(a) the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Wednesday, 1 February 2023; and
(b) unless otherwise ordered, the decision on costs be determined on the papers.
CATCHWORDS:
WORKERS' COMPENSATION - ENTITLEMENT TO AND LIABILITY FOR COMPENSATION - appeal against review decision of Respondent - Appellant employed as a casual teacher by Career Employment Australia - Appellant made an application for workers' compensation claiming he suffered hernias from events in November 2017, when lifting a filing cabinet, and in early February 2018, when reaching up to lift a heavy screen and drill screws - rejection of that application - in September 2019, Appellant applied for a permanent impairment assessment for a lower back injury pursuant to s 132A of the Workers' Compensation and Rehabilitation Act 2003 claiming the November 2017 and February 2018 events had a causal connection with his lower back injury - rejection of that application which was confirmed by Respondent on review - Appellant appealed against review decision of Respondent to Commission - whether the November 2017 and February 2018 events occurred as alleged by Appellant - whether Appellant's degenerative lower back condition was aggravated by the November 2017 and February 2018 events - whether Appellant suffered an aggravation of a personal injury within the meaning of s 32(3)(b)(i) of the Workers' Compensation and Rehabilitation Act 2003 - Appellant did not suffer an aggravation of a personal injury within the meaning of s 32(3)(b)(i) of the Workers' Compensation and Rehabilitation Act 2003 - review decision confirmed
[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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AGLC
Statham v Workers' Compensation Regulator [2023] QIRC 3
Case
[2023] QIRC 3
Decision Date
CaseChat Overview and Summary
In Statham v Workers' Compensation Regulator, the Court reviewed an appeal by Mr Statham, a casual teacher employed by Career Employment Australia (CEA), against the decision of the Workers' Compensation Regulator to reject his claims for workers' compensation. Mr Statham alleged he suffered hernias due to lifting a filing cabinet in November 2017 and reaching up to lift a heavy screen and drill screws in February 2018. The primary issues before the Court were whether these events occurred as alleged by Mr Statham, whether his degenerative lower back condition was aggravated by these events, and whether he suffered an aggravation of a personal injury within the meaning of section 32(3)(b)(i) of the Workers' Compensation and Rehabilitation Act 2003.
The Court meticulously evaluated the evidence presented regarding the November 2017 and February 2018 events. In respect of the November 2017 incident, the Court found that Mr Statham's account was not corroborated by the evidence, particularly regarding the presence and condition of the filing cabinet he claimed to have lifted. The Court also noted the testimony of other witnesses, including Mr Budgen and Mr Beattie, who did not recall the specific events as described by Mr Statham. Furthermore, the Court held that even if the event had occurred, it did not constitute an aggravation of a personal injury as defined by the Act.
Regarding the February 2018 incident, the Court similarly found that Mr Statham's account was not supported by the evidence. The Court highlighted inconsistencies in Mr Statham's testimony and the lack of corroborative evidence to substantiate his claims. Consequently, the Court concluded that Mr Statham did not suffer an aggravation of a personal injury within the meaning of section 32(3)(b)(i) of the Act.
In light of the above findings, the Court confirmed the decision of the Workers' Compensation Regulator rejecting Mr Statham's claims for workers' compensation. The Court also ordered the parties to exchange written submissions on the costs of the hearing and directed that the decision on costs be determined on the papers.
Orders
Orders of the court
1. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the decision of the Respondent, dated 19 May 2020, is confirmed.
2. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:
(a) the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Wednesday, 1 February 2023; and
(b) unless otherwise ordered, the decision on costs be determined on the papers.
