Saeed v Simon Blackwood (Workers' Compensation Regulator) - [2015] QIRC 28

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Saeed v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 028
PARTIES:	Mian Amir Saeed (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent)
CASE NO:	WC/2014/276
PROCEEDING:	Appeal against decision of the Workers' Compensation Regulator
DELIVERED ON:	18 February 2015
HEARING DATES:	2, 3 and 4 February 2015
MEMBER:	Industrial Commissioner Neate
ORDERS:	1. The appeal is allowed. 2. The decision of the Regulator dated 31 July 2014 is set aside and substituted with a decision that the claim by Mian Amir Saeed is one for acceptance. 3. The Respondent 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 OF REGULATOR - right shoulder pain - rotator cuff tear - whether an "injury" for the purposes of s 32 of the Workers' Compensation and Rehabilitation Act 2003 - appellant's work involved repetitive lifting of crates, including at or above shoulder height - whether injury arose out of, or in the course of, the appellant's employment - whether employment was a significant contributing factor to the injury - conflicting medical opinions - appellant bears onus of proof on the balance of probabilities.
CASES:	Workers' Compensation and Rehabilitation Act 2003 ss 32, 548A, 549 Adelaide Stevedoring Company Ltd v Forst (1940) 64 CLR 538 Avis v WorkCover Queensland (2000) 165 QGIG 788 Blackwood v Adams [2015] ICQ 001 Blackwood v Mana [2014] ICQ 027 Chattin v WorkCover Queensland (1999) 161 QGIG 531 Commissioner of Police v David Rea [2008] NSWCA 199 Commonwealth Banking Co v Percival (1988) 20 FCR 176 Commonwealth of Australia v Lyon (1979) 24 ALR 300 EMI (Australia) Limited v Bes (1970) 44 WCR 114 Federal BroomCompany Pty Ltd v Semlitch (1964) 110 CLR 626 Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 Graham Douglas Sergeant v Q-COMP (C/2010/52) - Decision v ANI Corporation Ltd (1992) 173 CLR 473 Holtman v Sampson [1985] 2 Qd R 472 Joyce v Yeomans [1981] 1 WLR 549, [1981] 2 All ER 21 Kavanagh v The Commonwealth (1960) 103 CLR 547 Lackey v WorkCover Queensland (2000) 165 QGIG 22 Luxton v Q-Comp (2009) 190 QGIG 4 Monroe Australia Pty Ltd v Campbell (1995) 65 SASR 16 Newberry v Suncorp Metway Insurance Limited [2006] 1 Qd R 519 Obstoj v Van de Loos (Unreported, Supreme Court of Queensland, Connolly J, 16 April 1987) Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181 Qantas Airways Limited v QComp (2006) 181 QGIG 301 Qantas Airways Limited v Q-COMP and Blanch (2009) 191 QGIG 115 Q-COMP v Green (2008) 189 QGIG 747 Ramsay v Watson (1961) 108 CLR 642 Rossmuller v Q-COMP (C/2009/36) - decision v Kosac (1978) 80 LSJS 112 State of Queensland (Queensland Health) v QComp and Beverly Coyne (2003) 172 QGIG 1447 Sue-Ellen Mary Carman AND Q-COMP (2007) 186 QGIG 512 Theiss Pty Ltd v Q-COMP (C/2010/11)…

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 28
Decision Date: 18 February 2015

CaseChat Overview and Summary

The case of Saeed v Simon Blackwood (Workers' Compensation Regulator) involved the Appellant, Mian Amir Saeed, seeking compensation for a work-related injury sustained during his employment as a truck driver for Wild Breads Pty Ltd. Saeed alleged that his right shoulder pain and subsequent rotator cuff tear arose from the repetitive lifting and carrying of crates, which formed part of his job duties. The primary legal issue before the court was whether Saeed's injury constituted an "injury" under section 32 of the Workers' Compensation and Rehabilitation Act 2003 and whether this injury arose out of or in the course of his employment. The Appellant bore the onus of proving these elements on the balance of probabilities.

The court examined conflicting medical opinions regarding the causation of Saeed's injury. It weighed the evidence, including the nature of Saeed's work, which involved repetitive lifting of crates, some of which were lifted above shoulder height. The court also considered Saeed's failure to initially link his shoulder pain to his work activities and his delay in lodging a workers' compensation claim. Despite these factors, the court found that Saeed's employment was a significant contributing factor to his injury, leading to the conclusion that the injury was work-related. The court accepted that Saeed's repetitive lifting activities were a substantial cause of his shoulder injury.

In light of the findings, the court allowed Saeed's appeal, set aside the decision of the Regulator, and substituted it with a decision that Saeed's claim for workers' compensation was one for acceptance. The court also ordered the Respondent to pay Saeed's costs of and incidental to the appeal, to be agreed upon or determined by a further application if necessary.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the Regulator dated 31 July 2014 is set aside and substituted with a decision that the claim by Mian Amir Saeed is one for acceptance.

