Skinner v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 98
•30 May 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Skinner | v | Simon | Blackwood | (Workers' |
Compensation Regulator) [2014] QIRC 098
| PARTIES: | Skinner, Wayne | |||
| (Appellant) | ||||
| v | ||||
| Simon Blackwood (Workers' Compensation Regulator) | ||||
| (Respondent) | ||||
| CASE NO: | WC/2012/414 | |||
| PROCEEDING: | Appeal against the decision of Simon Blackwood | |||
| (Workers' Compensation Regulator) | ||||
| DELIVERED ON: | 30 May 2014 | |||
| HEARING DATES: | 16,17 and 18 July 2013 | |||
| MEMBER: | Industrial Commissioner Black | |||
| ORDERS : | 1. The appeal is dismissed; | |||
| ||||
CATCHWORDS: | WORKERS' COMPENSATION - Appeal against a decision - Where the appellant was compensated for an injury to his thigh but subsequently claimed an injury to his right shoulder arising from the same accident - where only the injury to the thigh was reported to the employer and medical practitioner after the accident - where a prior history of shoulder pain was not reported to medical practitioners. | |||
| CASES: | Workers' Compensation and Rehabilitation Act 2003 | |||
| s 32, s 550 | ||||
| APPEARANCES: | Mr S. Cleary, Counsel instructed by Shine Lawyers, the Appellant. Ms D. Callaghan, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. | |||
| Decision |
Introduction
[1] Mr Wayne Skinner ("the appellant") appeals a decision of the Review Unit of the Workers' Compensation Regulator ("the regulator") to confirm a decision of WorkCover Queensland ("the insurer") to reject his application for workers' compensation.
[2] The appellant was employed by Mary Valley Milk Pty Ltd from 23 January 2012 until 22 April 2012 in the capacity of truck driver. On 27 February 2012 the appellant was injured at work while operating a pallet jack. The injury was not witnessed by any other employee. Later the same day the appellant informed his employer that he had injured his left thigh in the accident.
[3] The appellant saw his General Practitioner, Dr Ranjbar, on 28 February 2012, and was issued with a Workers' Compensation Medical Certificate stating that he was not fit for work from 28 February 2012 until 13 March 2012. The Workers' Compensation medical certificate included a diagnosis of left leg pain. The stated cause of injury was "hit the metal case of the pallet jack/ L Leg". Dr Ranjbar subsequently reviewed the appellant on 13 and 14 March 2012 in relation to this injury. Notwithstanding the medical certificate, the appellant resumed work on 29 February 2012 and continued working until 22 April 2012 when his services were terminated by his employer.
[4] The day after his employment ended (23 April 2012) the appellant saw Dr Ranjbar and complained of right shoulder pain. On the same day the doctor issued the appellant with a second workers' compensation medical certificate including a diagnosis of left leg pain and right shoulder pain. The stated cause of injury remained unaltered.
[5] Dr Ranjbar referred the appellant for an ultrasound of his right shoulder which was conducted on 27 April 2012. Subsequently, on 9 May 2012, Dr Shaw, an orthopaedic surgeon, diagnosed the appellant with right shoulder "subacromial bursitis".
[6] On 24 April 2012 the appellant filed an application for compensation with WorkCover which identified the nature of the injury as being "Shoulder, Unspecified Injuries". He stated that the injury happened when he "hit thigh on pallet jack while loading truck, then collided shoulder with metal guard". His claim was rejected by the insurer on 16 May 2012.
[7] On 31 July 2012, the appellant asked the regulator to review the insurer's decision. On 28 September 2012, the regulator confirmed the decision of the insurer to reject the appellant's claim for compensation for the right shoulder injury. The appellant lodged his notice of appeal pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act") on 25 October 2012.
Issue for Determination
[8] It is not in dispute that the appellant is a "worker" for the purposes of the Act and that the appellant was involved in a workplace accident on 27 February 2012 arising from which he sustained a haematoma of the left thigh. The issue for determination in this appeal is whether the appellant also injured his right shoulder in the same accident.
[9] Section 32 of the Act relevantly provides as follows:
"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."
