Proserpine Nursing Home Incorporated v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 179
•4 November 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Proserpine Nursing Home Incorporated v Simon | |||
| Blackwood (Workers' Compensation Regulator) | ||||
| [2014] QIRC 179 | ||||
| PARTIES: | Proserpine Nursing Home Incorporated | |||
| (Appellant) | ||||
| v | ||||
| Simon Blackwood (Workers' Compensation Regulator) | ||||
| (Respondent) | ||||
| CASE NO: | WC/2014/20 | |||
| PROCEEDING: | Appeal against decision of Simon Blackwood | |||
| (Workers' Compensation Regulator) | ||||
| DELIVERED ON: | 4 November 2014 | |||
| HEARING DATES: | 20 and 21 May 2014 | |||
| 5 August 2014 (Regulator's submissions) 18 August 2014 (Appellant's submissions) 25 August 2014 (Regulator's submissions in reply) | ||||
| MEMBER: | Industrial Commissioner Fisher | |||
| ORDERS: | 1. The appeal is dismissed. | |||
| ||||
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Employer sought review - Employer bears onus of satisfying Commission decision wrongly made - Whether the injury (or aggravation) arose out of or in the course of employment - Whether employment was a significant contributing factor - Employer must establish on the balance of probabilities that one or both of these elements do not apply - Finding worker sustained an aggravation to her back injury - Injury arose out of her employment and employment was a significant contributing factor - Appeal dismissed. | |||
| CASES: | Workers' Compensation and Rehabilitation Act | |||
| 2003, s 32 | ||||
| State of Queensland (Queensland Health) AND | ||||
| Q-Comp AND Beverley Coyne (2003) 172 QGIG 142 | ||||
| Yarrabee Coal Company Pty Ltd v Simon Blackwood | ||||
| (Workers' Compensation Regulator) [2014] QIRC 156 | ||||
| APPEARANCES: | Mr A.W. Collins, Counsel instructed by Sparke Helmore Lawyers for the Appellant. Mr A.B. Johnson, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator). | |||
| Decision |
[1] Sharon Goodall is employed as a Laundry Attendant at the Proserpine Nursing Home Incorporated (the Employer). She made a successful claim to WorkCover Queensland (WorkCover) for a back injury sustained on 11 July 2013 (the second injury).
[2] The Employer sought a review of this decision. On review, the Workers' Compensation Regulator (the Regulator) confirmed WorkCover's decision to accept Ms Goodall's claim for compensation for a back injury. The Employer appeals against this decision to the Queensland Industrial Relations Commission (the Commission).
[3] It should be noted that Ms Goodall made a claim to WorkCover earlier in 2013, also for a back injury. That claim was unsuccessful, however, on review, the Regulator decided to set aside the decision of WorkCover and substituted a new decision to accept Ms Goodall's application for compensation. That decision was appealed by the Employer and was considered by the Commission as constituted in Case No. WC/2013/400. The Commission's decision on appeal, which is released concurrently with this decision, found the first injury arose out of Ms Goodall's employment and employment was a significant contributing factor to it.
[4] By consent, the Commission undertook a view of the laundry and the collection and delivery points within the nursing home on 21 May 2014.
The Evidence
[5] The brief facts of the matter are that Ms Goodall returned to work on 17 June 2013 after sustaining the first injury.
[6] On 10 July 2013, Ms Goodall finished her shift early as she was unwell. The following day she went to work as usual and prepared for the day. As there was an outbreak of scabies, precautions were taken in relation to the handling of clean and infectious laundry. One of her tasks was to bag the clean laundry in big bags. After that task had been completed, Ms Goodall went about her normal duties in the laundry to fold the white linen.
[7] Mid-morning Ms Goodall reported to Madlyn Mayne, her co-worker, that she was not feeling well. Her back was sore, her legs were burning and she was feeling sick. Ms Goodall said Ms Mayne encouraged to keep going but to take it easy. By lunch at 11.30 a.m., Ms Goodall told Ms Mayne she had to go home, however, Ms Mayne told her to have lunch and rest to see whether she felt better. After lunch Ms Goodall said she needed to find Faylene Cook, the Hospitality Manager as she was not feeling well.
[8] Ms Goodall could not immediately find Ms Cook. When Ms Cook was alerted by other workers that Ms Goodall had been looking for her, she went to the laundry. Ms Goodall told her that her back was sore, she was not feeling well, she was hot in the head and her legs were burning. Ms Cook told her to complete a Non-Resident Incident and Investigation Report Form (Incident Report Form) and take it to the General Manager, Tom Saide. She went to the cleaners' station to do this but rushed through it as she was anxious to go home.
[9] After completing the Incident Report Form, Ms Goodall also completed her time sheet and took both documents to Mr Saide who advised her to see her doctor. Ms Goodall attempted to get an appointment that day but was unable to secure one until the following day.