3. The Respondent 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 Appellant claims to have sustained an injury to his right shoulder on or about 12 July 2013. He says that the injury was sustained over a period of time during the course of his employment as a result of repetitive manual duties. Therefore, he claims that he sustained an "injury" in accordance with s 32 of the Act and accordingly has an entitlement to compensation for that injury.Background The Appellant is an Australian citizen who arrived from Pakistan in 1987. He has been employed in a range of work since then. He commenced as an apprentice chef then worked as a chef in a family restaurant, and subsequently as a sales consultant and special project manager in real estate, and then as a limousine driver. He is married with five children. For approximately one and a half years he was not working so that he could care for his teenage son who had a spine condition and needed an operation. After that period, with the assistance of Mission Australia, he prepared for possible future employment. He undertook training in order to obtain an HR driving licence for larger trucks. Around that time he established a cleaning business, but did not undertake cleaning work himself. The Appellant commenced employment as a casual truck driver with Wild Breads Pty Ltd ("Wild Breads") on 18 April 2013. His work involved delivering crates of bread to customers of Wild Breads, including restaurants, cafes, offices and markets. He usually did each run himself and was responsible for loading trolleys with crates (each of which weighed 1.9 kg empty) containing bread products, pushing those trolleys from the despatch area to a truck, lifting those crates and a small trolley onto the truck, stacking crates in the truck, driving the products to customers, delivering individual orders to each customer (sometimes by carrying the crate or crates manually rather than using a trolley), collecting empty crates and returning those crates to the depot. Photographs in evidence (Exhibit 4) show the size of crates and trolleys, and the height of stacks of crates included in some of the orders conveyed by the Appellant. The truck which he drove had a handle and a steel bar or step at the back to assist him to climb on and off the truck. Evidence about the average weight of loaded crates, and the numbers of loaded and empty crates conveyed each day was given by the Appellant and by Steven Hewitt, the driver manager at Wild Breads and the Appellant's immediate supervisor. There were understandable variations in the estimates about these quantities. Where there were inconsistencies, I prefer the more precise and accurate evidence given by Mr Hewitt to that given by the Appellant. The effect of the evidence was that:(a) crates were packed separately by reference to each customer's order, with orders varying from one loaf on one crate to numerous fully packed crates for a single customer;(b) the weight of each loaded crate would vary depending on the type (and hence weight) of bread or breads on it, but would not exceed about 12 to 14 kg;(c) loaded crates were meant to be stacked up to 11 high in two stacks on each trolley to a total height of about 170-180 cm;(d) each truck could be loaded with crates arranged three stacks wide and six stacks deep and 10 crates high, giving a total of about 180 loaded crates;(e) the city run, on which the Appellant operated, serviced between 30 and 40 customers, and the crates were loaded onto the truck in the order in which they would be delivered to successive customers;(f) the largest loads were carried on a Monday and Friday, with smaller loads each Saturday and Sunday;(g) a relatively light pressed plastic trolley, weighing about 5 or 6 kg, was carried on the truck;

Evidence

Evidence Before The Court

Lay evidence: The Appellant gave oral evidence that he had not experienced pain in either shoulder before July 2013. Apart from the brief reference in Exhibit 8 to right shoulder pain on 11 June 2013, there is no medical evidence to suggest otherwise. The Appellant does not play sport, and his exercise at the gymnasium during the relevant period was apparently limited to using a treadmill. Apart from playing with his children (including casual pond swimming), he did not engage in physical activities that might have given rise to the shoulder pain which he experienced. The Appellant stated that he did not initially identify the cause of his shoulder pain, thinking at first that he had possibly pulled a muscle and he would get better after medication and an injection. Although that pain affected his ability to work as a driver, and he had time off work for treatment of the pain or to rest his shoulder, the Appellant stated that he did not link the pain to his work activities or advise his employer that he had a work-related injury until March 2014. However, the Appellant said that whenever he sought to have time off work, he gave his employer good reasons for that, primarily in relation to his shoulder pain (e.g. to have an ultrasound and injection) and on one occasion to deal with a family commitment. His practice was to inform his supervisor, Mr Hewitt, by telephone or by SMS text message on the evening before he would not be at work. Mr Hewitt confirmed that the Appellant would advise him when he was unable to work, although Mr Hewitt's evidence was that the Appellant usually nominated personal or family reasons, rather than his shoulder condition, for not working. In March 2014, the Appellant told Mr Hewitt that he believed he was getting the pain from heavy lifting. Mr Robbins gave evidence that he first became aware that the Appellant was injured at the time his WorkCover claim was made. Although he had not been advised about the injury previously by the Appellant or Mr Hewitt, it was apparent from his evidence and that of Mr Hewitt and the Appellant that: Although Mr Hewitt's written statement (Exhibit 16) includes:"Mian had not mentioned the pain in his shoulder had been due to an incident at work until he told me so less than 2 weeks ago" (emphasis added)Mr Hewitt confirmed in his oral evidence that the Appellant had not reported any accident or other incident to him, but only that the pain was caused by the work he was doing. Mr Hewitt agreed that the Appellant continued to come to work after having injections and that he did his best at work until March 2014 when he filed the workers' compensation claim and stopped doing the city run. In addition to the fact that for some months the Appellant apparently did not attribute his injury to work activities, there was evidence that he did not engage in the workers' compensation scheme because he did not understand how the scheme operated and was keen to continue to work for as long as he was physically able to do so. Consequently, he did not want to take days off work unnecessarily.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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