Proserpine Nursing Home Incorporated v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 178
•4 November 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Proserpine Nursing Home Incorporated v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 178 |
PARTIES: | Proserpine Nursing Home Incorporated v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2013/400 |
PROCEEDING: | Appeal against decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 4 November 2014 |
HEARING DATES: | 20 and 21 May 2014 |
MEMBER: | Industrial Commissioner Fisher |
ORDERS: | 1. The appeal is dismissed. 2. The decision of the Regulator is confirmed. 3. 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. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Employer appeal - Whether the injury arose out of or in the course of employment - Whether employment was a significant contributing factor - Medical evidence - Appellant/Employer bears onus of proof - Balance of probability - No specific incident occurred - Medical evidence supports condition - Determined injury arose out of employment and employment was a significant contributing factor - Appeal dismissed. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 11, 32 State of Queensland (Queensland Health) AND Q‑Comp AND Beverley Coyne (2003) 172 QGIG 142 Taylor v Q-COMP and King (2008) 187 QGIG 105 Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48 |
| APPEARANCES: | Mr A.W. Collins, Counsel instructed by Sparke Helmore Lawyers for the Appellant. |
Decision
The Proserpine Nursing Home Incorporated (the Employer) has appealed the decision of Simon Blackwood (Workers' Compensation Regulator) (the Regulator) that set aside the decision of WorkCover Queensland to reject Sharon Goodall's application for compensation and substituted a new decision to accept Ms Goodall's application in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act).
The parties accept that Ms Goodall is a "worker" within the meaning of s 11 of the Act and that she suffered a personal injury. The Employer puts in issue whether the injury arose out of or in the course of Ms Goodall's employment and whether employment was a significant contributing factor to her injury.
Ms Goodall is employed as a Laundry Attendant. By consent, the Queensland Industrial Relations Commission (the Commission) undertook a view of the laundry and the collection and delivery points within the nursing home on 21 May 2014.
Evidence about Injury
Ms Goodall is employed on a part-time basis, working approximately 30 hours per week. She works Tuesday, Wednesday, Thursday one week and Tuesday, Wednesday, Thursday, Saturday and Sunday the following week. Although the hours per day generally followed a fixed pattern, the time sheets show variations occur.
Her duties include collecting laundry from various wings of the nursing home using a trolley; sorting; lifting bags of laundry; loading the washing machines and dryers; folding the clean laundry and returning it to the wings. The laundry includes sheets, towels, foul linen, clothing and personal items.
Ms Goodall described the work as physically demanding and some was heavy work such as lifting over-filled linen bags; pushing heavy linen trolleys and clothes hanging racks as well as loading wet washing into dryers. She described the pace of work in terms of collections and deliveries as hectic.
In the week commencing 27 May 2013, Ms Goodall worked from Tuesday to Thursday as normal, albeit with a later start on Wednesday. Ms Goodall said that after three days work she feels exhausted so she usually relaxes and does household chores in preparation for work again on the Saturday. This pattern continued on her day off, 31 May 2013. The heaviest thing Ms Goodall lifted on that day was a (domestic) vacuum cleaner.
Ms Goodall woke during the night of Friday 31 May 2013 with severe pain in her back. She recalled drawing her knees up to her chest and groaning. She eventually went back to sleep. When she arose the next morning she was doubled over. Although her husband suggested she was not fit to work, Ms Goodall decided to work as the laundry was short staffed due to a scabies outbreak.
Ms Goodall completed her shift despite being in pain and attended the Proserpine Hospital after work. At the hospital Ms Goodall was administered pain relief which consisted of an injection, Panadol and heat packs.
The medical notes and the Non-Resident Incident and Investigation Report Form (Incident Report Form) completed by Ms Goodall record her as having sustained the injury on 31 May 2013. When describing the incident and any injury in the Incident Report Form, Ms Goodall stated:
"Woke up Sat morning after painful & restless sleep Friday night in extreme pain. Worked Thursday was ok. Worked Sat & ended up at hospital."
