Redlands City Council v Workers' Compensation Regulator
[2016] QIRC 29
•4 March 2016
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Redlands City Council v Workers' Compensation Regulator [2016] QIRC 029 |
PARTIES: | Redlands City Council v Workers' Compensation Regulator |
CASE NO: | WC/2015/212 |
PROCEEDING: | Appeal against decision of the Workers' Compensation Regulator |
DELIVERED ON: | 4 March 2016 |
HEARING DATES: | 9 & 10 November 2015 |
HEARD AT: | Brisbane |
MEMBER: | Deputy President Swan |
| ORDERS | 1. The Appeal is upheld. 2. The decision of the Regulator dated 3 July 2015 is set aside and substituted with a new decision. 3. The Workers' Compensation Regulator is to pay the Appellant's costs of and incidental to the Appeal. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Workers' Compensation Regulator - this is an employer appeal - claim of aggravation of a pre-existing back condition pursuant to s 32(3)(b) of the Act - worker's evidence inconsistent in terms of reporting of alleged injury - CCTV footage used to discount worker's claim - because of worker's underlying pathology a flare up can arise with no predisposing incident - appeal upheld. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 |
| APPEARANCES: | Mr M. O'Sullivan, Counsel, instructed by Cooper Grace Ward. |
Decision
This Appeal is made by the Redland City Council (the Appellant/the Council) against a decision of the Workers' Compensation Regulator (the Respondent) accepting a claim made by Mr Matthew Tongiatama (the worker) for an injury said to have been sustained on 29 December 2014.
The Appeal is by way of a hearing de novo and the Appellant bears the onus of proof on the balance of probabilities.
The primary issue in this Appeal is whether the worker sustained an injury in the manner as described by him. The Respondent says that the worker has a pre-existing condition (scoliosis) and has suffered from prior back pain as a consequence of a motor vehicle accident some years ago. It says that the injury sustained by the worker is an aggravation pursuant to s 32 (3)(b) of the Act. The Respondent says, consistent with Pleming, "this case is a case where the worker with a degenerative back condition has suffered an onset of pain for which employment has been a significant cause".[1]
[1] Pleming v Workers' Compensation Board of Queensland 1996 152 QGIG 1181
Section 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) describes "injury" as follows:
"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; …"
Witnesses
Appellant
·Ms Sue Boxall - Animal Shelter Officer;
·Ms Donna Wilson - Compliance Services Manager for the Council;
·Mr Peter Davis - Workers' Compensation Claims Manager for the Council;
·Ms Michelle Burridge - At the time of the incident, Ms Burridge was an Acting Team Leader for the Council;
·Ms Huybens-Smith - Animal Management Officer for the Council;
·Dr Stephen Goode - Occupational Physician.
Respondent
·Mr Tongiatama - the worker;
·Mr Mark Bolton - Animal Management Officer for the Council;
·Mr Bill Clifton - Animal Management Officer for the Council;
·Dr Azadeh Abtahi - General Practitioner.
The evidence
Before detailing this information, Exhibit 4 is a CCTV video from the workplace on the days of 29 and 30 December 2014, with 29 December 2014 nominated by the worker as the date upon which he incurred his injury. Reference will be made of that video in the course of this decision.
The worker was employed by the Council as an Animal Management Officer at its animal pound facility which is situated at Cleveland, Brisbane. He had worked for the Council for around 7 years and had left the employ of the Council in January 2015. The worker says his injury occurred on 29 December 2014.
On 29 December 2014, the only other worker present for the whole day was Mr Mark Bolton. At some point on that day, Ms Sue Boxall had visited the Centre and another officer, Mr Bill Clifton was working that day on North Stradbroke Island.
The worker said he had prior problems with his back (probably a year earlier) but on 29 December 2014, upon his return from leave, his back had initially been 'fine' [T2‑63].
Prior to returning to work on 29 December 2014, the worker had been on leave since 22 December 2014.
On 29 December 2014, the worker commenced work at 8.00am. The worker looked after the cattery and Mr Bolton, the dog section. During the course of his work, he said that he felt a twinge in his back but thought nothing of it. About an hour later, he was performing his duties and was in and out of the office area. He sat down for a period of time in the office and when attempting to stand up he felt a "seizure type of pain in my back" and he later alerted Mr Bolton of this. He believed that at the time of notification to Mr Bolton he had been "going back and forward from collecting dogs or relaying messages to Mark" [T2-65]. The time when the worker said his back had seized was between 10.00am and 11.00am.
