Stuart v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 134
•20 July 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Stuart v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 134 |
PARTIES: | Stuart, David William George v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2015/52 |
PROCEEDING: | Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 20 July 2015 |
HEARING DATES: | 13, 14 and 25 May 2015 |
MEMBER: | Industrial Commissioner Fisher |
ORDERS: | 1. The appeal is dismissed. 2. The decision of the Regulator is confirmed. 3. The Appellant is to pay the Regulator's costs of and incidental to the appeal or, failing agreement, to be the subject of a further application to the Commission. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - whether appellant's elbow injury arose out of or in the course of his employment - whether employment was a significant contributing factor - appellant bears onus of proof to establish these two elements on the balance of probabilities - whether appellant's version of events is accepted - determined evidence casts doubt about the version of events - medical evidence does not support appellant's version of how injury occurred - appeal dismissed. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32 |
| APPEARANCES: | Ms J. Sorbello, Counsel instructed by Shine Lawyers for the Appellant. |
Decision
David Stuart claims to have sustained an injury to his right elbow when he lost his footing and fell while replacing a roll of paper on a machine during his employment on 11 September 2012. Mr Stuart was employed in the position of Supervisor - Repairs and Maintenance Technician with Pacific National Industries Pty Ltd. While still in his employment at PNI, Mr Stuart sustained a further injury to his right shoulder and neck on 18 October 2012 and an aggravation to his right shoulder on 22 November 2012. This appeal only concerns the injury alleged to have occurred on 11 September 2012.
The parties agree, and the Commission accepts, that Mr Stuart was a worker at the time of the injury which was allegedly sustained on 11 September 2012. They also agree, and the Commission accepts, that Mr Stuart sustained a personal injury being an injury to the ulna nerve of the right elbow. In issue in this appeal is whether that injury arose out of or in the course of Mr Stuart's employment and whether employment was a significant contributing factor to it. Mr Stuart bears the onus of proof to establish these two elements on the balance of probabilities.
The major issues in contention are considered below.
The Circumstances of the Claimed Injury
Mr Stuart claims he was replacing a roll of paper on Machine number 3 when the injury occurred. The paper is used in the production of paper bags. The weight of the rolls used on Machine number 3 is about 200 kg.
Only the Production Manager, Steven Roberts, and supervisors, including Mr Stuart, are responsible for changing the rolls. Mr Roberts described the process for replacing the roll of paper on Machine number 3 as follows. A shaft is put through the middle of the reel. One side is locked and the other side of the shaft is then tightened. A floor jack is used to lift up one side of the shaft to place it in the machine. The jack is then released and the supervisor takes the jack to the other side of the machine where it is used to lift the other end of the shaft to place it into position. Mr Roberts said this was the only accepted technique for a roll change on this machine.
However, Mr Stuart claims that the floor jack was unable to be used on the right side of the machine because of the length of the axle shaft on that side. The floor jack was also unavailable at times. Without the floor jack Mr Stuart had to manually lift the roll using a length of pipe to assist him gaining leverage. Mr Stuart claims he was only trained to use the floor jack on the left hand side and to manually lift on the other side with the pipe.
Mr Roberts said the floor jack was able to be used on both sides of the machine. He confirmed that the axle shaft shown in the photographs tendered to the Commission was the same as that used in 2012. Mr Roberts was aware of a practice, but not PNI policy, to use a bar in dealing with a small reel of paper but this practice was not used on Machine number 3 where larger reels were utilised.
I do not accept Mr Stuart's evidence that he was unable to use the floor jack to lift the right side of the roll of paper. His evidence was contrary to that of Mr Roberts, whose evidence I accept. I found Mr Roberts to be a credible witness for reasons including his voluntary admission about the practice of using a bar, contrary to PNI policy. This process was not used on Machine number 3 because of the size of the reels used in that machine. Mr Roberts said that the axle had not changed since Mr Stuart's injury and the floor jack was able to be used on the right side. Moreover, I reject Mr Stuart's evidence that at times the floor jack was unavailable. I accept the submissions of the Regulator that on Mr Stuart's evidence, the floor jack had to be used on the left side. If this was the side that was lifted first, it follows that the floor jack would have been available to lift the right side.