She also stated in the Incident Report Form that the following factors contributed to the injury:
"Lifting laundry out of baskets on floor, loading dryers, swinging hips and bending. Lifting heavy laundry linen bags in skips and trolleys."
Ms Goodall said in evidence that she had not sustained a previous back injury nor had she made a workers' compensation claim. It was not until she spoke to one of her co‑workers that she was aware she could make a workers' compensation claim. Seized with that knowledge, Ms Goodall asked Dr Khatiwala, a General Practitioner at the Whitsunday Doctors Service, for a workers' compensation medical certificate.
Under cross-examination Ms Goodall agreed that she had not hurt herself on either 30 May 2013 or prior to that date, except for some nerve spasms in her back that she experienced, she believed in February 2013. (The medical records show that it was December 2012.) She accepted the onset of the injury was 31 May 2013. In relation to the December 2012 condition, Ms Goodall said that the symptoms started as she arrived at work but she continued to work through the day and went to the Proserpine Hospital for pain relief at the end of her shift.
The Medical Evidence
Ms Goodall was seen by a number of General Practitioners in relation to her back condition, the subject of this claim:
Dr Qureshi Proserpine Hospital 1 June 2013
Dr Trimble Acute Primary Care Clinic 3 June 2013
Proserpine Hospital
Dr Sainju Proserpine Hospital 7 June 2013
Dr Khatiwala Whitsunday Doctors Service 11 June 2013
Dr McCann Whitsunday Doctors Service 17 June 2013
Except for Dr Qureshi, all doctors gave evidence. None of the Proserpine Hospital doctors had any recollection of Ms Goodall and relied on their clinical notes. Both doctors from the Whitsunday Doctors Service when referred to their clinical notes were able to explain their view of the consultation with Ms Goodall.
Dr Khatiwala was the first doctor to issue a workers' compensation medical certificate. Her certificate dated 11 June 2013 recorded that Ms Goodall's stated cause of the injury was "heavy lifting at work, swinging movements in laundry". Dr Khatiwala also recorded that she was "uncertain" about whether the injury was consistent with the worker's description of the cause. However, in correspondence to Ms Goodall's Solicitors of 16 August 2013, Dr Khatiwala expressed the opinion that Ms Goodall's employment contributed to her lower back pain and employment was a significant contributing factor to the injury. In evidence Dr Khatiwala said Ms Goodall told her that the duties she was performing at work were out of the ordinary and contributed to her back pain. It was for that reason that Dr Khatiwala issued a workers' compensation medical certificate.
Dr McCann issued a workers' compensation certificate stating the same cause of the injury as that given by Dr Khatiwala and also that she was uncertain as to whether the injury was consistent with the stated cause.
Dr Trimble said she only issued a standard medical certificate because no workers' compensation medical certificate had been issued on the first presentation and she had not been advised that the injury had occurred at work. Dr Sainju also said that Ms Goodall had not provided any information to link work with the injury.
Drs Trimble and Sainju agreed under cross-examination that musculoskeletal symptoms can manifest 24 to 48 hours after an event. Dr Trimble agreed that Ms Goodall's injury was consistent with tasks such as lifting heavy laundry linen in bags and loading dryers. She added though that such an injury could also be caused by sudden downward impact on the spine.
In answer to a question from the Regulator as to whether musculoskeletal injures can have a delayed onset, Dr McCann was only prepared to answer from her own experience. She had seen patients who present with back pain who had recalled performing heavy lifting the day before.
Dr Khatiwala agreed that it was not necessary to have a discrete event to enliven or aggravate a back condition. She said it could be caused by lying or rolling over in bed.
Dr Khatiwala ordered an X-ray of Ms Goodall's spine on 11 July 2013 and the results were received by Dr McCann. Those results were that there was disc degeneration.