Background Documents
[10] Background documents [Exhibit 1] tendered by the Regulator were as follows:
•
WorkCover Queensland Application for Compensation dated 24 April 2012;
• WorkCover Queensland Reasons for Decision dated 16 May 2012; • Q-COMP Application for Claim Review dated 31 July 2012; •
Q-COMP Review Unit Reasons for Decision dated 28 September 2012; and
• Notice of Appeal to Industrial Commission dated 25 October 2012.
Nature of the Appeal
[11] The appeal to the Commission is by way of a hearing de novo. To succeed with his appeal, the appellant must establish on the balance of probabilities that his injury arose out of, or in the course of, his employment if the employment is a significant contributing factor to his injury. In more particular terms, the appellant must establish that he sustained a right shoulder injury on 27 February 2012 as a result of a pallet jack collision.
Evidence
[12] During the course of the proceedings, evidence was provided by 14 witnesses. The witnesses for the Appellant were as follows:
Mr Wayne Skinner; Mr Gregory Rogers; Ms Natasha Rigby; Ms Cassandra Skinner; Mr Robert Skinner. Dr Ghazaleh Ranjbar; and Dr Mark Shaw.
The witnesses for the regulator were as follows:
Mr Keiran Callaghan; Mr Dean Thompson; Ms Narelle Hatch; Ms Hayley O'Donovan; Ms Sharon Stuart; Dr Gordon Mor; and Dr Robert McCartney.
The Case for the Appellant
[13] It was the appellant's version of events that on 27 February 2012, at approximately 1.00 pm, he was loading crates into his truck using a pallet jack. As he was maneuvering the pallet jack through an arched doorway it collided with a piece of metal on the dock leveller. The pallet jack stopped on impact and the appellant was propelled forward hitting his left thigh on the corner of the machine cowling. In a subsequent twisting motion, as he tried to prevent himself from falling, the appellant was thrust forward and struck his right shoulder on a "metal bar" which was part of the pallet jack.
[14] Later in the afternoon of 27 February 2012 the appellant rang his supervisor, Mr Thompson, told him about the accident, and informed him that he had sustained a leg injury. Mr Thompson asked him to see a doctor and to advise him of the outcome. The appellant visited his doctor the following day and was given a medical certificate advising him not to work for two weeks. Later that day he rang Mr Thompson and told him that the doctor had given him a certificate for two weeks off work. The appellant said that in response Mr Thompson informed him that if he took the time off he may not have a job when he came back. In the circumstances the appellant elected to return to work the following day.
[15] The appellant acknowledged that during the visit to his doctor on 28 February 2012 he only reported the injury to left leg and did not report any injury to his shoulder. He said that his shoulder was not really sore at the time and he was more worried about his leg. He visited his doctor again on 13 March and 14 March 2012 for treatment of his injured thigh but did not report any concern about his right shoulder during these consultations. However at his next visit on 23 April 2012 the appellant did complain of right shoulder pain and as a consequence his doctor referred him for an ultrasound. A workers' compensation medical certificate was issued on the same day referring to injuries to the thigh and right shoulder.
[16] The ultrasound report dated 27 April 2012 disclosed the conditions of supraspinatus calcific tendinopathy, subdeltoid bursitis with impingement, and degenerative changes in the acromioclavicular joint. The appellant's doctor treated the bursitis with a steroid injection and provided him with a referral to an orthopaedic surgeon, Dr Shaw. Dr Shaw completed his examination of the appellant on 9 May 2012 and opined that the mechanism of injury indicated that it was most likely that the appellant had received a direct bump of the subacromial bursa causing subacromial bursitis and impingement.
[17] The appellant submitted that the temporal connection between the accident of significant force on 27 February, 2012 and the diagnosis of subacromial bursitis strongly points to the shoulder injury being caused by the accident.
[18] The appellant's version of events was supported by the evidence given by family members. Their evidence was to the effect that they became aware of the appellant's shoulder injury soon after the pallet jack collision, that the appellant had told them that he had injured the shoulder in the collision and that the injury had got progressively worse. Ms Rigby confirmed the appellant's evidence that Mr Thompson had told him that he may not have a job to come back to if he took time off for the injury.
