Rolph v Workers' Compensation Regulator - [2018] QIRC 6

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Rolph v Workers' Compensation Regulator [2018] QIRC 006
PARTIES:	Rolph, Peter (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2016/19
PROCEEDING:	Appeal against a decision of the Workers' Compensation Regulator
DELIVERED ON:	18 January 2018
HEARING DATES:	7 and 8 December 2017
HEARD AT:	Brisbane
MEMBER:	Industrial Commissioner Thompson
ORDERS:	1. The appeal is upheld. 2. The decision of the Regulator of 23 December 2015 to confirm the decision of WorkCover to reject the appellant's notice of claim for damages is set aside with the claim being one for acceptance. 3. The Regulator is to pay the appellant's costs of and incidental to the appeal to be agreed or failing agreement to be the subject of a further application to the Commission.
CATCHWORDS:	WORKERS' COMPENSATION ‑ APPEAL AGAINST DECISION ‑ Decision of Workers' Compensation Regulator ‑ Appellant bears onus of proof ‑ Standard of proof ‑ Balance of probabilities ‑ Witness evidence ‑ Appellant was a "worker" - Appellant sustained a personal injury - Personal injury arose out of or in the course of employment - Employment was a significant contributing factor to the injury - Decision of the Regulator is set aside - Appeal upheld - Regulator is to pay appellant's costs of and incidental to this appeal.
CASES:	Workers' Compensation and Rehabilitation Act 2003 s 11, s 32, s 258, s 548, s 549, s 550 Godwin v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 206
APPEARANCES:	Mr R. Oliver, Counsel instructed by Mr M. O'Connor of O'Connor Ruddy & Garrett for the Appellant. Mr S. Gray, Counsel directly instructed by the Workers' Compensation Regulator, the Respondent.

Decision

A notice of appeal was lodged with the Industrial Registrar on 22 January 2016 by Peter Rolph (Rolph) pursuant to ss 548A(1) and 549 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Workers' Compensation Regulator (the Regulator) dated 23 December 2015.
The decision of the Regulator was to confirm the decision of WorkCover to reject Rolph's notice of claim for damages pursuant to s 32 of the Act.
The notice of appeal sought the following orders:
· the Regulator's decision (dated 23 December 2015) be set aside;
· that Rolph had sustained a physical injury within the meaning of s 32 of the Act, being a lumbar spine injury; and
· the Regulator pay Rolph's costs of and incidental to the appeal.
The notice of appeal identified at Schedule 1 the following grounds of appeal said to be factual and supported by medical evidence:
·       Rolph suffered a personal injury on 8 December 2011;
·       Rolph continues to suffer from the personal injury sustained on 8 December 2011;
·       the personal injury from which Rolph continues to suffer arose out of or in the course of his employment; and
·       employment was a significant contributing factor to the injury.
Further at Schedule 2 of the notice of appeal the facts relied upon were set out as follows:

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.

Continue reading Rolph v Workers' Compensation Regulator

Details

AGLC: Rolph v Workers' Compensation Regulator [2018] QIRC 6
Case: [2018] QIRC 6
Decision Date: 18 January 2018

CaseChat Overview and Summary

In the matter of Rolph v Workers' Compensation Regulator, the Court was tasked with determining whether the appellant, Rolph, had sustained an injury to his lower back on 8 December 2011 while picking up a log, and if such injury arose out of or in the course of his employment. The Regulator had previously rejected Rolph's claim for damages, a decision which Rolph appealed. The legal issues before the court were whether Rolph had indeed sustained a personal injury on the specified date, if that injury arose out of or in the course of his employment, and whether his employment was a significant contributing factor to the injury.

The court found that Rolph had sustained a personal injury on 8 December 2011, as evidenced by the treatment records from the chiropractor and massage therapist on that date, which indicated that Rolph presented with lower back pain. Further, the court accepted that the injury arose out of or in the course of Rolph's employment, noting that Rolph had informed his colleague Bourke of the incident and that Bourke had facilitated Rolph's visits to the chiropractor and masseur. The court also determined that Rolph's employment was a significant contributing factor to the injury, as Rolph's occupation involved physical labour that could have led to the lower back injury. Based on these findings, the court set aside the decision of the Regulator and upheld Rolph's appeal. As a result, Rolph's claim for damages was accepted, and the Regulator was ordered to pay Rolph's costs of and incidental to the appeal.