Findings and Conclusion
An appeal to the Commission is a hearing de novo.[1]
[1] State of Queensland (Queensland Health) AND Q-Comp AND Beverley Coyne (2003) 172 QGIG 1447, 1448.
As the Employer is the appellant in these proceedings, it bears the onus of proof to show the decision was wrongly made.[2] In an appeal brought by an employer the worker is not required to establish by their evidence the elements of injury in s 32(1) or s 32(3) of the Act.[3] 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 the Act.[4] The worker continues to receive the benefit of the review decision until that is displaced.[5]
[2] Ibid.
[3] Ibid.
[4] Yarrabee Coal Company Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 156 [15].
[5] Ibid.
The difficulty with this case is that no specific incident occurred when Ms Goodall was at work. As a result the Employer disputes the connection between employment and the back complaint that occurred overnight on 31 May/1 June 2013. Support for its position was drawn from the cross-examination of Ms Goodall where she agreed she had not hurt herself on either 30 or 31 May and further that she had not worked on 31 May 2013. In addition, she agreed that while she had told Dr Qureshi that she had lifted a heavy object on 31 May 2013, this was incorrect.
On her three presentations to the Proserpine Hospital, Ms Goodall had also not identified any link between her work and her back condition. For this reason neither Dr Trimble nor Dr Sainju issued a workers' compensation medical certificate. This possibility was first raised with Dr Khatiwala on 7 June 2013 after a co-worker had suggested Ms Goodall seek workers' compensation. The evidence also shows that at this time Ms Goodall did not have much sick leave remaining.
The Regulator submits that the nomination of a specific date on her application for compensation is not determinative of when the injury arose nor is it a matter that restricts or fetters the claimant's right to statutory compensation. Further, the date of injury is to be determined by the medical evidence. In essence, the Regulator submits that absent a specific event, the evidence supports the conclusion that Ms Goodall's injury occurred over time as a result of her employment activities.
The Regulator also submits that the absence of an identifiable event does not matter as the definition of injury encompasses an injury that arises out of employment. Reference was made to the decision in Lackey v WorkCover Queensland,[6] ('Lackey') where Hall P considered the meaning of "arising out of" and accepted the submission that "the test posited by the words 'arising out of' is wider than that posited by the words 'caused by' and that the former phrase, although it involves some causal or consequential relationship between the employment and injury, does not require the direct or proximate relationship which would be necessary if the phrase used were 'caused by'."
[6] Lackey v WorkCover Queensland (2000) 165 QGIG 22.
The Regulator also submits that the nature of the tasks performed by Ms Goodall are physically demanding, including loading soiled laundry into washing machines, removing wet washing from the machines into trolleys and loading that washing from the trolley into the dryer. In addition, Ms Goodall participated in the collection and delivery of laundry. This was confirmed by the evidence of Dr Trimble who said that Ms Goodall's injury was consistent with certain of her tasks viz., lifting heavy laundry bags and loading washing into dryers. Dr Khatiwala also came to the conclusion that there was a link between work and injury after not initially being certain as to the connection.
The Employer disputes that the system of work could cause or contribute to the injury arguing that it has put in place safe systems to minimise impact on the body e.g. spring loaded trolleys and limiting the weight of laundry bags. In evidence, Tom Saide, the General Manager, provided documentation concerning laundry procedures and safe work practices. Ms Goodall said that she had not seen any of these documents in the laundry.
The evidence from Madlyn Mayne, one of Ms Goodall's co-workers and a witness called by the Employer, is that at the time some linen bags were overweight and this had been an ongoing issue. In addition, despite the spring loaded trolleys allowing the base to rise as laundry was removed, some bending and twisting was still involved in the tasks required to be performed.
Ms Mayne agreed the work was physically demanding and she has felt pain at the end of the day. She said that the laundry workers were able to work at their own pace, however, it is clear that they were required to ensure that the washing and drying of laundry proceeded in an orderly and timely way. In my view, the evidence shows the work performed in the laundry was physically demanding and constant.