Background
Background to the litigation
For the reasons that follow, I find that Mr Statham did not suffer an injury within the meaning of s 32(3)(b)(i) of the Act. Background CEA is an organisation that provides vocational training for, amongst other persons, young men with moderate, intellectual disabilities who are directed to CEA through a disability services provider organisation.[11] Relevantly to this appeal, part of the philosophy of CEA, in respect of the training of such young people, is that project‑based training, as opposed to classroom training, is preferable.[12][11] T 1-103, ll 42-46.[12] T 1-103, ll 22-24. Prior to working for CEA, Mr Statham had worked as a motor mechanic, diesel fitter and teacher of diesel fitting.[13] Mr Statham also had a business building and selling large‑scale replica model sports cars.[14] [13] T 1-4, l 31 to T 1-5, l 7.[14] T 1-37, l 28 to T 1-39, l 22. In about 2016, Mr Statham commenced casual employment as a teacher with CEA.[15] That followed on from Mr Budgen, who knew Mr Statham, contacting Mr Statham and informing him that CEA was thinking of having students build a two-thirds scale Lotus sports car.[16] Sometime in about 2017, Mr Statham's place of work with CEA was at a church hall - 'St David's Hall' - in Chelmer.[17] It does not seem to be in dispute that Mr Statham was teaching students by working on the Lotus sports car at St David's Hall in 2017 ('the Lotus project').[15] T 1-4, ll 36-37.[16] T 1-102, l 34 to T 1-103, l 27.[17] T 1-9, ll 14-17. In 2017, CEA undertook a project, carried out at a workshop on Karen Avenue, Mermaid Beach at the Gold Coast ('the Gold Coast workshop') called the Aston Martin Ulster Program. That program involved students, referred to CEA from the Youth Justice office at Mermaid Beach, building a replica Aston Martin motor vehicle.[18][18] T 1-104, l 42 to T 1-105, l 15. Mr Budgen's evidence was that he had originally planned to build a MG replica vehicle, had a chassis made for such a vehicle, but that project was not proceeded with and the chassis for that vehicle was to become the chassis for the Aston Martin motor vehicle. Mr Budgen stated that the chassis for the Aston Martin was 200 to 300 mm longer than the MG chassis and, as a consequence, he asked Mr Statham, whom he considered to be a good welder, to attend the Gold Coast workshop for the purposes of extending the chassis so that it could be used for the Aston Martin replica.[19] [19] T 1-105, ll 8-15. On 17 November 2017, Mr Budgen and Mr Statham travelled together to the Gold Coast workshop for the purpose of Mr Statham extending the MG chassis.[20] There is no dispute that they travelled in Mr Budgen's vehicle.[21] Mr Statham's evidence was consistent with Mr Budgen's evidence in this regard.[22][20] T 1-104, ll 39-40.[21] T 1-45, l 14.[22] T 1-9, ll 23-33 and T 1-14, ll 7-10. There is also no dispute that in February 2018, the Lotus project had been completed and, by February 2018, CEA started another project to be completed in the garage at St David's Hall, namely, to build an MG Magnette K1 vehicle ('the MG project').[23] It is also not in dispute that Mr Statham was employed to work for CEA in respect of the MG project at St David's Hall.[24]Did the 17 November 2017 event occur as alleged by Mr Statham?[23] T 1-109, ll 8-13.[24] T 1-24, ll 35-44.Mr Statham's evidence
Evidence
Evidence Before The Court
In cross-examination, Mr Budgen:·stated, after being referred to his outline of evidence, that Mr Statham, on the way back to Brisbane from the Gold Coast on 17 November 2017, may have mentioned his back pain, but that Mr Statham made no complaint about his back[67] and that Mr Statham did make some comment about his back pain which was quite normal (for Mr Statham);[68][67] T 1-114, l 1 to T 1-115, l 5.[68] T 1-121, ll 1-4.·stated that he and Mr Statham travelled down to the Gold Coast and back in Mr Budgen's car for the purposes of Mr Statham doing some welding as part of his (Mr Statham's) duties;[69][69] T 1-115, ll 12-19.