[19] The appellant submitted that the corroborating evidence of Ms Rigby about the conversation between the appellant and Mr Thompson supported a finding of credit adverse to Mr Thompson. It was her evidence that she heard via speaker phone Mr Thompson say that if the appellant did not come back to work he would not have a job. It was submitted that the reason provided by the appellant for his immediate return to work (despite a medical certificate allowing two weeks off work) was a more plausible account than that provided by Mr Thompson or by the employer to the effect that the injury was insignificant and not sufficient to keep the appellant away from work. The appellant also criticised Mr Thompson's evidence about the mechanism of injury including his conclusion that it was "impossible" for the appellant to have injured himself in the manner claimed. Mr Thompson was also criticised for inconsistencies in his account of when the appellant first contacted him about his accident at work.
The Case for the Regulator
[20] The regulator submitted that the appeal should be dismissed for the following reasons:
(a)
The appellant did not mention his alleged shoulder injury to either his doctor or his employer at the time of the accident. The injury was first reported to the appellant's doctor on 23 April 2012 which was almost two months after the accident. The appellant has only found it necessary to complain about his shoulder pain because his employment had been terminated;
(b)
The appellant had reported a previous injury sustained while working with another employer in the same manner. That is, the injury was reported the day after the appellant's services were terminated, and the injury was claimed to have resulted from an earlier work accident where a different injury had been suffered. This previous injury claim related to the appellant's employment by RG Pearens Pty Ltd. The appellant had excluded this employer from his employment history when making application for employment with Mary Valley Milk;
(c)
The appellant continued to work after the accident for almost two months without any visible sign of discomfort or without any apparent limitation, apart from a limp for a couple of weeks;
(d)
During the period of employment after the 27 February accident, the appellant never mentioned his shoulder injury to supervisors or co-workers. In particular, he did not inform Ms Hatch nor Mr Callaghan;
(e)
The mechanism of injury was challenged with the evidence supporting a finding that it would have been highly unlikely that the impact of the collision could have resulted in the appellant striking his right shoulder on the metal frame;
(f)
The appellant had previously suffered shoulder pain and had previously reported difficulty in raising his arms above shoulder height. These facts, if disclosed, were relevant to any medical evidence adduced;
(g)
The evidence supported a conclusion that the three conditions described in the ultrasound report of 27 April 2012 represent, in most cases, long term chronic degenerative changes of a constitutional nature. While trauma remains a possible cause of the bursitis, this conclusion puts in doubt the appellant's claim that the injury was caused by a traumatic event;
(h)
Significant inconsistencies arose in the appellant's case about when he experienced the onset of shoulder pain. The appellant said that significant pain was not experienced until one month after the accident, but his family members gave evidence of pain and treatment immediately after the accident;
(i) Findings of credit adverse to the appellant's case were warranted.
[21] In respect to the false employment history and the previous WorkCover claim, the regulator submitted that the appellant had consciously excluded from his application for employment form any information about his employment with RG Pearens Pty Ltd. He had worked for RG Pearens Pty Ltd from November 2009 to April 2010. On 3 March 2010 he was injured after he fell from a truck and a WorkCover claim was lodged in respect to a lower back injury. He subsequently resumed work, but his employment was terminated on 14 April 2010. The following day the appellant lodged a further WorkCover claim in relation to the incident on 3 March 2010 and said that he was experiencing upper back pain and shoulder pain and that he was unable to lift his arms above his shoulders.
Onset of Shoulder Pain
[22] It is not in dispute that despite attendances on his doctor on 28 February 2012, 13 March 2012 and 14 March 2012, the appellant did not report any shoulder pain until the consultation with his doctor on 23 April 2012. It is also not in dispute that the appellant did not report the onset of pain or discomfort to his employer or his co-workers. The appellant explained at T1-21 that he did not report the shoulder injury to Dr Ranjbar because:
"My shoulder wasn't really sore at the time. It was just - had like a bit of a niggledy, like a - like a - a little pain, like - like a touch pain at the time because I was really more worried about my leg because I couldn't walk properly with my leg."