The worker told Mr Bolton that he had "felt sudden - a twinge in my back where it's seized up, and I asked if I could do the easier jobs and if he could do the heavy stuff. He said that wasn't a problem…" [T2-65]. The worker finished his work for that day at around 4.30pm.
The worker returned to work on the following day and again was working with Mr Bolton however, on this day, he only worked for half of his shift. Before leaving work on that day, he had reported that his back had become "seriously worse" [T2-66]. He had, during that day, reported managing a large "mastiff-type" dog on a lead and that the dog had pulled hard on the lead and that was when he said he had his first instance of pain in his lower back.
On 30 December 2014, the worker said he had also seen Mr Clifton at the workplace and told him of his back pain. The worker said that he had advised Mr Clifton of the circumstances with the large "mastiff-type" dog.
Mr Clifton's evidence was that he recalled speaking to Ms Boxall on 29 December 2014. He said that he recalled her telling him that the worker had hurt his back and would only be working until lunchtime but he could not recall the exact date upon which he acquired this information [T2-53].
Notwithstanding that evidence given during the hearing, in a Statement made to Mr Davis on 3 February 2015, Mr Clifton accepted that he had stated, amongst other things, "I recall sending a text message to Sue Boxall at approximately 8 pm on the Sunday, the 28 December 2014 with the comment 'Heads up'. 28 dogs in the pound".
The Statement continued with Mr Clifton commenting on an early morning call he had from Ms Boxall on 29 December 2014 "during the conversation I told Sue there was a lot of dogs in the shelter and that Matt T will only probably be working till lunchtime as he had hurt his back" [T2-56].
Mr Davis had recorded in the Incident Report Form [Exhibit 8] that the worker nominated the date of injury as 28 December 2014. The worker noted that "It was extremely busy from 8am to 11am and when I went to walk after doing paperwork my lower back seized". However, in a meeting between Mr Davis and the worker, the date of the injury was changed by the worker to 29 December 2014.
However, in Exhibit 12 (The Council Full Incident Report of 13 January 2015), the worker had stated:
"Some dogs that morning were very resistant to lead, which can cause discomfort to different areas of the body. One dog, in particular, was a large mastiff which tugged quite hard on the lead and I felt sharp pain in the lower back area, but at that time I didn't think too much about it."
The worker's input into the "vault", which is the data base that is managed by the Workplace Health and Safety Section of the Council, showed his description of his injury as follows:
"At approximately 10.00am, he was doing paperwork for approximately an hour. He stood up from chair, felt lower back seize, causing severe pain."
Mr Clifton said that he had heard the information concerning the worker's back from Mr Bolton. Questioned as to when he had received this information, he had written on his Statement of 2 February 2015, "I believe this would have been during a phone conversation on either the Saturday, the 27th of December or Sunday, the 28th of December".
Contrary to Mr Clifton's statement of 19 December 2014, in examination in chief, he said he had first heard from Mr Bolton on Monday 29 December 2014 about the worker's back. Mr Clifton spoke to the worker on 30 December 2014 at the workplace, and he had been told by the worker that he had hurt his back while walking a dog up to the top carpark [T2-5].
Mr Bolton's evidence was that, around 10.00am to 11.00am, he had been told by the worker on the afternoon of 29 December 2014 that his back was sore. The worker told him that he was unsure as to how he had hurt his back. Mr Bolton says he had on a couple of occasions on that day told the worker to go home.
On 30 December 2014, Mr Bolton said the worker had returned to work. Mr Bolton believed that it was later on during the day that he told Mr Clifton about the worker's bad back.
However, Mr Clifton's evidence was that Mr Bolton had told him of the worker's back on 29 December 2014 [T2-51].
The Dog Register Book for the Council was admitted as Exhibit 6. When observing the Date of Disposal of the various animals in the Council, the worker agreed that the dog would have been in the pound on 29 December 2014. However, when looking at the Register he was unable to find a description of the dog said by him to be a "large mastiff type dog". He explained that he was unable to go into any specific detail concerning various breeds of dogs and with that confusion, he had referred to the dog as a large "mastiff-type" dog [T2-67].
Upon deciding to leave work early on 30 December 2014, the worker sent an e-mail to his 'bosses' advising them of the reason for his departure and that Mr Bolton would be at the pound on his own. The email, inter alia, read:
"On 29th of December 2014, whilst doing clean-up and general duties I strained my back causing serious pain. I managed to work the remainder of the day albeit in discomfort. I am unable to seek medical attention until the 31st of December" [T2-68].
The worker said he had mistakenly recorded 28 December 2014 as the date of the incident.
