(b) the file S13LC136779 (the initial injury event) be reopened and further that the medical certificates provided in S13UV156233 (the second injury event) be considered conformably with the Act within S13LC136779.

In submissions made at the conclusion of the hearing, the Appellant sought…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] QIRC 170
Decision Date: 23 September 2015

CaseChat Overview and Summary

The matter before the court involved an appeal against a decision by the Workers' Compensation Regulator regarding a claim for compensation by the Appellant, who alleged that his physical injury was aggravated by an incident involving a forklift stopping unexpectedly. The court was required to determine whether the incident occurred and whether it was a significant contributing factor to the Appellant's injury. The Appellant bore the onus of proving, on the balance of probabilities, that every relevant element of the definition of "injury" in section 32 of the Workers' Compensation Act was satisfied.

The court assessed the evidence presented, noting that the forklift did not hit an expansion joint on the floor, and there was no mechanical fault with the forklift that could have caused it to stop unexpectedly. The court also observed that there was no CCTV footage of the incident, despite a camera being present in the area. The Appellant had to demonstrate that the forklift stopping unexpectedly was a significant contributing factor to his injury, as per the statutory definition.

The court concluded that the Appellant had not met the onus of proof, as the evidence did not support the occurrence of the incident as described, nor did it establish that the incident was a significant contributing factor to the Appellant's injury. Consequently, the appeal was allowed, the decision of the Regulator was set aside, and the matter was returned to WorkCover for further determination regarding the period for which the incident continued to aggravate the Appellant's injury. The court also ordered the Regulator to pay the Appellant's costs of and incidental to the appeal.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the Regulator is set aside.

3. The Regulator is to return the Appellant's application for compensation to WorkCover to determine the period for which the incident on 21 November 2014 continued or continues to aggravate the Appellant's personal injury.

4. The Regulator is to pay the Appellant's costs of and incidental to the appeal to be agreed or, failing agreement, to be subject of a further application to the Commission.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Assessment of the evidence: The only plausible suggestion for the forklift stopping unexpectedly is that one (or both) of the dead man pedals was released. Why that occurred was not explained, but was the subject of some speculation. Three brief observations about the evidence about the circumstances surrounding the incident are appropriate:(a) Although some witnesses referred to the existence of narrow expansion joints between slabs of concrete on the workplace floor, there was no evidence that the forklift came to an unexpected stop as a result of hitting a bump created by the filling of an expansion joint. At most, the Appellant speculated that if the forklift had hit an expansion joint the consequent bump might have redirected his weight to one side so that one of his feet came off a pedal, thus activating the brake.(b) The forklift was inspected, and both parties accept that there was no mechanical fault which would have given rise to the forklift stopping unexpectedly in the way described by the Appellant.(c) Despite the fact that there is a CCTV camera in the area where the incident occurred, there is apparently no CCTV footage of the incident. There is evidence that on 21 November 2014 the Appellant enquired of his employer whether such footage existed.The meaning of "injury" and the conduct of the appeal The issues in this appeal must be resolved by reference to the relevant provisions in s 32 of the Act. At the relevant time, those provisions stated: "32 Meaning of injury(1) An injury is personal injury arising out of, or in the course of, employment if—(a) for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or This appeal was conducted as a hearing de novo. The Appellant bears the onus of proving on the balance of probabilities that every relevant element of the definition of "injury" in s 32 of the Act has been satisfied. In other words, he has to prove that his condition falls within that definition of "injury."[1][1] State of Queensland (Queensland Health) v QComp and Beverley Coyne (2003) 172 QGIG 1447. By consent, a series of medical reports and other medical records at various dates throughout 2014 were tendered (Exhibit 1). None of the authors of those documents gave oral evidence, and the documents provide background to the injury sustained by the Appellant and the treatment he received. In summary, it is apparent that the Appellant was treated for muscular pain in his neck and shoulder until at least 21 August 2014 when the MRI scan of his neck disclosed the bulge at C3/4. Even then it was some weeks until, following the successful CT nerve root block was administered on 26 September 2014, Dr Gatehouse was satisfied that this was "the area of concern." The only doctor to give oral evidence was Dr Gatehouse, whose reports are referred to and quoted earlier in these reasons. As already noted, Dr Gatehouse sent a report to WorkCover dated 19 September 2014 in which he advised that investigation excluded the Appellant's symptoms being attributed to his shoulder joint or subacromial region. An MRI scan had demonstrated a degenerative disc at C3/4 where there was a "diffuse bulge." There was also "minor encouragement onto the neuroforaminal but without significant impingement or compromise." According to Dr Gatehouse, it was "likely that the changes at C3/4 are pre-existent and a component of his pain may be considered an aggravation. He is likely to have further musculoligamentous injury. This would be considered a new injury." (Exhibit 5)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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