It was while using the pipe that Mr Stuart said he slipped and fell. He explained he was standing to the left of the axle and had both feet pointing towards the drive shaft. His left hand was on the reel of paper, applying force to steady it. About 10 cm of the pipe, which was 30 to 35 cm long, was fitted over the axle shaft. The protruding part of the pipe was in his right hand to give him leverage. His right arm and elbow were bent in a lifting motion. He had lifted the roll about 20-30 cm when the pipe slipped down the axle. His feet went out from underneath him and the weight of the reel coming back to the ground pulled him down with it. He hit his chest and his elbow on the drive shaft cover. In examination in chief Mr Stuart firstly said he fell straight down and later that he toppled forward. In cross-examination, he fell straight down. On all versions he did not let go of the pipe at any stage.
Where he reported the event to specialist Orthopaedic Surgeons those records show he fell forward.
Both parties agree that the resolution of this appeal depends on whether Mr Stuart's version of events is accepted.
Was the Injury Reported?
On his induction to PNI, which according to the documents occurred a short time after he commenced employment, Mr Stuart signed a Safety Acknowledgement Sheet and Safety Rules. Relevantly, Mr Stuart acknowledged that he understood that he:
· was never permitted to lift anything manually where there is a mechanical or other lifting device;
· had an obligation under the Workplace Health and Safety Act to work in a safe manner that would not wilfully or recklessly endanger him; and
· must report all accidents immediately to a supervisor and/or the office.
A General Induction Booklet was also tendered in evidence. Julie Single, the Chief Financial Officer and the person responsible for Human Resources, said that the General Induction Booklet was on Mr Stuart's personnel file. Her evidence was that an induction pack, which included the General Induction Booklet, Safety Acknowledgement Sheet and Safety Rules are provided to new employees. However, Mr Stuart denied receiving a copy and a copy signed by Mr Stuart was not produced to the Commission. Accordingly, I am not satisfied that Mr Stuart was provided with the General Induction Booklet.
Attached to the General Induction Booklet was the Incident Report Form. Despite not being satisfied that Mr Stuart had received the General Induction Booklet, I do not accept his evidence that he was unaware of the Incident Report Form. According to the evidence of both Mr Roberts and Ms Single, which I accept, these forms were kept in a plastic document holder on top of a cupboard in the work area adjacent to the door of the staff kitchen. This document holder also contained leave and other types of HR forms. While I am prepared to accept that the top of the cupboard may not always have been as pristine as shown in the photographs tendered, I am satisfied the Incident Report Forms were readily visible and available.
Rather than completing one of these forms Mr Stuart completed an Injury Reporting Book on 11 September 2012. He was aware of this book because it was "left out near the girls' time clock".
The evidence is that the Injury Reporting Book had not been used since 2006, indeed, the only other entry in it is for a friction burn said to have been sustained on 15 September 2006. It is unclear why this book was still in the work area given the reporting system had changed to the Incident Report Forms at least as early as 2010. In any event I accept this method of reporting had been superseded.
Mr Stuart said he made the entries into this book at the end of his shift on 11 September 2012. This book, entitled "Register of Injuries and First-Aid Treatment" has two pages to be completed. The first page has a heading "Person Injured" and requires details of the person's name, age, address and occupation. None of these details were completed. Mr Stuart explained that he had not noticed that page at the time. The page then has another two columns, "Industry in which working" and "Operation in which engaged at time of injury". In relation to the first column, there is a tick under the earlier entry of "Bagmaking" and the word "Rollchange" appears in the column for the operation in which engaged at the time of injury. Mr Stuart claims that the word "Rollchange" is not in his handwriting.
The second page is headed "Injury Sustained" and has various columns. These are set out below with the entries Mr Stuart claims to have made on 11 September 2012:
Date: 11/9/12
Time: 17.30
Type: Hurt shoulder
Cause: Lifting
Location: 3
Treatment given: None
Name of First-Aid person in attendance: Charise
Details of Referral for Further Treatment (if required): Doctor 28/9/12
OH&S Act section 27 Notification Date Forwarded: Blank.The Regulator is highly critical of Mr Stuart's claim to have completed this entry on 11 September 2012. These criticisms include Mr Stuart's entries regarding the injury type, the cause and the date treatment was received. The Regulator submits that the injury type and cause are more reflective of the second injury on 18 October rather than the claimed injury on 11 September. In response, the Appellant submits that the suggestion the entry is a fabrication is "ludicrous" because it is implausible that a reconstruction would be so poorly done.