A General Practitioner, Dr Abtahi, saw the worker on 2 January 2015. The worker obtained a Medical Certificate and he was off work for a week for the purpose of resting and attending a Physiotherapist. The worker was prescribed simple analgesics. Dr Abtahi was advised by the worker that he had hurt his back because of the heavy lifting and bending he was doing at work. There had been no mention of a chair in his office or of a large dog being in any way involved in contributing to his injury.
Dr Abtahi said that she didn't always detail every point raised by a patient, but rather that she would obtain a "short idea of what – what could be the (indistinct) injury, that's all, but not the detail" [T1-62]. Dr Abtahi felt that what had occurred to the worker was a minor work injury, in the context of a man who had previously had back problems [T1-63]. However, Dr Abtahi did think the worker's back pain was getting worse, "like, it's work-related." The reason for saying this was because of "the kind of work, that kind of work that he was explaining to me, was like an exacerbation of that chronic back pain" [T1-64].
On the Workers' Compensation Form the worker had provided the name of Mr Bolton as a witness, however, he stated that Mr Bolton did not see the alleged incident.
The worker, when cross-examined, agreed that he had not put anything in the Incident Report concerning problems he had with a dog on the day of the injury. What he had written in the Report was that "when I went to walk after doing paperwork my lower back seized" [Exhibit 8].
It was put to the worker that in a discussion he had with Mr Davis on 7 January 2015, he had reported "Low on staff. Really busy day. Sweating up a storm all day. Sat down, do paperwork. Seemed to seize up and back got worse as the day went on" [Exhibit 9; T2-78, 79].
The worker denied that he had nominated the issue concerning a" large mastiff type dog" on a lead as the cause of his back pain. However, in examination in chief, the worker had responded to a question from Counsel for the Respondent "All right. Tell us about the mastiff dog?" The worker responded "From memory, taking all the dogs back and forth from the pound to the front office, I believed it was a mastiff I was - had on a lead at the time, and it pulled hard on the lead and that's when I felt the first instance of pain in my lower back" [T2-67].
The CCTV footage, to which earlier reference has been made, was played during the course of the hearing. The video did not show the worker sitting at the office desk for about an hour (either at 10am or 11am) but rather it showed the worker moving from the desk, out to the kennels, and performing a range of physical activities. The worker said he believed that he had been at the office desk for an hour but his response to a question pertaining to this point was: "Oh, if you want to be specific, I wasn't sitting there for an hour, no" [T2-79].
The worker, (who had previously viewed the CCTV footage) in cross-examination, was asked where on that footage could it be seen that he was "walking with any observable impairment in your back?" [T2-79]. The worker thought the question was a 'bit of a trick question' as he believed that the footage might not show his pain, but he did have a painful back.
The Appellant asked the worker "Objectively, when you look at the - you moving about, cleaning the kennels, hosing, moving dogs, it doesn't show you with a stiff back at any stage?" to which the worker replied "If that's what it shows, that's correct."
The worker was also questioned about the report he had given to his General Practitioner on 2 January 2015. Dr Abtahi had noted that the worker said he had injured himself on 29 December 2014 and that the pain was related to the bending, twisting and lifting he had performed at work and that the worker had previously had back pain. Dr Abtahi recorded in her Consultation Notes of 02/01/2015 "no thoracic or lumbar spine tenderness" Exhibit 14]. Dr Goode when asked by Counsel for the Appellant "And is there any entry there that is consistent with a back seizure?---No. I mean importantly, on examination Dr Abtahi, says there's no thoracic or lumbar spine tenderness. And one thing about muscle spasm, you are in acute pain. It's also - the muscle spasm is tender. The area is acutely tender" [T2-17].
Did the worker incur an injury arising out of or in the course of employment?
Ms Boxall's evidence was that she had received a text message on her mobile phone from Mr Clifton, late on Sunday 28 December 2014. She had not seen this message until the following day. The message (which had since been deleted) said words to the effect "heads up - 28 dogs in the pound."
In her phone call with Mr Clifton on that morning, she had been told that "Matt T had hurt his back and would probably be going home early." As a result of this conversation (although Ms Boxall was on annual leave) she determined to call in at the pound that morning.
CCTV footage confirms that Ms Boxall attended the shelter at 9.45am and left around 10.15am. When she saw the worker in the office she told him that she had heard that he had hurt his back and, in his usual manner, he simply "grunted and sort of nodded" [T1-15].Ms Boxall said the worker usually responded to her in that manner. The worker denied any conversation with Ms Boxall [T2-66] but in cross-examination said Ms Boxall had spoken to him but not about his back [T2-80].
Ms Boxall saw the worker on the path once before leaving and did not notice that he was experiencing any difficulty with movement indicative of a sore back.