[23] The appellant said that over time his leg got better but at some point in time he noticed the onset of shoulder pain (T1-21):
"Yes. And then what happened after that?---It just gradually got better and then as that started getting better, my shoulder started to ache, getting sorer and sorer, and then I had to - got to that bad at that stage where I was actually - when I was at work driving the truck, I was actually having to put my arm - lift my arm up on to the window sill so I could - like, to take the pressure off it because it was that sore and it just got to that - that stage that when they - at that stage I just couldn't put up it with any longer and that's just - and just before that I couldn't put it up with it any longer that they rang me and told me - I was on my way back from New South Wales, and they told me that I was no longer required."
[24] Despite enduring the pain for about a month the appellant did not tell anyone at his workplace about the pain or discomfort. Nor did he seek any medical assistance for the pain and did not visit his doctor until 28 April 2012. He did say however that when his services were terminated, he mentioned the shoulder pain to Mr Thompson (T1-24). Mr Thompson however denied that this conversation had taken place.
[25] The employer's version of events is recorded in the contemporaneous WorkCover verbal and unsuccessful communications report which is in the evidence as Exhibit 20. Ms Stuart, in her evidence, explained the relevant entry which summarised information received from Ms Hatch on 2 May 2012 (T2-55):
"Can you go through that with us, please?---Yes. So phone call from employer, which is Narelle Hatch. CR queried employers recollection of injured worker's injury. Had injured worker mentioned having ongoing issues with leg after her initial discussion with him. Employer advised she received a phone call from Dean on the date of injury. Dean queried if injured worker had been trained on the pallet mover due to the injury. She said she went into work about two or three days after the injury occurred and saw injured worker and asked what had happened. Injured worker advised he was fine. Employer asked the injured worker if the injured worker wanted to claim and injured worker said he didn't want to get WorkCover. By looking at him, that he was walking fine. Did not see any physical signs of an injury.
After the initial discussion where injured worker told her that she was fine, she had never heard anything back from him about his leg nor his shoulder. She would see him at least once a week but injured worker never brought it up again. She was only aware of ongoing issues when she was notified by Dean this week to provide a statement."
[26] There was some inconsistency in the appellant's case about when the appellant had noticed the onset of shoulder pain. In its brief to Dr Shaw on 26 October 2012 (Exhibit 13), Shine Lawyers provided an explanation for why the appellant did not report his shoulder injury to his GP on 28 February 2012. The explanation included the statement that on or about 16 April 2012 the appellant found that "he was unable to lift his arm above shoulder height."
[27] In cross-examination, the appellant indicated that the onset of shoulder pain occurred about a month after the accident. He said his shoulder "started getting sore, worse and worse and worse, a month and a half after the injury". Notwithstanding this evidence the appellant said that he did not remember telling the WorkCover claims representative, Ms Stuart, that the shoulder pain started a couple of days after the accident (T1-31 refers). In this regard the verbal and unsuccessful communications report (Exhibit 20) records that the appellant told Ms Stuart on 1 May 2012 that "when he injured his leg, his shoulder wasn't hurting at the time" and that "it wasn't until a couple of days later that he found he couldn't lift arm from shoulder height".
[28] In his report dated 18 September 2012 (Exhibit 21), Dr McCartney recorded a history provided to him by the appellant. The history included a statement that, after the accident, the appellant was able to finish the shift "despite some left thigh pain and not shoulder symptoms". Further the history recorded states that "several weeks after the accident" the appellant noticed an ache down the back of his left thigh and pins and needles in the lower limb and that "sometime later he noticed shoulder pain with loss of range of motion started to develop".
[29] Notwithstanding the evidence that the onset of pain occurred some weeks after the accident, the appellant's family members stated that the appellant told them on the day of the accident or very soon thereafter that he had injured his shoulder, that the shoulder was painful or sore, and that he had asked them to massage his shoulder to alleviate pain.
[30] Ms Rigby said that immediately after the accident she could see the pain in the appellant's face and that she saw Robert Skinner rubbing the appellant's shoulder. She said the shoulder pain started on the day of the accident and the appellant told her there was pain in his shoulder.
