Stutz v Blackwood

[2014] ICQ 29

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Stutz v Blackwood [2014] ICQ 029

PARTIES:

GREGORY JOHN STUTZ
(appellant)
v
SIMON BLACKWOOD (WORKERS COMPENSATION REGULATOR)
(respondent)

CASE NO/S:

C/2014/9

PROCEEDING:

Appeal

DELIVERED ON:

31 October 2014

HEARING DATE:

2 July 2014

MEMBER:

Martin J, President

ORDER/S:

Appeal dismissed.

CATCHWORDS:

WORKERS’ COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – NATURE AND SCOPE OF APPEAL AND REVIEW – where appellant claimed he injured his back while driver a loader at a feedlot – where his claim for compensation was rejected and appealed to the Commission – where the Commission found that the appellant had not discharged his onus of satisfying the Commission on the balance of probabilities that his injury arose out of, or in the course of, his employment and the employment was a significant contributing factor to the injury – whether this finding was in error – whether an appellant is required to show an error of law or unreasonable conclusion on the part of the Commission to succeed on appeal

Workers’ Compensation and Rehabilitation Act 2003, s 561

Industrial Relations Act 1999, s 341(2)

CASES:

Davidson v Blackwood [2014] ICQ 008
Pouesi v Q-Comp (C/2013/4) – Decision
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APPEARANCES

L Willson for the appellant, instructed by Shine Lawyers
F Lippett for the respondent, directly instructed by the Workers’ Compensation Regulator

1. Mr Stutz claims that he injured his back while driving a loader at a feedlot in Mungindi.  His claim for compensation was rejected and he appealed to the Commission. 

1. The issue before the Commission was whether or not he suffered an injury arising out of, or in the course of, his employment and if the employment was a significant contributing factor to the injury. 

1. The Commissioner found that the appellant had not discharged his onus of satisfying the Commission on the balance of probabilities that his injury did arise in the manner set out above. 

1. In the outline of argument filed on behalf of the appellant reliance is placed on a decision of Hall P in Pouesi v Q-Comp[1] where his Honour said:

“To succeed in an appeal under section 561(1) of the Act an appellant is neither required to show an error of law nor required to show that the decision of the Commission is unreasonable. However, the decision must be shown not to have been reasonably open.”

[1](C/2013/4) Decision < type="1">

With respect, that approach is not correct.  The correct approach is that which has been set out in Davidson v Blackwood[2] where the following appears:

[2][2014] ICQ 008.

“[8] Section 561 of the Act provides:

‘(1)A party aggrieved by the industrial magistrate’s or the industrial commission’s decision may appeal to the industrial court.

(2)The Industrial Relations Act 1999 applies to the appeal.

(3)The appeal is by way of rehearing on the evidence and proceedings before the industrial magistrate or the industrial commission, unless the court orders additional evidence be heard.

(4)The court’s decision is final.’ (emphasis added)

[9]         The powers of the Court on appeal are found in s 562:

‘(1)In deciding an appeal, the industrial court may-

(a)confirm the decision; or

(b)vary the decision; or

(c)set aside the decision and substitute another decision.

…’

[10]These provisions are of similar effect to those considered by the High Court in Allesch v Maunz. In considering the difference between an appeal by way of rehearing and a hearing de novo it was emphasised that, in the former type of appeal:

(a)the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, and

(b)an appellate court can substitute its own decision based on the facts and the law as they then stand.

[11]Further consideration was given to the characteristics of an appeal by way of rehearing in Fox v Percy. In the joint judgment of Gleeson CJ, Gummow and Kirby JJ the following is said:

‘[22] … The ‘rehearing’ does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. …

[23] … On the one hand, the appellate court is obliged to ‘give the judgment which in its opinion ought to have been given in the first instance’. On the other, it must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.

…

[25] … the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’’

[12]Neither of the appellant’s submissions set out above are correct. First, this Court considers the Commission’s decision, not that of Q-COMP. Secondly, this is an appeal by way of rehearing, not an appeal de novo.

[13]As for the respondent’s reference to the decision in Ungerer, the correct statements of principle are those contained in Allesch v Maunz and Fox v Percy as set out above.” (emphasis added, citations omitted)

Background

1. Mr Stutz was employed, in his primary job, as a driver of a road train loaded with compost made from feed lot manure.  Ordinarily, another person assisted in loading the trucks but, when that person was absent, each truck driver was required to load his own vehicle using a front end loader.  The loaders were constructed with a counterweight incorporated into the structure in order to assist with the stability of the vehicle.  The counterweight on the loader used by Mr Stutz broke off some short time before the incident of which he complains.