Ms Boxall spoke later that day to Ms Huybens-Smith and told her "By the way, Matt's hurt his back and he'll probably be finishing early" [T1-17]. Ms Huybens-Smith confirmed that this conversation took place on 29 December 2015 [T2 - 3].
From the corroborating phone records, the Appellant says that it was clear that at least by 7.37am on 29 December 2014, Ms Boxall was aware that the worker had hurt his back.
Mr Bolton's evidence was that he first became aware of the worker's back sometime between 10.00am and 11.00am on Monday 29 December 2014.
CCTV
Dr Goode had not personally examined the worker. He had before him for consideration all medical reports relating to the worker together with all documentary material, both to and from the worker, upon which the Council had relied.
He was provided with the CCTV footage and images for the period of 29 and 30 December 2014.
Dr Goode's report states that the worker's movements on 29 December 2014 showed him to be moving around freely and bending down with no apparent injury. These movements included amongst other things pushing a trolley and bending down to tip food into bowls [Exhibit 17].
The CCTV footage did not show the worker sitting at an office desk for one hour in the time period of 10.00am and 11.00am that morning.
The CCTV footage for 30 December 2014, shows the worker performing what appeared to be his usual animal handling. He was squatting and moving freely in an unimpeded fashion. At around 9.40am, the worker was seen bending over and turning in a circle while releasing a dog.
In summary, Dr Goode stated:
"The excerpts from the CCTV footage fail to support the contention that the claimant had any significant acute lower back pain before 10.00 hours on the morning of Monday 29/12/14 - i.e. he wasn't physically incapacitated by his antecedent lumbar spinal condition. There is nothing in this footage to suggest that he incurred any acute lumbar injury on that morning either - because during that whole day, the claimant is continuously and consistently seen to be moving in an unimpeded fashion. Although he's seen bending on a number of occasions, there's no visual evidence of any significant single event to have initiated any acute lumbar injury. There was no particular event relating to a large dog straining in its lead, not any apparent acute pain after getting up from a seated position. The video evidence fails to support the notion that the claimant spent about an hour sitting in the office that morning - he was seen to be kept continuously busy."
The worker's evidence was that his back had seized, but Dr Goode's opinion was that if a back had seized, then that would be accompanied by muscle spasm with guarding and there was no evidence of that on the CCTV footage. In his opinion, muscle spasm is "acutely incapacitating" [T2-10].
Dr Goode, when considering Dr Abtahi's clinical notes said "… importantly, on examination, Dr Abtahi says there's no thoracic or lumbar spine tenderness. And one thing about muscle spasm, you are in acute pain. It's also - the muscle spasm is tender. The area is acutely tender" [T2-17].
In cross-examination, it was reiterated that Dr Goode had said in his Report that "this underlying pre-existing degenerative spinal pathology would predispose to ongoing and recurrent episodes of lower back pain". He stated that the 'major factor' in the worker's medical history was his pre-existing pathology which was extensive and "it's the pre-existing pathology might well solely explain the onset of his back pain in those sets of circumstances" (i.e. the 'circumstances' described included the possibility of the worker finding himself in a very awkward position and twisting himself - however, there had been no evidence of this according to the CCTV footage.
Dr Goode agreed that the CCTV footage did not show any of the worker's facial expressions on that day but he stated that if the worker had been suffering muscle spasm, then that would be apparent on the footage [T2-14].
Dr Goode said he had understood the word 'seized' used by the worker would encompass the definition of 'spasm'. Dr Goode said that the CCTV footage excluded muscle spasm, but it did not exclude the possibility of some sort of minor twinge with which he stoically went throughout the day without any evidence of it [T2-16]. Unfortunately, this was not how the worker had described his pain.
Mr Bolton said that the worker's gait on 29 December 2014 was 'slower, sluggish" [T2‑34]. While initially opposing the proposition that the CCTV footage had showed the worker moving freely, he eventually accepted that the footage of the worker "looks pretty good … to be honest … does look how he normally moves, I would have to say" [T2-42]. He also stated that "it does look like he is walking normally" [T2-42]. He also agreed that he had not seen any evidence where the worker had suffered an injury at work [T2-45].
From a consideration of this evidence, I have found that the worker did not incur an injury arising out of or in the course of employment for the following reasons.
Conclusion
I have been unable to accept the evidence of the worker.
In the first instance, the worker offered a number of explanations for his back injury which he said he incurred on Monday 29 December 2014. These included amongst other things:
a)The worker's explanations of causation of injury
· The worker had advised Mr Bolton that he had hurt his back when "walking a dog up the top of the carpark" [Exhibit 9].