[31] Robert Skinner said that he was living with his father at the time of the accident. The appellant told him about the accident on the day that it occurred. He said that he had hurt his leg and shoulder. Mr Skinner said that after the date of the injury the appellant mentioned his injuries every afternoon and that the appellant was in pain as a result of both injuries. Mr Skinner said that he massaged both injuries on a near daily basis. Mr Skinner said that he recalled the appellant being off work in the past for a back injury, but he was not aware of injuries sustained in 2010 or in 2012. Mr Skinner said that he only provided treatment for the February 2012 injury.
[32] Ms Cassandra Skinner said that the appellant told her on the afternoon of 27 February 2012 that he had hurt his leg at work. Two or three days after the accident the appellant asked her to massage his shoulder. He said that he hit his shoulder as well as his thigh in the accident. She said that she continues to massage the shoulder on a daily basis. She said that she normally massages her father in the afternoon. She was not aware of anyone else providing the same treatment. She said that she had never massaged her father prior to February 2012.
Mechanism of Injury
[33] In his WorkCover application dated 24 April 2012 the appellant said that he "hit thigh on pallet jack while loading truck, then collided shoulder with metal guard". The WorkCover verbal and unsuccessful communications report which is in the evidence as Exhibit 20 records that the appellant told the claims officer on 30 April 2012 that when the pallet jack hit a piece of steel the "pallet jack stopped and he kept going into the metal surround of the pallet jack". The incident was not witnessed by anyone and no oral evidence was adduced establishing the speed that the pallet jack was travelling. In Exhibit 12 however Ms Hatch stated that she instructed workers to drive the pallet jacks at walking speed.
[34] In the evidence given during the proceedings the appellant described the mechanism of injury in the following terms (T1-13):
"And what happened after it struck that half moon shape?---And then it hit that and then I hit my leg on the corner of the - the cowling on page 1 but it's on the opposite side of the - the same side as the gentleman standing, there's a crease, a black metal - a black cowling thing, there is a crease, like the - like that but it's - and I hit my actual leg, the full length of the thigh on that, and then it's just stopped and I've - because I was leaning back at the time, I let go of this to stop myself from falling because I started to fall forward and I've actually hit - gone forward like that and hit the metal bar.
Okay. And for the purposes of the transcript, the witness is twisting his body as he is demonstrating how he fell?---Yep.
Okay. Can you - can I just take you back a step. You said that your left thigh hit the cowling?---Yeah, well, like, which covers the motor."
[35] The regulator did not accept that the appellant could have injured his right shoulder in the manner described. Ms Hatch, Mr Thompson and Mr Callaghan, who were all competent operators of the pallet jack, gave evidence around probability. Ms Hatch said that in her opinion it would not have been possible for the appellant to have injured his shoulder in the manner claimed. Mr Callaghan said that it would be "highly unlikely" for the injury to have happened in the manner described. In a prior statement dated 19 September 2012 (Exhibit 19) Mr Callaghan stated:
"35. I have impacted with the curved metal bars when operating the pallet movers; the impact does cause the pallet mover to stop immediately. If the pallet mover stops suddenly and unexpectedly, there is a possibility of the operator's thigh impacting with the frame of the pallet mover and could cause injury. I believe there is nothing on the pallet mover or the pallet load of milk crates that could impact with the shoulder area of the operator's body."
[36] Mr Thompson said that it would be impossible for the appellant to hit his right shoulder on the metal frame. He said that if on impact the body had twisted and were thrown forward, then the appellant would not have made contact with his thigh.
Medical Evidence
[37] Dr Ranjbar confirmed that the appellant complained of right shoulder pain on 23 April 2012 and that on examination she noted that elevation above 90 degrees was limited, meaning that he could just bring his arm up to shoulder height. She then sent the appellant off for an ultrasound. Dr Ranjbar addressed the matter with the appellant in a number of subsequent consultations during May and June 2012. Dr Ranjbar said that she was not familiar with how the appellant sustained his right shoulder injury.
