Sanewski v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 113
•11 July 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Sanewski | v | Simon | Blackwood | (Workers' |
Compensation Regulator) [2014] QIRC 113
| PARTIES: | Christeen Mavis Sanewski | ||||||
| (appellant) | |||||||
| v | |||||||
| Simon Blackwood (Workers' Compensation Regulator) | |||||||
| (respondent) | |||||||
| CASE NO: | WC/2013/287 | ||||||
| PROCEEDING: | Appeal against decision of Regulator | ||||||
| DELIVERED ON: | 11 July 2014 | ||||||
| HEARING DATE: | 3, 13 June 2014 | ||||||
| MEMBER: | Deputy President O'Connor | ||||||
ORDERS: |
| ||||||
CATCHWORDS: | WORKERS' COMPENSATION - MEANING OF "INJURY" - Whether the appellant's bilateral carpal tunnel syndrome constituted an "injury" within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003 - Where the appellant argued that her bilateral carpal tunnel syndrome out of, or in the course of, her employment as a cleaner at the Holiday Inn, Cairns - Where the appellant had worked as a cleaner for 29 years, but her employment at the Holiday Inn lasted for just over three months - Where the appellant argued that her bilateral carpal tunnel syndrome was an injury that arose solely out of, or in the course of, her three months of employment at the Holiday Inn, not an "aggravation" brought within the meaning of "injury" by the operation of s 32(3)(b) | ||||||
| Workers' Compensation and Rehabilitation Act | |||||||
| 2003, s 32 | |||||||
| CASES: | Rossmuller v Q-COMP (C/2009/36) - Decision < | ||||||
| Davidson v Blackwood [2014] ICQ 008 Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519 | |||||||
| Croning v Workers' Compensation Board of | |||||||
| Queensland (1997) 156 QGIG 100 | |||||||
| Pleming v Workers' Compensation Board of | |||||||
| Queensland (1996) 152 QGIG 1181 | |||||||
| APPEARANCES: | Mr R. W. Trotter for the appellant, instructed by Anderssen & Company Solicitors. Mr F. L. Lippett for the respondent, directly | ||||||
| instructed. |
Nature of appeal and onus of proof
[4] As with any appeal to the Commission against a decision of the Regulator, the
nature of appeal is by way of a hearing de novo. To succeed on the appeal, the
appellant must satisfy the Commission, on the balance of probabilities, that her
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claim is one for acceptance.
The appellant's case
[5] The appellant's case is that she suffers from bilateral carpal tunnel syndrome which constitutes an "injury" within the meaning of s 32.
[6] In short, the appellant argues that, without sustaining any traumatic incident at work, she developed bilateral carpal tunnel syndrome as a consequence of her employment as a cleaner at the Holiday Inn, Cairns.
Background
[7] The appellant was employed by Stafforce as a cleaner at the Holiday Inn, Cairns. Her employment commenced on 3 December 2012 and ended on 7 March 2013.
[8] The appellant gave evidence that she left school at 14 years and worked first as a cleaner with Whitsunday Cleaning and then as a fruit picker and packer. She was a cleaner for 29 years.
[9] The appellant's employment at the Holiday Inn required her to work, on average, 23 hours per week. She claimed her tasks as a cleaner included moving beds (some without wheels), cleaning bathrooms, making and stripping beds, wiping down surfaces, vacuuming, scrubbing carpets, cleaning awnings, and cleaning some of the public areas of the hotel.
[10] The evidence of the appellant was that she was allocated approximately 15 minutes per room for a "checkout" and 10 minutes for a "stay-over".
[11] On an average day, the appellant cleaned between 14 and 17 guest rooms. She would scrub the carpets of six to seven of those rooms. Ms Patterson, the "Executive House Keeper" at the Holiday Inn, said that when the carpets are stained a professional carpet cleaner is used as scrubbing the pile of the carpet would damage it.
[12] The appellant said that sometime in February 2013 when scrubbing carpets, she developed pain first in her right wrist and subsequently experienced the same symptoms in her left wrist. She purchased splints from Chemist Warehouse which she said she wore daily.