· The worker had advised Dr Abtahi that his injury had been caused by a large amount of heavy lifting and bending at work [Exhibit 14]. No mention had been made to Dr Abtahi of the worker raising himself from a chair or that a large dog on a lead had contributed to him hurting his back.
· The worker's own entry into the 'vault' on 13 January 2015 was that initially he had felt a sharp pain in his lower back when he had a "large Mastiff dog" on a lead [Exhibit 12]. There had been no reference to a dog of this type on the Dog Register of the pound for the days in question. While the worker said that he didn’t know the names of breeds of dogs, he would have known the difference between a large dog and a small dog.
· In his interview with Mr Davis, the worker said that on 29 December 2014 he had been very busy and staff were working "flat stick" and "sweating up a storm all day. Sat down, do paperwork. Seemed to seize up and back got worse as the day went on" [Exhibit 9; T2-78, 79]. The CCTV footage does not record activity of the type described by the worker.
b)CCTV footage
· I have accepted that the CCTV footage of the worker's gait and demeanour on both 29 and 30 December 2014 showed that he was walking freely with no evidence of the type of pain to which he had referred. This point was conceded also by Mr Bolton who was working with the worker on those days.
c)Dr Goode's Medical Opinion
· I have accepted Dr Goode's analysis of the CCTV footage vis a vis the type of injury complained of by the worker. Had the worker suffered a seizure/spasm (which he claims to have been acutely painful), then it would have been evident when observing the worker's movements on the days in question. In my view, there clearly was no evidence of any difficulty being experienced by the worker on the CCTV footage [T2-14].
· I have accepted Dr Goode's opinion that the worker's "underlying pre-existing degenerative spinal pathology would predispose to ongoing and recurrent episodes of lower back pain". Also accepted is Dr Goode's opinion that the worker's condition could "flare up without activity and it could flare up with activity… and it can arise with no predisposing thing because of that underlying pathology" [T2-13].
· While I have not accepted that the worker injured his back at the workplace on 29 December 2014 in the manner so described by him, there is evidence, which I have accepted, that prior knowledge was had by work colleagues of his back problems before he commenced work on 29 December 2014.
d)Evidence generally
· I have been unable to accept that Mr Clifton, who gave a statement on 2 February 2015 [Exhibit 19], would alter that statement many months later, on the basis that he had just been confused at the time. His initial statement referred to having knowledge of the worker's back problem on 27 or 28 December 2014, as a consequence of a communication with Mr Bolton. It is difficult to see how his memory has been enhanced with the effluxion of time. It is reasonable to accept that his memory and statement, around the time of the telephone communications would be fresher and more reliable.
· While Mr Bolton denied knowing about the worker's back pain until between 10.00am and 11.00am on 29 December 2014, his evidence was equivocal when it came to recalling telephone conversations with Mr Clifton [T2-32]. Mr Bolton had not witnessed any injury incurred by the worker on 29 December 2014. Mr Bolton, who originally stated in evidence that "the worker's gait was slower and sluggish" on 29 December 2014, conceded in cross examination that the CCTV footage did not support that proposition and in fact the worker looked "pretty good to him and was moving freely." Having considered his evidence I find that it is unreliable on the point of his knowledge of when the worker injured his back.
· I have accepted Ms Boxall's evidence that she first heard information concerning the worker’s back early on the morning of 29 December 2014.
· I have accepted her evidence that she raised the issue of the worker's back with him when she visited the pound on Monday 29 December 2014. I have also accepted the evidence given by Ms Huybens-Smith of Ms Boxall's call to her at 1.10pm on 29 December 2014 advising her that the worker had injured his back.
· The worker, in his discussions with Mr Davis (which the worker had privately recorded) agreed that he had inferred that Ms Boxall and others were out to get rid of him. I have found no evidence of that, other than they have given different evidence to that of the worker as it related to when they had heard of his back injury. I have accepted that evidence as truthful.
The onus of proof is on the Appellant, on the balance of probabilities, to establish that the decision appealed against was wrongly made.[2] The Appellant has satisfied that requirement.
[2] Hall P in State of Queensland (Queensland Health) and Q-Comp and Coyne (No 90 of 2002)
In all, I have not accepted the worker’s evidence with regard to his alleged injury as one arising out of or in the course of his employment where that employment was a significant contributing factor to that injury [s. 32 of the Act].
The Appeal is upheld. The decision of the Regulator dated 3 July 2015 is set aside and substituted with a new decision. The Workers' Compensation Regulator is to pay the Appellant's costs of and incidental to the Appeal.
Order accordingly.
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