Orders

Orders of the court

1. The appeal is upheld.

2. The decision of the Regulator of 23 December 2015 to confirm the decision of WorkCover to reject the appellant's notice of claim for damages is set aside with the claim being one for acceptance.

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

Background

Background to the litigation

The issue for determination is whether Rolph suffered an injury to his lower back when picking up a log on 8 December 2011. Collateral to this finding it was submitted is whether Rolph had told Bourke on 8 December 2011 that he had a previous injury to his neck and was experiencing difficulties with that condition.Background The submission referred to Rolph's boxing career that covered the period from when he was 16 years of age until his retirement in his early thirties and in particular the fact that he had a high level of pain tolerance as evidenced by Drs Yang and Powell as well as Megan Rolph. Rolph upon taking up employment with ATS also instigated a training program for Bourke during which time he informed Bourke of a neck injury suffered as a consequence of boxing. The relationship between the pair both workwise and socially was on a sound footing until October 2012.Work incident The work incident occurred on 8 December 2011 when he attempted to pick up a log that was thought to weigh around 35 kilograms at which time he felt a sharp pain in his lower back. Despite the pain he continued to work, informing Bourke on his return to the depot of the incident. Bourke sent him to the chiropractor and masseur meeting the costs for both consultations. Prior to 8 December 2011 Rolph had no contact with either of the two practitioners. Rolph was confused about whether he worked the next day or otherwise but records showed he worked the day most likely in the office. Thereafter he was placed on the stump grinder until March or April the following year. There was no evidence contradicting this background save for Bourke's.Other relevant evidence Rolph's evidence that he continued to self-manage the injury to the lower back should be accepted and the fact that he failed to mention the injury to Dr Yang in consultations immediately following 8 December 2011 was not unusual because he had a number of other medical conditions to focus on. The presentation of bilateral loin pain on 24 March 2012 to Dr Yang was thought by Rolph to be connected to kidney issues rather than the low back pain as a result of his work incident. Dr Yang's evidence was that prior to December 2011 Rolph had never presented with low back pain. A neck injury was suffered by Rolph on 16 October 2012 and a further injury to the neck on 18 October 2012 which is of no relevance to these proceedings except that as a consequence a statutory workers' compensation claim that was lodged and accepted by WorkCover, Rolph decided to commence a common law claim against his employer as a result of that incident which required him to undergo medico-legal assessments with various WorkCover doctors that included Drs English and McCartney. Megan Rolph who had been with her husband since 2002 had no recall of any complaints regarding low back pain prior to 8 December 2011 but recalls being informed of the visit to the chiropractor on 8 December 2011 and the subsequent taking of pain relief medication. She was well placed to give evidence regarding her husband's high tolerance to pain having observed numerous injuries to his head and face in the course of his boxing career.