[13] The appellant suggested that she was required to use a vacuum cleaner which had only one wheel and made her job as a cleaner more difficult. In cross-examination she said that she complained to Ms Patterson about the defective vacuum cleaner sometime in February 2013. Ms Patterson, in her evidence, rejected the suggestion that the appellant complained about the vacuum cleaner, and said that if a complaint was made, the maintenance department would have been advised to repair the vacuum cleaner or, alternately, a spare vacuum cleaner would have been found.
[14] The appellant gave evidence that she was required to work unpaid overtime up to
three times a week. She told the Commission that she would work between 45
minutes to an hour of unpaid overtime for three days a week. No steps were taken
by the appellant to recover the outstanding wages. In cross-examination, she
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accepted that the timesheets were an accurate record of the hours that she worked.
[15] The appellant told the Commission that her pain has continued "pretty much exactly
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the same as when I was first diagnosed by Dr Wright." She told the Commission 4
that she takes "sleepers".
Medical Evidence
[16] Dr Blue, an orthopaedic surgeon, did not give oral evidence due to ill health but his reports of 23 July 2013 and 21 August 2013 were admitted into evidence. In the report of Dr Blue dated 23 July 2013 he opined:
"I do believe despite her unusual presentation and description and intensity of her symptoms, that she does suffer from work induced bilateral carpal tunnel syndromes."
[17] Dr Blue further noted:
"There was no history of any specific accident but simply the insidious onset of increasing severe pain and numbness in both hands in the distribution of each median nerve sparing the little finger and ulnar side of each ring finger."
[18] Dr Tomlinson, a consultant neurosurgeon, in his report of 17 April 2014 concluded:
"As a result of her work for the Holiday Inn at Cairns between 3 December 2012 and 7 March 2013 Miss Sanewski sustained injuries to both upper extremities. Clinically this would be consistent with bilateral carpal tunnel syndrome."
[19] Based on the history given to Dr Tomlinson by the appellant, he was of the opinion
that the development of the appellant's bilateral carpal tunnel was work related. In
cross-examination, however, he was willing to accept that carpal tunnel syndrome
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can have a constitutional cause. Dr Tomlinson was of the view that there may be many factors in the aetiology of carpal tunnel syndrome.
[20] In cross-examination, Dr Tomlinson was asked:
"Doctor, you don't suggest, do you, that any person who happens to be doing –
or engaged in a physical - a repetitive physical movement, who then suffers carpal tunnel syndrome can necessarily blame it on that physical movement, do you?---Well, all I can say is, you know, for me it's on a case-by-case basis and, you know, I can accept there are, you know, as you are talking about - what's discussed in the literature. But in this particular case I think based on what the person told me, it's a significant contributing factor to her condition.
That's right. It's - - - ?---Whether she has constitutional things or not, which
I'm not aware of.
It would be fair to say you have no way of knowing whether or not there was a
constitutional factor involved in her particular situation, wouldn't it?---Yes, I
do have - I could say - I am saying, as I said in my report, that I believe that
her, you know, based on what she told me, her work, to me, I would regard
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that as significant contributing factor."
[21] Dr Gervais, an orthopaedic surgeon, examined the appellant on 31 May 2013. In the report of Dr Gervais dated 7 June 2013 he concluded that the appellant developed bilateral carpal tunnel syndrome as a consequence of constitutional factors. He opined:
"She has bilateral carpal tunnel syndrome.
She has worked as a cleaner for two months prior to the onset of her
symptoms. She averaged 23.9 hours per week in this role.My opinion is that the development of her carpal tunnel syndrome is constitutional in nature and I would not attribute this to her work related activity."