I do not accept Mr Stuart's evidence in relation to the Injury Reporting Book as credible. It is improbable that the treatment details of 28 September 2012 were entered on 11 September. At best, that entry was made at a later time, but that is not the evidence of Mr Stuart who said he only made the one entry on the date of the injury. I note his evidence that he did not recall writing the entry about 28 September 2012 but he said it looked like his handwriting. In my view, it was unlikely to be that of anyone else given the book had not been in use for many years.
Mr Stuart did consult his General Practitioner, Dr Patel on 27 September 2012 and as the Regulator submits, it appears the entry (or part of it) was made well after 27 September 2012 when Mr Stuart was trying to recall the date of the consultation with Dr Patel.
Further, Mr Stuart did not state that he had hit his elbow and only mentioned his shoulder. His evidence is that he did not mention his elbow as his chest was sore. However, he did not identify that he hurt his chest and only nominated his shoulder as the type of injury. Finally, he identified the cause as lifting. Mr Stuart's evidence is that the cause of the injury was losing his footing and falling. I accept he said that he had lifted the roll when he lost his footing and fell but on the face of his entry it appears that Mr Stuart hurt his shoulder by lifting. On any view, this is not what he claims to have occurred on 11 September. It is more akin to the injury said to have been sustained on 18 October. In this regard, Mr Stuart told WorkCover that he had reported that incident in the Injury Reporting Book and no entry appears in that book for 18 October.
The Commission accepts the Regulator's submission that it seems inherently implausible that Mr Stuart could have been working at PNI for seven months and know of the existence of the Injury Reporting Book, which had not been used for six years, but be unaware of the Incident Report Forms that were in a plastic document holder on top of a cupboard near the entry to the kitchen. In my view the completion of the Injury Reporting Book was a later construct designed to create some evidence showing an incident had occurred. It also explains the reason he did not use the Incident Report Form.
According to the Injury Reporting Book, the time of the incident was 5.30 pm. Mr Stuart did not report the incident to the Production Manager at the time, Olly Gill, Mr Roberts or Ms Single. He said he had the business card of Mr Gill but did not have Mr Roberts' mobile telephone number. However, Mr Roberts, who at the time was Senior Supervisor, said Mr Stuart had telephoned him on his mobile on a few occasions. Mr Stuart said the doors to the office where Ms Single worked were locked and closed from about 4.00 pm. Ms Single's evidence was that if employees were still working until 6.30 pm the doors to the office would be unlocked. Mr Stuart agreed under cross-examination that there was no reason preventing him from reporting the incident at any time from 12 September 2012.
Mr Stuart said that on falling he immediately had symptoms "like hitting your funny bone", "an ache in the elbow" and "a sharp pain" in his chest. He continued to work his shifts over the following weeks despite experiencing some intermittent pain. Even when his General Practitioner ordered a chest X‑ray for him on 27 September 2012, Mr Stuart said he did not think it was serious and so he did not report the incident. Mr Stuart was not a novice worker and has some history in making workers' compensation claims. I consider that given the immediate symptoms and the fact that they became progressively worse, he knew the incident ought to have been reported. Mr Stuart was aware from his induction of the requirement to report and acknowledged in his evidence his obligation to do so. Moreover, Mr Stuart verbally reported his second injury which happened on 18 October 2012. According to Ms Single, a verbal report was sufficient for PNI's purposes. The inconsistency between his conduct after the incident on 11 September and that of 18 October is telling.
Mr Stuart said he told one of his subordinates, Charisse Bakis, of the incident. Attempts were made to have Ms Bakis give evidence at the proceedings. In fact, the proceedings were adjourned as the Appellant said she had been located. Ms Bakis did not appear, perhaps because she had not been properly served with an Attendance Notice. The Regulator did not seek that an adverse inference be drawn but nonetheless submitted that Ms Bakis did not attend because she was not prepared to lie. Whatever the situation was with Ms Bakis not attending, the position is that Mr Stuart did not report the incident to a supervisor or the office using either of the approved means as he knew he was required to do under the Safety Rules.