·stated that he did not recall seeing the frame Mr Statham was to weld having a filing cabinet resting on it to give it some stability and that he did not assist Mr Statham in taking a filing cabinet off the table where the frame was located and putting the filing cabinet back on the table;[70] ·stated that on that day, despite Mr Beattie working for CEA, Mr Beattie had that day off, it was only him (Mr Budgen) and Mr Statham who were on site, and Mr Beattie did not let him and Mr Statham into the building on 17 November 2017;[71] ·stated that at the Gold Coast Workshop, there were two black filing cabinets and there were two, four door filing cabinets that '… were creamy colour';[72]·in respect of Dr O'Brien's letter dated 1 December 2017, stated that Mr Statham read that letter to him and that the letter indicated that Mr Statham was suffering from pain from lifting tasks at work;[73] and·denied it was the case that as part of his regular conversations with Mr Statham, Mr Statham stated that lifting, twisting, pushing and pulling was aggravating his pain.[74][70] T 1-115, ll 21-27.[71] T 1-115, l 37 to T 1-116, l 1.[72] T 1-119, ll 39-44.[73] T 1-120, ll 1-11.[74] T 1-120, ll 36-40.Mr Beattie's evidence In November 2017, Mr Beattie was employed by CEA to manage a youth skills program. The place of his employment was the Gold Coast workshop where the replica Aston Martin vehicle was being constructed.[75][75] T 1-125, ll 3-21. Mr Beattie stated that on 17 November 2017, the chassis for the Aston Martin was still on the table as depicted in Exhibit 1, photographs 2 to 6.[76] Mr Beattie's further evidence‑in‑chief was that there was no other chassis of another vehicle at the Gold Coast workshop on 17 November 2017[77] and that there was no chassis being constructed for a billycart at that date.[78] [76] T 1-125, l 40 to T 1-126, l 16. [77] T 1-126, ll 36-37.[78] T 1-127, ll 19-21. According to Mr Beattie, as of 17 November 2017 at the Gold Coast workshop in the office area where he sat, there was a four‑door filing cabinet to his left and a couple of two-door filing cabinets to his right.[79] Mr Beattie also stated that there were no filing cabinets in the workshop area as depicted in Exhibit 1, photographs 4 and 5.[80][79] T 1-127, ll 25-32.[80] T 1-127, l 42 to T 1-126, l 4. After Mr Beattie was shown the photographs of the two filing cabinets as depicted in Exhibit 1, photograph 8, he stated that as of 17 November 2017:·there were two-door filing cabinets at the Gold Coast workshop;·there was nothing in them and they did not weigh 80 kg because they were being moved around a lot to be used in a project; and·he did not remember any filing cabinets being on the table.[81][81] T 1-128, ll 6-46.
Decision
Reasons for decision
For these reasons, my view is that, on the balance of probabilities, the event Mr Statham says occurred on 17 November 2017 did not occur.Conclusion As a consequence, the event Mr Statham said occurred on 17 November 2017 could not have aggravated Mr Statham's pre-existing lower back injury within the meaning of s 32(3)(b)(i) of the Act. Mr Statham stated that:·he was lifting up a fairly heavy Land Rover Discovery sign to be used as a welding screen to stop sparks from getting on the other articles in the area (which was in the garage at St David's Hall), and, in the course of doing so, he was standing on a small child's chair, he was reaching with his left hand holding the sign and then, with a screw in the (electric) drill, he was screwing the sign onto a wooden beam and that he completed that process every few feet;[132][132] T 1-28, ll 8-19, T 1-29, ll 5-44 and T 1-30, ll 21-25.·the room (where the screen was being put up) was very hot on that day;[133][133] T 1-30, ll 15-17.·the sign was six to eight metres in length and about three metres high, it was an old sign, he did not know where it came from but that Mr Budgen had brought the sign, he did not know the date Mr Budgen brought it to St David's Hall[134] but he helped Mr Budgen unload the sign from the car;[135][134] T 1-28, ll 21-37.