[22] Dr Gervais identified age and sex as the primary constitutional features causing carpal tunnel syndrome. He said in his evidence before the Commission that epidemiologically there is an increased risk of the development of carpal tunnel syndrome if the patient is a female and is middle aged. Interestingly, Dr Blue, in his report of 21 August 2013 stated that he had performed 2,500 carpal tunnel decompressions with 85% of these patients being middle aged females. He went on to note:
"Another extremely common group of females suffering from carpal tunnel syndromes were domestic workers whose activities involved cleaning windows, scrubbing floors and sweeping under beds. This was in contrast to the activities carried out by the owner of the house whose physical recreational activities involved playing croquet or golf. It was the domestic workers who developed the carpal tunnel syndromes and not the sporting employers."
[23] It is the submission of the appellant that the Commission should disregard the evidence of Dr Gervais. It was submitted that Dr Gervais failed to address the test required by s 32 of the Act, namely, whether the appellant's work as a cleaner at Holiday Inn was a "significant contributing factor" in the development of her carpal tunnel syndrome. Such a submission misunderstands the role of the expert witness in proceedings before the Commission. In Davidson v Blackwood, Martin P wrote:
"It is inevitable in cases such as this that expert witnesses will play
important, if not determinative, roles for both parties to a dispute. The outer
limits of these roles must, however, be marked out by the law of evidence,
and, in particular, the ultimate issue rule, according to which an expert witness
must not seek to substitute himself or herself for the tribunal of fact, or for the
Court. In the present case, it was not for the expert witnesses called on behalf
of either party to say whether or not the 2010 fall suffered during the
appellant's employment, was a 'substantial contributing factor' to the injuries
disclosed in the wake of the 2011 incident. As the Deputy President pointed
out on a number of occasions, this was a matter for the tribunal of fact. It was
for the tribunal of fact to determine, on the basis of the evidence put before the
Commission, whether or not the appellant's fall was a substantial contributing
factor to his subsequent personal injury. It was for the expert witnesses to
illuminate, to the extent of their knowledge and expertise, the cause (or
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causes) of the appellant's back condition."
Case Law
[24] In dealing with the meaning to be afforded to the phrase "if the employment is a significant contributing factor to the injury" in s 32 of the Act, Keane J (with whom de Jersey CJ and Muir J agreed) in Newberry v Suncorp Metway Insurance Ltd wrote:
"Further, there is no warrant in the language of s 32 of the WCRA for reading
the words 'if the employment is a significant contributing factor to the injury'
as lessening the stringency of the requirement that the injury 'arise out of the
employment', as was suggested in the course of argument on the appeal. It is
clear, as a matter of language, that the words 'if the employment is a
significant contributing factor to the injury' are intended to be a requirement of
connection between employment and injury additional to each of the
requirements that the injury occur in the course of employment or arising out
of the employment. It cannot, in my respectful opinion, sensibly be read as
lessening the stringency of the latter or increasing the stringency of the
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former."
[25] In Croning v Worker's Compensation Board of Queensland, de Jersey P wrote:
"Now but for those work conditions, this particular appellant's problem would
not have arisen. That does not however necessarily mean that the work
conditions were a significant contributing cause of the condition. Compare the
distinction between a causa sine qua non and a causa causans or proximate
cause (see Tophams Ltd v Sefton (1966) 1 All E.R. 1039, 1044 and Sapley v
Gypsum Mines Ltd (1953) A.C. 663, 687). The necessity for the former does
not mean that on an ultimate assessment, it must be regarded as a significant
cause. As said in Tophams, the latter is the 'real effective cause', the former
'merely an incident which precedes the history or narrative of events'. There
may of course be two or more factors which might each be regarded as
'significant' contributors to the development of a condition. The determination
of which of a number of contributing causes is or are significant, involves a
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factual exercise."
[26] As observed by de Jersey P in Pleming v Workers' Compensation Board of
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Queensland, "There could be room, in theory, for another significant factor".
Conclusions
[27] Whilst the appellant's employment did provide the setting against which she became symptomatic, her employment was not, in my view, a significant contributing factor to the development of her bilateral carpal tunnel syndrome. The appellant's employment needs to be a "real effective cause" of the injury and not merely the setting or background in which the injury occurs.
[28] On the unchallenged evidence of the appellant, it must be accepted by the Commission that she was asymptomatic when she commenced her employment at the Holiday Inn and that, sometime in February 2013, she developed pain in her right and left wrists.