The Commission does not necessarily accept that to be successful on appeal the Employer has to establish a competing way in which the injury could have arisen as it would be sufficient to discharge the onus of proof by evidence establishing that the injury could not have occurred in the manner alleged. However, evidence establishing that there was a competing cause is a compelling way of satisfying the onus. The only competing cause raised by the Employer was lying or rolling over in bed. In respect of this issue, Dr Khatiwala said that either of these could cause the back condition.
The difficulty with Dr Khatiwala's evidence on this point is that it is put in terms of possibility rather than probability. The standard of proof the Employer has to meet is the balance of probabilities and this is not satisfied by evidence that fails to do more than establish possibility.[7] The Commission must reach a level of actual persuasion.[8] If all that has been established is that an event is possible then the burden of proof has not been met and the action should be dismissed.[9]
[7] MacArthur v WorkCover Queensland (2001) 167 QGIG 100, 101 citing St George Club Ltd v Hines (1961‑62) 35 ALJR 106, 107 and referring to Bonnington Castings Ltd v Wardlow [1956] AC 613.
[8] Ian James Johnson v Q-COMP (2008) 187 QGIG 86.
[9] Taylor v Q-COMP and King (2008) 187 QGIG 105.
The Commission accepts that this case is not all one way given the absence of a definitive cause and definitive medical evidence as well as the inconsistency between the information Ms Goodall gave to Dr Qureshi and her evidence to the Commission. Further, the evidence does not support that Ms Goodall was undertaking tasks out of the ordinary on 30 May 2013 as Dr Khatiwala said she had been told. In my view, the evidence from Ms Goodall and Ms Mayne is that they went about their usual tasks on 30 May 2013.
Despite the difficulties with parts of Ms Goodall's evidence, the end result is that there is medical evidence supporting the view that Ms Goodall's back condition is consistent with the nature of the tasks she undertakes. This undermines the Employer's contention that the system of work was not such as to contribute to injury. Further, the medical evidence suggests that musculoskeletal symptoms can become manifest 24 to 48 hours after physical exertion. In Pepper v Q-COMP,[10] Hall P said:
"The authorities, I should add make it clear, that it is not necessary for the ultimate pain to develop seamlessly out of work related incidents, see WorkCover Queensland v Elliot Anderson (1999) 160 QGIG 175, a case decided under a legislative regime which required a claimant to show that the work was the major significant factor causing the injury."
Against that is the possibility only that lying or rolling over in bed caused the back complaint.
[10] Pepper v Q-COMP (2005) 180 QGIG 1127, 1128.
In light of the authority in Lackey as to the meaning of "arising out of" and in Pepper that it is not necessary for the ultimate pain to develop seamlessly out of work related incidents, the Commission has reached the conclusion that Ms Goodall's injury, being "acute or chronic back pain" as diagnosed by Dr Sainju, arose out of the employment. I am also satisfied that employment was a significant contributing factor as it was the "exigencies of the employment" that contributed in some significant way to the occurrence of the injury.[11] Further there was a substantial connection between the employment and the injury so as to satisfy the element that employment be a significant contributing factor.[12] Having considered the competing evidence the Commission is not satisfied that the Employer has discharged its onus of proof.
[11] Newberry v Suncorp Metway Insurance Ltd [2006] QCA [27].
[12] Ibid.
I should also say something about the nature of the injury. The results of the X-ray ordered on 11 July 2013 show degenerative changes in Ms Goodall's back condition. In my view the injury sustained by Ms Goodall on 31 May/1 June 2013 was an aggravation of a pre-existing degenerative disc condition. The findings concerning "arising out of" and "employment is a significant contributing factor" are equally applicable to an aggravation injury: s 32(3) of the Act.
The appeal is dismissed and the decision of the Regulator is confirmed.
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.
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