[10] Under cross-examination, Ms Goodall denied she had been pulling washing out from the washing machine when she felt the pain. She said the pain had occurred when she was loading the dryer. She agreed there was nothing unusual about the weight of the washing or the manner in which the dryer was loaded when she felt the pain.
[11] Ms Goodall was taken to the Incident Report Form which shows that the incident occurred at 12.30 p.m. She agreed she told Ms Mayne earlier in the day that she was feeling unwell and had a sore back. However, she said Ms Mayne was out of the laundry on a delivery when she was loading the washing from the trolley into the dryer at 12.30 p.m.
[12] Ms Goodall said that her feeling hot in the head built during the day and at 12.30 p.m. she felt nerve pain in her back and her legs dropped from underneath her. Ms Goodall agreed that she told her General Practitioner, Dr Carey, the symptoms she had felt in the morning prior to moving the washing.
[13] Ms Mayne agreed under cross-examination that Ms Goodall had reported that she was feeling a bit hot and her back was sore but did not say she had hurt her back pulling the washing out. She told Ms Goodall to go home and reported the matter to Ms Cook. Ms Cook confirmed in her evidence that the first she heard of the matter was when she was informed by Ms Mayne when she was signing off from work for the day at 1.30 p.m.
[14] Mr Saide said Ms Goodall had brought the Incident Report Form to him on 11 July 2013 and he later followed up the matter. His record of what happened is recorded on the form as follows:
"Madlyn said that Sharon had complained her back was sore earlier in the day. Sharon was removing clothes from the spring loaded trolley into the dryer when she said her head felt hot and her back was sore. Sharon came to see Tom (GM) who asked her to go to the Dr."
[15] Mr Saide noted on the form that he was unable to identify any unsafe acts or conditions. He recorded the "root cause" as "suspect some previous non-work injury". Mr Saide also said in his evidence Ms Goodall was unable to inform him what act had caused the injury.
[16] On 12 July 2013, Ms Goodall consulted Dr Eleanor Carey, a General Practitioner with the practice, Whitsunday Doctors Service. In the medical notes Dr Carey recorded:
"Patient presents with acute on chronic back pain. Started whil (sic) lifting
while twisting."
[17] In her evidence Dr Carey said Ms Goodall told her she was "lifting a heavy bag of wet washing and she had to lift that out of the washing machine and twist to put it into the dryer or onto a table - or trolley I think she said."
[18] On examination, Dr Carey found that Ms Goodall had a good range of movement and no neurological abnormalities were detected. She prescribed Ms Goodall analgesics and recommended physiotherapy.
[19] As a result of the information provided by Ms Goodall and having physically examined her, Dr Carey provided a workers' compensation medical certificate which stated that the cause of injury was "lifting wet washing into dryer". Dr Carey certified the injury was consistent with the workers' description of the cause. Subsequent medical certificates were also issued by Dr Carey in the same terms. On 6 September 2013, Dr Carey recorded that Ms Goodall's back pain was much improved.
[20] Dr Carey responded to written questions asked by WorkCover on 31 July 2013. Dr Carey stated that she considered Ms Goodall's symptoms to be an aggravation of a pre-existing injury and that she expected the aggravation to cease within six weeks of the aggravation.
The Parties' Positions
[21] The Employer's case is that there was no work related event on 11 July 2013 that caused Ms Goodall's symptoms. Ms Mayne gave evidence that she did not witness any event that caused the injury to Ms Goodall. Her symptoms had been present before any incident with the dryer occurred and she had not reported the later symptoms to Dr Carey. Further, and in the alternative, any symptoms suffered by Ms Goodall on 11 July 2013 were either a continuation of the non-work related injury on 31 May 2013 or were unrelated to her back complaint. It was noted that Ms Goodall's time sheet showed she had gone home sick on 10 July 2013.
[22] The Regulator submits that the second injury can be attributed to Ms Goodall's employment as a result of her being exposed to tasks which comprise her work activities and duties. These tasks are physically demanding and involve bending, twisting and lifting. In the Regulator's submission, the Employer has not displaced the proposition that her work activities were a significant contributing factor to the second injury.
Conclusion
[23] On appeal, an appellant bears the onus of satisfying the Commission that the
1
Regulator's review decision was wrongly made. In an appeal brought by an
employer the worker is not required to establish by their evidence the elements of
2
injury in s 32(1) or s 32(3) of the Act. It is for the Employer to establish on the
balance of probabilities that Ms Goodall's injury did not arise out of or in the course
of employment or that employment was not a significant contributing factor. If the
Employer is unable to satisfy the Commission on one or both of these elements, then
the Commission must find that Ms Goodall's injury falls within s 32(1) or s 32(3) of
3
the Act. The worker continues to receive the benefit of the review decision until 4
that is displaced.
[24] There is no dispute that Ms Goodall was a worker or that she sustained a personal injury. The Employer has put in issue whether the injury (or aggravation) arose out of or in the course of employment and whether employment was a significant contributing factor to the injury.