[38] It was Dr Ranjbar's evidence that it was possible that the appellant had not raised any concern with his shoulder at an earlier time because of his preoccupation with his leg or thigh injury. At T2-6 she gave the following evidence:
"What did - can you expand on that entry and whether you - and why you wrote that entry as it reads?---Yes, look, I think he already had the shoulder pain, maybe he didn't mention it at the very, you know, at the very beginning, but sometimes it can happen because we were more focussed on the leg, on the left leg, because of the bruise because he wanted to walk and go back to work, so but now the shoulder was becoming worse so we thought, okay, we better do something. I did do a referral for Dr Shaw, orthopaedic surgeon, and Dr Watson to have the steroid injections into it."
[39] Dr Shaw first examined the appellant on 9 May 2012 and diagnosed his condition as subacromial bursitis for the following reasons (T2-39):
"And can you explain why you reached that diagnosis?---On my clinical examination of Mr Skinner when he first attended he had classic signs of shoulder impingement. And it was my opinion from the description of the mechanism of his injury that it was most likely a direct bump of the subacromial bursa and, therefore, direct inflammation or primary inflammation of the subacromial bursa causing subacromial bursitis and impingement.
Okay. And you've said earlier that subacromial bursitis can be caused by trauma, direct trauma on the bursa and that was your view that that was likely here?---Yes, that was in my opinion the most likely cause of his shoulder impingement."
[40] Dr Shaw accepted that his knowledge of the appellant's injuries and symptoms was based solely on a history provided by the appellant or the appellant's lawyers. He acknowledged that the appellant did not disclose any history of a prior shoulder condition which prevented the appellant from raising his arms above shoulder height. Notwithstanding this his diagnosis remained unchanged and he was of the opinion that based on the appellant's history the symptoms were consistent with subacromial bursitis and were consistent with the mechanism of injury described by the appellant. Dr Shaw agreed that the progression of the appellant's injury from one causing minor pain or discomfort to a more serious and painful condition was not unusual.
[41] It was not in dispute that bursitis can be caused by a trauma to the bursa itself. The question posed by the medical evidence was whether it was more likely than not that the appellant's bursitis was caused by trauma or by other circumstances. In accepting the history given to him, Dr Shaw arrived at a conclusion that the appellants' bursitis was caused by trauma resulting from the injury to his shoulder on 27 February 2012. If there were no trauma event on 27 February 2012, Dr Shaw would need to attribute other causes to the appellant's bursitis. The regulator canvassed this matter with Dr Shaw during cross-examination after referring to the summary of conditions included in the ultrasound report (T2-44):
"I believe you have given evidence to my learned friend that the conditions mentioned in the summary are all conditions associated with subdeltoid bursitis?---Yes. Well, those conditions can be associated with that condition. Yes.
Okay. And you've also said that it's one of the most common conditions that you treat; is that correct?---Yes. That's correct.
Okay. Is it fair to say that in most cases, subdeltoid bursitis associated with the calcific tendinopathy, the degenerative changes in the acromioclavicular joint, long term chronic degenerative changes of a constitutional nature?--- Quite often. Yes.
Quite often. Okay. And the only - in this case, the only connection that you have or the only connection to the work injuries, in fact, were Mr Skinner's own history?---That's correct.
If you had been told that in 2010 Mr Skinner had reported to his GP a difficulty or pain in his shoulders when trying to lift his arms above shoulder height, would that be further support for the fact that this is a long term degenerative condition?---Well, those symptoms could be attributed to subacromial bursitis, in which case, that history would suggest that it may be a recurrent or a chronic long term issue.
And when you say recurrent, that means that the condition can come and go.
It's not necessarily present all the time, is it?---Yes. That's right."
[42] Dr McCartney, an occupational physician, had completed an assessment of the appellant on 18 September 2012 at the request of WorkCover. The assessment was in relation to the appellant's injury to his left thigh. However the questions put to him by WorkCover included a "diagnosis of all work related conditions, please include if any of these are an aggravation of a pre-existing condition." The doctor's report is in the evidence as Exhibit 21.
[43] Dr McCartney also reviewed the ultrasound report dated 27 April 2012. It was his evidence that the condition of calcific tendinopathy identified in the report usually involved an age related degeneration of a tendon or old tears that did not heal properly, the latter being indicative of pre-existing underlying disease of the tendon. He said that degenerative changes in the acromioclavicular joint were usually age related and noted that the condition of bursitis referred to could be explained by some particular event or by age related degeneration swelling.