1. The injury for which the appellant seeks compensation did not occur as a result of a series of events, rather the appellant relies upon a particular incident said to have occurred on 9 April 2012.  He said that on that date “with the fully loaded bucket raised into the air to tip into the trail[er], shaking cause a loader to do a bucking, which threw me out of the seat, and when I come back down, I hurt my back”.

1. The appellant said that he immediately started to feel pain when he came back down into his seat.  He said he had been thrown forward and suffered a sharp pain in his lower back when he returned to the seat.

1. The loader had been used by Mr Stutz on a number of occasions prior to this incident and his back had not been hurt when he had previously used the loader.  He did, though, notice some jarring caused by the movement of the loader.

1. Other witnesses gave evidence about the use of the loader.  One of the operations which had to be undertaken when using the loader was, after having emptied the bucket into a truck, to shake the bucket slightly in order to empty it completely.  This was more likely to be necessary when the manure was wet and, so, did not emerge easily from the bucket into the truck. 

1. The person who was the main user of this particular loader, Mr Hearn, gave evidence that if an operator jerked the full bucket when it was at its full height, the back wheels bounced, and caused the driver to “jar a little bit”. 

1. Another employee, Mr Carr, said that he had never suffered jolting when using this particular loader.  He, though, had not driven the loader after the counterweight had broken off.  Mr Carr did say that he had not received any complaints from other drivers about that particular loader.

1. After the incident in which Mr Stutz said his back was hurt, he continued working for the rest of the day and then drove to Moura, a distance of about 1,000 kilometres, and returned with a part for a machine.  He was required to drive a truck and a different loader at another work site and a few days later drove some six or seven hours to Maryborough in a small car.  He stayed at Maryborough for the next three days before catching a bus back to Goondiwindi.  During that period in Maryborough, Mr Stutz road a small motorcycle around a domestic yard, weeded the garden and repaired a motorcycle.  Although Mr Stutz was an inveterate diarist, he made no entries during that time which referred to any back pain.  That did not occur until he returned to Goondiwindi and resumed truck driving.

1. No complaint was made by Mr Stutz to anybody in a managerial role.  He gave reasons for not doing this.  They included that his employer was not the type of person to whom he felt comfortable complaining; he did not think there was any reason to mention his back injury; if he had mentioned it, then it would have made him appear to be a “sook”; he was not a complaining type of person; and he was concerned that he might be ridiculed if he mentioned the pain. 

1. One of the requirements of his employment was to complete a worksheet each day.  Those worksheets were compiled at the end of each week and, although he sometimes wrote comments on the sheets, he did not make any mention of hurting his back while operating the loader.

The Commissioner’s reasons

1. The Commissioner found that Mr Stutz’s description of the manner in which his injury occurred was contradictory.  The first time he gave evidence he said that he had to shake the bucket on the loader in order to empty the bucket.  The second time he referred to the incident he appeared to be suggesting that the injury occurred while shaking a fully loaded and raised bucket.  The Commissioner thought this significant “because while the evidence may support a finding that shaking a fully loaded and raised bucket could cause the back wheels of the loader to lift from the ground and cause instability and jolting; the evidence is much less likely to support a finding that the shaking of a near empty bucket will cause the same effect”. 

1. The Commissioner went on to say that he proceeded on the basis “that Stutz was not asserting that the injury occurred as a result of him deciding to shake a fully loaded and raised bucket before first emptying the bucket into the truck bin.  If this was the specific mechanism of injury to be relied upon it was not put to other witnesses in these terms.  Nor was any explanation provided by Stutz about why the removal of the load from the bucket would not be left to gravity in the first instance, which was the practice according to Carr”. 

1. The Commissioner also referred to the evidence by Mr Carr and Mr Yeo and their view that the injury could not have occurred in the manner described by Stutz.  Although Mr Yeo had not operated the loader without the counterweight, he had 20 years experience with earthmoving plant to support his opinion. 

1. The Commissioner engaged in a detailed and logical examination of the evidence and considered carefully the matters which were raised before him both in evidence and in submissions.  He referred to the conduct of Mr Stutz following the injury, his failure to make a complaint, his failure to make any note of his injury, and his long distance road trips immediately following the injury which did not appear to cause him undue harm.

Conclusion

1. This is a case in which, after a careful consideration of all the evidence, the Commissioner found that he could not be satisfied on the balance of probabilities that the injury suffered by Mr Stutz arose out of or in the course of employment.  This was a finding open to him on the evidence. It was supported by evidence which he accepted and which was contrary to that advanced on behalf of the appellant.

1. The appellant has not established any error in the requisite sense. 

1. The appeal is dismissed.