[135] T 1-28, ll 39-41.·Mr Budgen said he paid about $60 for it;[136][136] T 1-28, ll 43-45.·the sign had written on it 'Land Rover Discovery';[137] [137] T 1-33, ll 29-32.·around half an hour into putting up the sign, he began to experience pain, there was no one there when he was putting up the sign, and the pain, on a scale of 10, was at 10;[138]·he recorded what occurred on the day in his diary,[139] being 8 February 2018, in which he stated: 'CEA - welding screen - Pain down right side down to my testicles on right';[140]·there was no other person with him when he was putting up the screen, but while he was putting up the sign, a woman did come into that area and he said to her that his back was killing him;[141]·on 13 and 26 February 2018, he went to see Dr Hii, he thought he explained to her how his injury occurred and that she gave him a workers' compensation medical certificate, dated 26 February 2018 (Exhibit 6);[142] and·on 27 February 2018, he left that medical certificate on Mr Budgen's desk and around lunchtime, Mr Budgen asked him to come and see him and when he did, Mr Budgen held up the medical certificate and said: 'Because you're giving me this, you're sacked', following which he (Mr Statham) went home.[143] [138] T 1-33, ll 34-45.[139] T 1-27, ll 16-20.[140] Exhibit 4.[141] T 1-33, l 41 to T 1-34, l 3.[142] T 1-34, ll 11-36.[143] T 1-34, l 42 to T 1-35, l 9. In cross-examination, Mr Statham:·stated that he could not remember the time of day the incident occurred, but thought it was probably mid-morning, and that he could not remember the date he made the entry in the diary but that he '… would have put it on the same day';[144][144] T 1-53, l 38 to T 1-54, l 6.·disagreed with a suggestion that Mr Budgen did not purchase the Land Rover Discovery sign until the afternoon of 8 February 2018;[145][145] T 1-54, ll 11-22.·disagreed with the suggestion that he did not help Mr Budgen unload the sign, disagreed that the Land Rover Discovery sign was cut up into small pieces to make individual screens like a curtain, and disagreed it was those pieces which he helped Mr Budgen screw up and put into the rafters;[146][146] T 1-55, ll 3-13.·disagreed with a suggestion that it was the next week, with Mr Budgen, that he put the sign up;[147][147] T 1-55, ll 41-42.·agreed that:- he saw Dr Hii on 5 February 2018 and told her that he had had two to three weeks of pain in his right groin and Dr Hii ordered ultrasounds to be taken of that area;- when he saw Dr Hii on 16 February 2018, Dr Hii told him the results of the ultrasound and he was still discussing the pain he was having around the hernia site in his groin; and - on 26 February 2018, Dr Hii gave him the workers' compensation medical certificate which was for the same injury in respect of which he had seen Dr Hii on 5 February 2018 and on that day he told her about an incident that occurred when lifting a filing cabinet on 17 November 2017;[148][148] T 1-56, l 28 to T 1-58, l 41.·disagreed that when he told Dr Hii on 26 February 2018, about the incident lifting the filing cabinet, that the back pain had resolved within three to four days, and stated that the pain had not gone away by the time he reached up to drill in the screw at Chelmer;[149] ·agreed that he had had a pattern, for many years, including in 2017, of regular episodes of back pain and was suffering from the same type of symptoms in 2018 that he described to Dr Hii;[150] and·disagreed, when put to him that on the date he left the workers' compensation medical certificate on Mr Budgen's desk, that Mr Budgen stated:- the certificate restricted him (Mr Statham) in the type of activities he could do;- because he already had a bad back and now had a claim for a hernia, he (Mr Budgen) could not give him any work because it would aggravate his symptoms; and- that he (Mr Budgen) did not have any roles for him and it was best that he (Mr Statham) go home.[151][149] T 1-58, l 43 to T 1-59, l 8.[150] T 1-59, ll 20-25.[151] T 1-63, ll 1-13.