[44] It was Dr McCartney's opinion that, given the delay in the emergence of symptoms, it was unlikely that the shoulder problem was related to work (T2-66):
"...And that, from my notes and history, is because the - if there was an injury to the shoulder that led to - with such severity to cause impingement, you would expect significant symptoms at the time. And so that delay in symptoms is indicative that it wasn't an acute injury to the shoulder. So in the information provided to me, I couldn't disagree with the opinion that it wasn't - that the shoulder problem was non-work related nor unrelated to the incident."
[45] The progress notes of the appellant's consultations with Dr Mor are in the evidence as Exhibit 10. Dr Mor treated the appellant between 4 March 2009 and 5 June 2009 for a lower back and right hip condition arising from an injury sustained at work while lifting heavy cartons. Dr Mor also treated the appellant on 11 occasions between 3 March 2010 and 9 June 2010 in respect to an injury sustained at work when the appellant fell from his truck and landed on his back. Workers' compensation medical certificates were issued arising from these visits. The notes also show that the 2010 injury led to referrals to specialists and it appeared that two of the specialists, Dr McGuire and Dr Tuffley, prepared reports for WorkCover.
[46] In his oral testimony Dr Mor confirmed that on 3 March 2010 the appellant presented after having fallen on his back at work. At a subsequent visit to Dr Mor on 15 April 2010 the appellant reported that he had developed pain on the upper thoracic cervical spine and pain in the shoulders. The examination disclosed that the elevation of the arms above the head was painful. At a further visit on 14 May 2014 the appellant complained of severe pain in the neck and the shoulders with the record disclosing that he was unable to lift hands above shoulder height.
Conclusion
[47] A number of factors mitigate against a successful appeal. In the first instance the appellant had suffered shoulder pain previously that prevented him from raising his arms above shoulder height. This consideration and the medical evidence arising from the 27 April 2012 ultrasound suggests that the appellant's shoulder pain may have been attributable to a recurrent problem where the shoulder pain or soreness was experienced intermittently over time. Such a set of circumstances may explain the home massages and the onset of pain in April 2012 unrelated to any workplace incident.
[48] In terms of the mechanism of injury I accept the evidence of Mr Callaghan that it was possible that the appellant may have injured himself in the manner described, but that it was unlikely. When the appellant was thrown forward as a result of the collision the impact was firstly and significantly absorbed by his left thigh. At the point of impact of his thigh, his right shoulder would have been positioned some distance from the metal bar and given that the appellant was facing toward the side, his shoulder was positioned a right angle to the protruding bar. Despite the fact that the initial contact with the left thigh would have absorbed a significant part of the impact, the appellant then said that his body continued to move forward and rotate to a point where his body was facing forward and where continuing momentum then led to contact between his right shoulder and the metal bar. No expert evidence was led contributing a view on the probability of the appellant's account, but intuitively it presents as an improbable cause of the shoulder injury.
[49] A further difficulty for the appellant is that despite phoning Mr Thompson and reporting the accident, he did not include any mention of a possible shoulder injury. Further, the claimed shoulder injury did not impede the performance of his normal duties for at least a month after the accident. In terms of the period beyond this, the evidence of Callaghan and Hatch that they did not observe any discomfort or limitation tended to contradict the appellant's evidence that he did experienced significant pain while performing his duties. If the appellant were in significant pain however, on his evidence, he did not seek medical treatment until about two weeks after the onset.
[50] There were also inconsistencies in the appellant's case about when the onset of pain occurred. The WorkCover report and the family evidence suggested that significant pain was experienced very soon after the workplace accident. If this were the case, it is difficult to understand why the appellant did not report this pain to his doctor on 13 or 14 March 2012. The appellant however suggested that the onset of significant pain was delayed until sometime in April.