Consultations with Dr Patel
Mr Stuart did not immediately seek treatment for his elbow injury. However, he noticed that his arm was getting "a little sorer". He did not take much notice at first then his arm became worse, he was getting a little tender around the elbow and had pins and needles. When he coughed he experienced "a bad pain down my arm, straight down".
Mr Stuart consulted Dr Patel on 27 September 2012 because of the pain down his arm when he coughed. He said he told Dr Patel this and that the pain went towards his elbow. According to Dr Patel's consultation notes, Mr Stuart complained of having an enlarged and tender right sternoclavicular joint. Because of this complaint, Dr Patel sent him for a chest X-ray and blood tests.
Mr Stuart returned to see Dr Patel on 3 October 2012. Dr Patel told him that the results of most of the investigations were normal.
A further consultation with Dr Patel occurred on 16 October 2012. On that occasion, Mr Stuart complained of cervical pain with radiation to his right scapula and shoulder pain. Mr Stuart was sent for a CT scan.
Dr Patel said Mr Stuart did not complain about any elbow injury in any of these consultations nor did he mention any work related injury. It is his practice to record in his notes when a patient reports a work related injury because of the importance of accurately recording these injuries.
The first mention of ulna nerve symptoms to a doctor occurred on 20 October 2012 when Mr Stuart saw Dr Loy, Dr Patel's partner in the Corner House Surgery. Dr Loy did not give evidence to the Commission but Mr Stuart's records from that practice were tendered in evidence. This consultation occurred after the second injury was claimed to have occurred, i.e., 18 October 2012.
A further consultation with Dr Patel occurred on 30 October 2012 and again he did not make any notes of a work related injury or elbow injury.
Mr Stuart claimed that Dr Patel's notes of the consultation of 27 September 2012 must be incorrect as they did not record the pain down his arm when he coughed. He also claimed that he told Dr Patel the injury occurred as a result of a fall at work because that is why he went to see him. However, despite Dr Patel not having an independent recollection of the consultations, I accept the accuracy of his notes. This is because he said his practice is to record work related injuries. Moreover, the tests that Dr Patel ordered for Mr Stuart did not relate to his elbow but his chest. Finally, Dr Patel was of the view that Mr Stuart was experiencing "chronic pain and life issues rather than anything else".
Specialist Medical Evidence
Mr Stuart said before the incident of 11 September 2012 he had not experienced any muscle wasting in his hand. He had some initial symptoms on impact with the drive shaft cover and continued to have intermittent pain thereafter. This pain did not prevent him from working and he did not take any time off work. However, the pain in his arm progressively worsened. Wasting started to appear in his hand. He got pins and needles about half way across his palm from his ring finger. Over a period of 18 months his hand became fully numb. Eventually he saw an Orthopaedic Surgeon and had surgery to release the nerve.
Dr Mark Shaw: Mr Stuart was referred to Dr Shaw, General Orthopaedic Surgeon, by his Solicitors, initially in relation to the injury said to have occurred on 18 October 2012. In his report of his examination for this injury dated 20 January 2014, Dr Shaw noted the pain and numbness in the medial aspect of Mr Stuart's right hand. He reported this condition was longstanding. In his evidence to the Commission, Dr Shaw explained the reference to "longstanding" meant in comparison to the examination date.
Dr Shaw examined Mr Stuart again on 22 March 2014 in connection with the alleged work injury on 11 September 2012. In his report dated 22 March 2014, Dr Shaw opined that the work injury in September 2012 resulted in a direct knock on the ulna nerve at the right elbow.
Following a request from Mr Stuart's Solicitors, Dr Shaw provided a further report dated 24 March 2014:
"The history provided by Mr Stuart, specifically the injury that was sustained in September 2012, is consistent with physical findings on examination. Medically there is no problem with the history provided. Mr Stuart hit his right ulna nerve very hard in September 2012 resulting in ulna nerve dysfunction and secondary hand weakness and clawing.
Mr Stuart did not report his injury. This also makes sense as he just hit his funny bone very hard and would expect it to improve. I would not expect a lay person to appreciate the severity of the injury until advanced changes in the hand became evident. Sadly these advanced changes are irreversible."