[25] The Employer put forward a number of arguments in support of its contentions which are outlined in paragraph [21]. These arguments are dealt with in turn.
[26] The Commission does not accept the Employer's submission that Ms Goodall completed the Non-Resident Incident and Investigation Report Form on 24 July 2013. While this is the date shown on the form as the investigation date, the evidence from Ms Goodall is that she completed the form on the day of the incident, viz., 11 July 2013. Further, I consider the evidence from Mr Saide was that Ms Goodall completed the front page of the form on 11 July 2013 and he completed the second page during his investigation on 24 July 2013. He explained his discussion with Ms Goodall, what she described had happened and how she was feeling. Further, he advised her to go to the doctor. That Ms Goodall completed the form on 11 July 2013 is supported by her response of "Off to doctors" to the question, "Describe Immediate Action/Treatment Taken". Had she completed it on 24 July 2013, then it is unlikely she would have responded with her intended action.
[27] The Employer supports its submission by noting the absence of any witness to the incident and Ms Goodall's reports earlier that morning of experiencing a number of symptoms other than back pain. In addition, Ms Goodall did not notify Dr Carey of the nerve pain in her back and her legs dropping out from underneath her. The Commission accepts that these submissions reflect the evidence but do not establish that there was no work-related event.
[28] Although there is a conflict in the evidence of Ms Mayne and Ms Goodall as to whether Ms Goodall reported how she had hurt her back, it is clear that she told Mr Saide on 11 July 2013 she was loading the dryer. This was the activity that caused her back to become so painful that she could not continue working.
[29] The evidence establishes the following procedures in the laundry. Wet washing is pulled out from the machine and placed in a large plastic bucket, which has a spring loaded base, and is on wheels. The Laundry Attendant then pushes this trolley to the dryer. As the washing is taken out of the trolley the base lifts so that the contents are kept at a reasonable working height and the Laundry Attendant does not have to bend over too far to reach the laundry. Although the height of the trolley is about the height of the dryer opening, the actions involved in removing the laundry from the trolley and loading it into the dryer involves lifting and twisting the body. Ms Mayne's evidence confirmed that twisting is involved but if the feet are in the right position, a half twist is undertaken.
[30] Mr Saide was critical of the fact that Ms Goodall could not precisely identify the mechanism of injury. However, the evidence establishes that the activity in which Ms Goodall was engaged of loading the dryer involves twisting the body.
[31] Dr Carey stated that the injury was consistent with Ms Goodall's stated cause "lifting wet washing into dryer".
[32] The Employer asserted that further, or in the alternative, Ms Goodall was most likely affected by the same condition that ailed her on 10 July 2013, when she went home from work before her scheduled finishing time. This proposition was not put to Ms Goodall in cross-examination with the result the Commission has no evidence as to whether the symptoms experienced by Ms Goodall on 11 July 2013 were the same as those experienced on 10 July 2013. In the circumstances the Commission is unable to accept this submission by the Employer.
[33] The evidence from Dr Carey establishes that Ms Goodall's back symptoms persisted and she received treatment for her back for a period of about a month. In my view, the existence of the symptoms for this period suggests that the back condition was not transitory or related to other symptoms of ill health.
[34] The Regulator submits that the injury could be a fresh injury or an aggravation of a pre-existing injury. The Employer's submission did not address this question. Rather, the Employer contended there was no work related event on 11 July 2013 that caused Ms Goodall's symptoms.
[35] The only medical evidence relating to this injury is that of Ms Goodall's treating General Practitioner, Dr Carey, when she responded to WorkCover on 31 July 2013 that the injury sustained on 11 July 2013 was an aggravation of a pre-existing injury.
[36] Ms Goodall had a previous back condition prior to 11 July 2013. The Commission accepts that Ms Goodall was experiencing various symptoms including back soreness prior to the alleged incident. Although no witness was present to see whether or how the injury occurred, it is clear that loading wet washing into the dryer is a task which Ms Goodall performs on her rostered shift. The evidence from Ms Goodall and Ms Mayne also establishes that that task involves twisting the body. Further, Ms Goodall reported her back condition to Ms Mayne and Mr Saide and also told the latter the activity she was engaged in when the back became so painful that she needed to cease work. The medical records show that the injury persisted for some weeks.
[37] In the circumstances the Commission finds that Ms Goodall sustained an aggravation to her back injury on 11 July 2013 as a result of loading wet washing into a dryer. It follows that the aggravation injury arose out of her employment and employment was a significant contributing factor.
[38] The appeal is dismissed and the decision of the Regulator is confirmed.
[39] The Employer is to pay the Respondent's costs of and incidental to this appeal or failing agreement to be the subject of a further application to the Commission.
[40] Order accordingly.
1 State of Queensland (Queensland Health) AND Q-Comp AND Beverley Coyne [2003] 172 QGIG 1447,
1448.
2 Ibid.
3 Yarrabee Coal Company Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC
156 [15].
4
Ibid.
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