[51] While the appellant's cause was supported by the medical evidence provided by Dr Ranjbar and Dr Shaw, their conclusions were based on an incomplete history provided by the appellant. The omission of information about the 2010 shoulder pain diminishes the weight to be attached to this evidence. So much was evident in the concession made by Dr Shaw when he was asked to found an opinion on an alternative history where the appellant had previously experienced pain when lifting his arms above shoulder height. Dr Shaw opined that this history would suggest that the shoulder pain may be a recurrent or a chronic long term issue. When Dr McCartney's evidence is also taken into account it becomes clear that the medical evidence is inconclusive and adds to doubt about whether the appellant's shoulder pain was attributable to a single traumatic event.
[52] The final difficulty for the appellant goes to matters of credit which suggest that the appellant ought not be regarded as a reliable witness. In this regard I find the evidence of the appellant disingenuous in some respects. His failure to disclose evidence of a previous shoulder injury to Dr Ranjbar, Dr Shaw, Dr McCartney and his physiotherapist is difficult to accept given that he had seen two orthopaedic surgeons in respect to a condition where he could not lift his arms over shoulder height around two years earlier. His decision to exclude significant information from his application for employment form demonstrates the disposition towards the delivery of a less than truthful account. The omission was made more significant by the fact that he had made workers' compensation claims arising from that employment relationship. While the similarities between his 2012 claim and 2010 claim may have been coincidental an inference could be drawn that the appellant is engaging in a form of retaliation against his former employer and possibly improperly attempting to access the workers compensation scheme. Further the fact that he complained in both instances of pain when lifting his arm or arms above shoulder height suggests that shoulder pain has been a continuing problem for him, and a problem not attributable to the workplace incident on 27 February 2012.
[53] All these considerations when considered in isolation are not necessarily fatal to the appellant's cause, but when considered together they contribute to a conclusion that it was more probable than not that the appellant did not suffer an injury to his right shoulder in the workplace incident on 27 February 2012.
[54] While elements of the appellant's version of events were supported by family members, I am not persuaded that this evidence compensates for the deficiencies in the appellant's case that have just been canvassed. Further, while supportive, the family evidence was not free of inconsistency or blemish. In particular the evidence of Ms Rigby's was not credible. Ms Rigby's embellishment of her relationship with the appellant was tested by contradictory evidence. On the one hand she asserted that the bond between the appellant and her daughter had been "torn apart" because the appellant could not lift his daughter or participate in recreational activities with her; while on the other hand she conceded that she did not always get along with the appellant and that she is not the closest person to the appellant. She also put some distance between herself and the appellant saying that she did not live with the appellant and that she "did not see Wayne all the time".
[55] Despite all family members giving evidence in specific terms that the appellant injured his shoulder in the 27 February 2012 incident, was in pain with his shoulder, and asked for a shoulder massage, they were generally vague when it came to their knowledge of other injuries sustained by the appellant. Mr Rigby said she had no knowledge of the injuries sustained by the appellant in 2009 and 2010 despite that in the case of the 2009 injury the appellant was off work for six months, while Robert and Cassandra Skinner suggested they had some limited knowledge of some of the injuries.
[56] There are also inconsistencies, although not significant in all cases, between the family member's evidence and the appellant's evidence. While the appellant conveyed the impression that there was little pain or discomfort in the right shoulder immediately after the workplace incident, the family members were of the view that significant pain was experienced at this time, and they provided relief through massages. Further in a prior statement in the evidence as Exhibit 6, Ms Rigby said that she knew that the appellant had told his boss that he had hurt his leg and his shoulder, but the appellant never asserted that he reported the shoulder injury.
[57] The appellant was particularly critical of Mr Thompson's evidence. The effect of the criticism was that Mr Thompson's evidence should be discounted or not preferred in the event of conflict with the version provided by the appellant. In the end result I do not consider Mr Thompson's evidence to be determinative. Even if I were to completely discount his evidence, the flaws in the appellant's case are not remedied. It follows that I do not accept that the appellant's appeal can be salvaged notwithstanding the inconsistency in Mr Thompson's account of when he was first informed of the appellant's accident at work; or by a finding, if made, adverse to Mr Thompson's credit arising from the allegation that he threatened the appellant with the sack if he took time off work because of the accident. This allegation may have been more relevant if the appellant had not been able to perform his normal duties without any significant limitation or discomfort when he returned to work after the accident.
[58] The appeal is dismissed. I reserve the question of costs.
[59] I order accordingly.
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