In his oral evidence, Dr Shaw said that the usual cause of the majority of ulna nerve injuries at the elbow is trauma. Although disease processes can also be a cause, disease usually affects a number of nerves. There was no evidence that Mr Stuart was suffering from a disease that could explain his condition. Dr Shaw said that muscle wasting will usually develop over a number of months after most injuries but the exception is when there is a severe injury to the nerve. In that case the onset of symptoms and signs can develop quite quickly. He thought the muscle wasting he observed in March 2014 was consistent with muscle wasting development.
Under cross-examination Dr Shaw accepted that had Mr Stuart sustained a severe injury, by October he would be starting to experience difficulties with his hand function. In his opinion, a report of severe muscle wasting in December 2012 was not inconsistent with Mr Stuart sustaining a severe injury to the nerve in September 2012. However, had such an injury been sustained, Dr Shaw would have expected that Mr Stuart would have noticed the hand weakness especially if he was doing heavier physical work. In the absence of difficulties being experienced in the workplace, Dr Shaw agreed with Dr Dalton that it appeared the ulna nerve issue had been present for a more significant period of time pre-dating September 2012.
Dr Shaw accepted that Dr Dalton, who examined Mr Stuart in January 2013, would be better placed to express an opinion as to whether the muscle wasting resulted from the incident of 11 September 2012 or earlier. However, he did not totally agree with Dr Dalton's opinion that the problem had been present for 12-18 months. This was because muscle wasting can develop surprisingly quickly in a person who sustains a severe denervation.
Dr Desmond Soares: Dr Soares is also an Orthopaedic Surgeon. He undertook an independent medical examination of Mr Stuart in relation to the 18 October 2012 incident. He provided a report to WorkCover dated 20 December 2012. In that report, Dr Soares stated:
"David initially injured himself on the 18th October. However, prior to this in early September he fell onto a machine and developed a prominent lump at the right side medial end of his right clavicle."
Dr Soares also records that Mr Stuart records some paraesthesia around the same time as the 18 October 2012 incident. He confirmed in his oral evidence that Mr Stuart told him that the paraesthesia developed around the same time of the 18 October incident.
In his examination of Mr Stuart, Dr Soares records "a fine tremor in his hands and has mild weakness of his abductor digiti minimi on the right hand side." In his oral evidence Dr Soares confirmed he observed on examination a very slight weakness of the small muscles of Mr Stuart's hand.
Dr John Walters: Workcover Queensland sent Mr Stuart to Dr Walters, Orthopaedic Surgeon, for an independent medical examination in relation to two clinical problems of which one was the right ulna nerve lesion at the level of the elbow. Dr Walters examined Mr Stuart on 17 July 2014.
In his report dated 30 July 2014, Dr Walters noted the absence of any reporting of any injury to the right elbow or sensory symptoms in the right forearm and arm by Mr Stuart to his then General Practitioner, Dr Gonsalves, during the latter three months of 2012. He considered the reports of various specialists in reaching his opinion. He opined that on the information available he was unable to substantiate a work related injury involving the ulna nerve at the elbow. Further, the muscle wasting and weakness identified in December 2012 by Dr Soares suggested longstanding and chronic pathology.
In a second report to WorkCover, Dr Walters stated that the mechanism of injury, i.e., striking the posterior aspect of his right elbow against a drive shaft, is consistent with producing an injury to the ulna nerve at the elbow. However, he restated the absence of corroborating medical evidence.
In his oral evidence Dr Walters said severe muscle wasting would result from pathology that had been present for six months or longer. To have the muscle wasting that Mr Stuart had in December 2012, Dr Walters expected the ulna nerve issue commenced prior to September 2012. Dr Shaw's opinion of a severe trauma to the elbow hastening the wasting was not put to Dr Walters.
Dr Phillip Dalton: Dr Dalton was a treating Orthopaedic Surgeon for Mr Stuart. He provided one report to WorkCover signed 8 January 2013 and two reports to Dr Gonsalves, one dated 8 January 2013 and the second dated 8 February 2013.