[29] I accept that the appellant's employment involved undertaking duties which included cleaning bathrooms, making and stripping beds, wiping down surfaces, vacuuming, cleaning floors, and cleaning the public areas of the Hotel which would require repetitive wrist movements and cause strain on her wrists. I am of the view that the appellant exaggerated her symptoms and the nature and volume of the work that she was expected to undertake.
[30] I do not accept the evidence of the appellant that she was required to work unpaid overtime, that she was forced to use faulty or inadequate equipment, or that she was required to remove stains by scrubbing the carpets in six or seven rooms per day.
[31] I accept that the appellant has a personal injury, namely, bilateral carpal tunnel syndrome.
[32] It was submitted by Counsel for the appellant that it would be an absurdity to argue that, as a result of constitutional factors, the appellant first developed carpal tunnel syndrome symptoms in her right wrist and then, a short time later, developed symptoms in her left wrist. The possibility of the appellant's work activities contributing to the onset of her symptoms cannot be ruled out and they may have been a contributing factor in development of her carpal tunnel syndrome or coexisted with the constitutional factors identified by Dr Gervais. However, I am not convinced on the evidence before the Commission, and applying the requisite standard of proof, that her injury arose out of, or in the course of, employment. Nor am I satisfied that her employment at the Holiday Inn was a significant contributing factor to the injury.
[33] I prefer the evidence of Dr Gervais to that of Dr Tomlinson and Dr Blue to the extent that the appellant's carpal tunnel syndrome is due to constitutional factors, in particular the pre-disposing factors of age and sex. As noted in paragraph [19] above, Dr Tomlinson also accepted that carpal tunnel syndrome can have a constitutional cause.
[34] This case was not conducted in reliance on s 32(3)(b) of the Act. I specifically inquired of Counsel for the appellant as to whether this was an aggravation case and was advised that it was not. The case was conducted solely on the basis that the appellant's employment at Holiday Inn had caused her bilateral carpal tunnel syndrome. I am of the view that, had the case been mounted on the basis that her employment had aggravated or exacerbated a pre-existing condition, then it may have been possible to conclude that she suffered an "injury" within the meaning of the Act. However, this was not was argued before the Commission and the Commission can only determine the matter on the case conducted before it.
[35] Having considered the totality of the evidence before the Commission I have formed the view that the appellant has failed to discharge the onus of proof and establish that she has suffered an "injury" within the meaning of s 32 of the Act. Accordingly, I would dismiss the appeal and affirm the decision of the respondent.
Orders
[36] I make the following orders:
1. The appeal is dismissed;
2. The decision of the respondent dated 6 September 2013 is affirmed; and
3. The appellant is to pay the respondent's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.
Decision
[1] This is an appeal by Ms Christeen Mavis Sanewski ("the appellant") pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act") against a decision of the Workers' Compensation Regulator's Review Unit ("the respondent") dated 6 September 2013. That decision confirmed the earlier decision of WorkCover Queensland dated 6 August 2013 to reject her application for compensation in respect of an injury described as "carpal tunnel syndrome right and left."
Issue for determination
[2] The issue for determination in this appeal is whether the appellant sustained an "injury" within the meaning of that term in s 32 of the Act.
[3] At the relevant time, s 32 provided:
"32 Meaning of injury
(1)
An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
…
(3) Injury includes the following– …
(b)
an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a
significant contributing factor to the aggravation–
(i) a personal injury;
(ii) a disease;
(iii) a medical condition if the condition becomes a personal injury or disease because of the aggravation;
…"
1
Rossmuller v Q-COMP (C/2009/36) - Decision < [2].
2
T1-32; Exhibit 5.
3
T1-29.
4
Ibid.
5
T1-36.
6
T1-37–8.
7
[2014] ICQ 008 [17].
8
[2006] 1 Qd R 519, 532–3.
9
(1997) 156 QGIG 100, 101.
10
(1996) 152 QGIG 1181, 1182.
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0
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