Evidence

Evidence Before The Court

The standard of proof upon which an appeal of this nature must be determined is that of "on the balance of probabilities".Evidence In the course of the proceedings, evidence was provided by eight witnesses in addition to Medio-Legal Reports from Orthopaedic Specialist Dr Hugh English and Occupational Physician Dr Robert McCartney both of whom were not required for cross-examination. 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. The witnesses for the Appellant were:· Gary Chalk (Chalk); · Rolph;· Dr Gerard Kilian (Dr Kilian);· David Leembruggen (Leembruggen);· Dr Alex Powell (Dr Powell);· Megan Rolph (Megan Rolph) and· Dr Michael Yang (Dr Yang). The witness for the Regulator was Darryl Bourke (Bourke).AppellantChalk Chalk a remedial massage therapist had been conducting his practice at premises in Arana Hills on or around 8 December 2011 and at that time had provided massage therapy for employees of a business known to him as Aussie Tree Solutions (ATS). Appointments would be made by "someone" from the office after which an employee would turn up at a given time. The clients had to the best of his knowledge never paid for his services directly with payment being through the creation of an invoice given to the patient to take back to ATS or he would go into the office and pick up cash as and when he needed it. Whilst he had no direct recall of treating Rolph, records from the business indicated he visited the practice on 8 December 2011 with lower back pain and Chalk had made the following notations:"Appointment Date: 08 December 2011Activity Focus: lower back pain Client had a limp walking from the carRelevant Information: In prone position I trigger point and myofascial release of Glutes, Hamstring and extensor muscles.In supine position I trigger point and myofascial release the flexor muscles Quides and also released the hip flexs and the psoas muscles.Gave stretchers and suggested to ask employer for more treatments if pain persist.Client was moving more freer going back to carIn between tasks: Do stretchers given" In describing the range of treatment he provided for employees of ATS, Chalk's evidence was that he would treat somebody from ATS every three to four months for injuries such as back pain and shoulder pain. Generally such treatment would occur after 4.00 pm following the completion of their work. Under cross-examination he was unable to confirm what time Rolph had turned up on the day and whether someone from ATS had made the appointment on his behalf. The owner of ATS (Bourke) would refer employees to him for both work and non‑work related injuries with Bourke paying for all treatments whether work-related or otherwise.Rolph Rolph, prior to commencing employment with ATS in 2009, had been both an amateur and professional boxer having a total of 82 fights, 17 of which were as a professional. In the course of his boxing career he suffered a range of injuries which included:· general facial swelling and bruising; and· cuts that required multiple stitches.Rolph would seek medical treatment for the injuries but had refrained from using "painkillers".

Decision

Reasons for decision

It was submitted that the only conclusion is that Rolph did suffer the injury as described on 8 December 2011, had the treatment as evidenced, with the injury falling within s 32 of the Act.Conclusion The status of Rolph as a worker pursuant to s 11 of the Act was not required to be determined by the Commission on the basis that the status was not the subject of dispute between the parties. The matters for determination were:· did Rolph sustain a personal injury;· did the personal injury (if suffered) arise out of or in the course of Rolph's employment; and· was Rolph's employment a significant contributing factor to the injury.Did Rolph sustain a personal injury In respect of the incident on 8 December 2011 in which it is alleged by Rolph he suffered an injury to his lower back, there was no visit at the time to a registered general practitioner or any other medical person of similar standing with the level of treatment confined to that of a chiropractor and a massage therapist. In terms of the chiropractic treatment received by Rolph on 8 December 2011 from Leembruggen the notes of the practice identify his occupation as a tree lopper, referred to the practice by Bourke and in respect of "other pertinent information" the notes record the words "low back". In the course of cross-examination Leembruggen recalled that on 8 December 2011 he had been informed by Rolph that he was suffering "lower back pain". On the same day (8 December 2011) Rolph attended upon the massage therapist (Chalk) and the patient notes identifying the activity focus as being "lower back pain". Following the incident of 8 December 2011 Rolph attended upon his longstanding general practitioner (Dr Yang) on a number of occasions for medical issues not relating to low back pain. On 28 March 2012 he presented to Dr Yang with pain described as "bilateral loin pain" and was ordered to undergo a range of medical related testing to determine the source of the pain. In February 2014 the patient notes for a visit on the third day of that month references amongst other things Rolph having low back pain and in evidence Dr Yang informed this was the first time that Rolph had told him about a workplace incident had led to the pain. Dr Powell who provided chiropractic treatment to Rolph in October 2012 gave evidence of finding upon examination that his right "glutes" were very tight which was fairly consistent with mechanical low back issues and treatment was given in areas that included his lower back. Dr Powell had formed the view Rolph was "a chap that had a high pain threshold". Dr Kilian conducted an examination of Rolph on 26 October 2015 for the purpose of the preparation of a medico-legal report. In the report [Exhibit 8] Dr Kilian responded to the question of whether Rolph had sustained an injury as a result of an event on 8 December 2011 to which he opined:"I note that the previous reports particularly emphasise the cervical spine injury but it is clear that Mr Rolph sustained an injury to his thoracolumbar spine which has also contributed to his psychiatric injury. This took place on 08 December 2011. At the present time he continues to have ongoing back pain with symptoms which suggest there is a radiculopathy present. He also has an asymmetrical lumbar spine range of motion present."

Ratio Decidendi

Legal Principle Established

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