In his report to WorkCover, Dr Dalton said that nerve conduction studies were required to confirm work related diagnosis in the right ulna nerve. Mr Stuart had complained about numbness on the border of his hand and part of his forearm. Dr Dalton confirmed in evidence that he was looking for any work-related aspect to that complaint.
In his report to Dr Gonsalves of 8 January 2013, Dr Dalton stated that Mr Stuart injured his right neck and shoulder when lifting paper rolls in November. A few weeks later he had a second injury when he fell forward and landed heavily on a machine. Mr Stuart had noticed a lump on his sternoclavicular joint since then. On examination, Dr Dalton found some prominence in the sternoclavicular joint. He also noticed some wasting in Mr Stuart's right hand and decreased sensation in the ulna nerve distribution on the right side.
In his oral evidence Dr Dalton said Mr Stuart reported injuring himself approximately eight weeks earlier but could not recall the exact date. Dr Dalton calculated that the injury occurred in November. Under cross-examination Dr Dalton agreed that two injuries were reported but conceded that his handwritten notes show that Mr Stuart fell forward in the first injury. He said his handwritten notes were accurate chronologically as reported by Mr Stuart.
Dr Dalton confirmed the history he recorded had been given by Mr Stuart. The injuries from the two incidents were recorded by Dr Dalton as "neck", "right shoulder" and "trapezius area". He later recorded on an angle in his handwritten notes "constant numb ulna border arm, forearm, hand". These were recorded later and were unrelated to a mechanism of injury or event reported by Mr Stuart.
Dr Dalton said the wasting was clearly visible. Although acknowledging the difficulty in being exact with time periods, given the significance of the muscle wasting, he considered it had been present for six, 12 or more months. In relation to the sternoclavicular joint, Dr Dalton said that the CT scan showed degenerative change rather than an acute event.
In his second report to Dr Gonsalves, Dr Dalton states:
"The nerve conduction study confirms significant ulna nerve entrapment of the elbow. I don't believe the ulna nerve relates to anything in his work injury and this is a separate and ongoing problem for him."
Dr Dalton said in evidence that he formed this opinion because an injury to the arm was not reported to him. Further, the nerve conduction studies specifically pointed to the nerve being irritated at the elbow and the wasting was evidence of long-term ongoing irritation of that nerve. Taken together, "it wasn't part of the work-related injury as described in the mechanism to me. And it was most likely long-term unrelated component."
Dr Dalton said in cross-examination that severe muscle wasting was only partly related to the severity of the trauma. He acknowledged muscle wasting would be severe if the nerve was cut, but if it were squashed, then in most cases wasting is slow to develop. Given he was not provided any history of any injury to the ulna nerve itself and in light of the history and the degree of muscle wasting, he reached his opinion that muscle wasting was of longstanding.
In re-examination Dr Dalton said that had a severe event occurred where significant force had caused significant damage to the ulna nerve then it would be unlikely that Mr Stuart was able to continue to perform heavy manual work.
Conclusion
The medical evidence is that a direct knock to the ulna nerve at the elbow could cause the ulna nerve injury that Mr Stuart said was sustained by hitting his elbow on the drive shaft cover on 11 September 2012.
Counsel for the Appellant submits that Mr Stuart's version of events should be accepted as there has been no evidence contradicting it. The Commission acknowledges that it does not have the benefit of expert evidence to assist in determining whether it was possible for Mr Stuart to injure his elbow in the manner claimed. However, having heard Mr Stuart's evidence which was aided by photographs and his marking of them as to where he was standing and where he fell, a number of difficulties with his evidence arise, casting doubt over whether his elbow was injured at work by either falling forward or straight down. From either description given to the Commission, it is difficult to comprehend how he could hit both his right sternoclavicular joint and his right elbow. Further, as the Regulator submitted, given his description of his lifting motion with his right arm and elbow and his evidence that he did not at any stage let go of the pipe, he could not, plausibly, strike his elbow on the drive shaft cover with a bent arm.
Despite my reservations about the mechanism of injury, were the Commission to accept that Mr Stuart suffered severe trauma to his ulna nerve on 11 September 2012, then he might have some prospects of success in this appeal. However, I do not accept that he did firstly on the basis of his own evidence. He said he felt some immediate symptoms but continued to work as usual until his second injury on 18 October 2012. Had he experienced severe trauma, then it could reasonably be expected that he would have reported the injury to Mr Gill, Mr Roberts or Ms Single. He was aware of his obligation to report and this is the action he took in relation to the second injury. For reasons given earlier, I do not accept that the entry in the Injury Reporting Book is evidence of any elbow injury let alone severe trauma to his elbow.
Mr Stuart also failed to seek medical attention immediately or shortly thereafter. When he consulted Dr Patel there is a conspicuous absence of a report of any elbow symptoms in any of the consultations until 20 October 2012, two days after the second incident. Interestingly, he told Dr Soares that his symptoms developed around the same time as the 18 October incident. Further, Mr Stuart did not report any event where he injured his arm to Dr Dalton, his treating Orthopaedic Surgeon and the first of the Orthopaedic Surgeons to whom he was referred specifically for the elbow injury.
Dr Dalton said that the muscle wasting was severe when he examined Mr Stuart in January 2013. Dr Shaw opined that severe trauma to the elbow could have caused the degree of muscle wasting observed by Dr Dalton. I have considered Dr Shaw's evidence that a lay person might be unaware of an injury to their funny bone when it had been hit hard. There would be an expectation that it might improve. Mr Stuart said he continued to work despite the pain. It was only when he coughed and pain radiated down his arm that he sought medical treatment from Dr Patel. However, this was not reported to Dr Patel. Given the absence of reporting of the incident at work, to Dr Patel or Dr Dalton, I am not satisfied that Mr Stuart experienced severe trauma to his elbow in any incident on 11 September 2012. Further, while he reported to Dr Soares that he fell at work in September, he did not report having any elbow symptoms then but said they arose around 18 October 2012.
Dr Shaw acknowledged that Dr Dalton would be better placed to determine whether the muscle wasting was a longstanding condition. Dr Dalton was of the opinion that the muscle wasting he observed had been present for six to 12 months or longer. Dr Walters was of the same opinion.
The Appellant submits that had the muscle wasting been present for such a period of time he would not have been able to perform the duties of his position. However, the evidence of Dr Shaw, upon whom the Appellant seeks to rely, is that the absence of difficulties in the workplace gives greater weight to the view of Dr Dalton that the ulna nerve issue had been present for a significant period of time.
The Appellant also submits that weight should not be placed on the opinion of Dr Dalton as he appeared to misapprehend the work related injury that was the concern of the appeal. I accept that Dr Dalton seems to have mixed up the work events in his report to Dr Gonsalves on 8 January 2013. However, he referred to his hand written notes during the cross-examination and was able to elaborate and explain the notes he took and the findings he made in January 2013. What is clear from Dr Dalton's evidence is that Mr Stuart did not identify any work related incident that caused the ulna nerve symptoms. Nor did he do so in his examination with Dr Soares in December 2012, notwithstanding he had been specifically referred for the 18 October 2012 event. In fact he told Dr Soares that the paraesthesia arose around the same time as the 18 October incident. Given the advanced state of the muscle wasting in January 2013 observed by Dr Dalton, Mr Stuart's evidence that his symptoms had become progressively worse, and the event allegedly only occurred some three months earlier, it is odd that he failed to mention the strike of his elbow in a work fall of 11 September 2012 to either Dr Soares or Dr Dalton.
For these reasons, the Commission accepts and prefers the opinion of Dr Dalton to that of Dr Shaw.
It was noted at the outset that for Mr Stuart to succeed in this appeal he had to establish on the balance of probabilities that his injury arose out of or in the course of his employment and that employment was a significant contributing factor to the injury. The evidence casts considerable doubt about the version of events given by Mr Stuart, in particular, his failure to report the incident by either of the approved means and the failure to report his elbow symptoms to Dr Patel. The medical evidence accepted by the Commission also does not support his version of how the injury occurred.
For the reasons set out I am not satisfied that Mr Stuart has established either employment element of s 32 of the Workers' Compensation and Rehabilitation Act 2003.
Orders
1. The appeal is dismissed.
2. The decision of the Regulator is confirmed.
3. The Appellant is to pay the Regulator's costs of and incidental to the appeal or, failing agreement, to be the subject of a further application to the Commission.
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