Stutz v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 21
•30 January 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Gregory Stutz v Simon Blackwood (Workers' | |||||
| Compensation Regulator) [2014] QIRC 021 | ||||||
| PARTIES: | Gregory Stutz | |||||
| (Appellant) | ||||||
| v | ||||||
| Simon Blackwood (Workers' Compensation Regulator) | ||||||
| (Respondent) | ||||||
| CASE NO: | WC/2012/416 | |||||
| PROCEEDING: | Appeal against a decision of Simon Blackwood | |||||
| (Workers' Compensation Regulator) | ||||||
| DELIVERED ON: | 30 January 2014 | |||||
| HEARING DATES: | 9 and 10 July 2013 | |||||
| MEMBER: | Industrial Commissioner Black | |||||
| ORDERS : | 1. The Appeal is dismissed. | |||||
| ||||||
CATCHWORDS: | WORKERS' COMPENSATION – APPEAL AGAINST DECISION – decision of Simon | |||||
| Blackwood (Workers' Compensation Regulator) - appellant must establish on the balance of probabilities that he sustained an injury to his lower | ||||||
| back while operating a loader – mechanism of injury disputed – appeal dismissed – claim not one for acceptance – costs reserved. | ||||||
| CASES: | Workers' Compensation and Rehabilitation Act | |||||
| 2003, s 32(1), s 550 | ||||||
| APPEARANCES: | Ms L. Willson, of Counsel instructed by Shine Lawyers, for the Appellant. Mr F. Lippett of Counsel, directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. |
[1] Mr Gregory Stutz ("Stutz") appeals a decision of the Review Unit of the Workers' Compensation Regulator ("the regulator") to reject his application for workers' compensation.
[2] Stutz originally lodged his application for compensation with WorkCover on 8 May 2012. On his claim form he referred to an injury to the lower left back and said the injury was sustained while he was driving a loader at a feedlot at Mungindi. Stutz's employer at the time was Yeo and Co Pty Ltd (Yeo). Stutz visited his GP on 8 May 2012 where he was issued with a workers' compensation medical certificate.
[3] On 18 May 2012, WorkCover Queensland ("WorkCover") rejected Stutz's application for workers' compensation. On 15 August 2012, Stutz asked the regulator to review WorkCover's decision. On 2 October 2012, the regulator confirmed WorkCover's decision that Stutz's claim was one for rejection. Stutz now appeals this decision to the Commission pursuant to s. 550 of the Worker's Compensation and Rehabilitation Act 2003 ("the Act").
Issue for Determination
[4] The issue for determination in this appeal is whether Stutz suffered an injury arising out of, or in the course of, his employment if his employment is a significant contributing factor.
[5] 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."
Jurisdictional Documents
[6] The regulator tendered the following jurisdictional documents [Exhibit 1]:
WorkCover Queensland Application for Compensation (undated); WorkCover Queensland Reasons for Decision dated 18 May 2012; Q-COMP Application for Claim Review dated 15 August 2012; and Q-COMP Review Unit Decision dated 2 October 2012. Nature of the Appeal
[7] 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 he sustained an injury to his lower back in the manner described while operating a loader on 9 April 2012.
Evidence
[8] During the course of the proceedings, evidence was provided by 6 witnesses. The witnesses for the appellant were as follows:
Gregory Stutz; Shane Hearn; Tracey Panton; and Dr Donald Todman.
The witnesses for the Regulator were as follows:
Daniel Yeo; and Darren Carr. Background
[9] Stutz was employed by Yeo from 19 March 2012 to 23 April 2012. During his period of employment he resided in employer provided accommodation. When he was operating in the Goondiwindi area he stayed in dongas located on Danny Yeo's property. When he was engaged in carting manure from the Mungindi feedlot he stayed in a house at Talwood which was located about half-way between Goondiwindi and Mungindi.
[10] Stutz said that he sustained his injury on 9 April 2012. A review of the daily worksheets that he completed (in the evidence as Exhibit 7) provided information about his working and living arrangements. On 9 April Stutz spent the day operating the loader at the Mungindi feedlot. He worked for 11.5 hours commencing at 5.30am and finishing at 5.00pm. He did not stop work when the alleged injury occurred and continued working until the scheduled ceasing time. He commenced work the next morning (10 April) at 6.00am and worked for some time transporting material from the feedlot before commencing a 1010 kilometre round trip to Moura. He apparently completed the round trip without any substantial break and returned to Goondiwindi at 2.00am the following morning (11 April). All up Stutz had completed 19 hours work. It appears from the worksheet that Stutz resumed work at 7.00am on 11 April and finished work at 8.00pm that evening, however at some point during the day he took a three hour break. The worksheet also notes that he drove to Talwood on that day and it is presumed that he stayed at the house in Talwood overnight.
[11] Stutz stayed at the Talwood house on 9, 11, 12, and 13 April before taking five days off work. On 14 April he travelled by car to Hervey Bay for the purpose of attending his daughter's birthday party. On 18 April Stutz returned to Goondiwindi on a bus and he resumed work in the Goondiwindi area on 19 and 20 April. On 21 April Stutz stayed at the house at Talwood. On 22 April and 23 April Stutz worked out of Goondiwindi before ending his employment on 24 April 2012. On 24 April Stutz travelled back to Hervey Bay in a car he had bought from a co-worker.
[12] Stutz's evidence about how the injury occurred is set out at in the transcript at T1-4 to T1-5 as follows:
"I was working for Danny Yeo & Co and I was out at the Mungindi feedlot and
I had to load compost onto a road train and – and, having to do so, I have to go
in and get full buckets of the compost, go over to the big bins on the road train, lift them up and dump the contents into the trailers. With the contents being
moist and condensed, they never – always spilled out successfully, so you'd
have to shake the bucket to make sure the contents was all out before you went back to get another bucket full and to make sure the bucket was empty, because
we were going – we were regulated by bucketfuls to how much weight we need – how many bucketfuls – how much weight we needed for the load. And,
by doing the shaking, the counter weight was broken off and with the fully loaded bucket raised into the air to tip into the trails, 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.
…
Okay. And when do you say you started to feel pain? The moment it happened, when I'd come back down into the seat of the loader.
Did you actually lift off the seat? Yeah, I was thrown forward."
[13] Extracts from a diary kept by Stutz were in the evidence as Exhibit 10. The entry on 9 April 2012 included the following:
"Drive Hilux back to feedlot with Horse. Drive loader all day. Screening shit, making ready for farms. Removing all large lumps making finer for composting. Hard on my back, jerking and bouncing of loader. Loader has counter weight off back of loader. Shane broke it off. It was never put back on. It bounces far too much. Like riding a buck jumping horse. Making my back very sore indeed. Not game to say anything to boss as he is a very hard man to approach about anything let alone complaining about loader. He treats everyone like robots. Finish work. Drive back to house in Hilux with Horse."
[14] Dr Todman completed two reports following a consultation with Stutz on 2 April 2013. During his examination he reviewed an X-ray taken on 23 May 2012 and a CT scan taken on 12 September 2012. In the consultation Dr Todman commissioned an MRI scan of the lumbar spine and provided a second report (Exhibit 12) after reviewing the results of the MRI. In his first report (Exhibit 11) he diagnosed a chronic musculoligamentous strain to the lumbar spine, and lumbar disk protrusions. This diagnosis was altered following the review of the MRI scan to the extent that there was no disk protrusion evidence on the MRI scan. Dr Todman said that the MRI scan disclosed an improvement in the four disk protrusions that were first seen on the earlier imaging.
[15] It was the evidence of Dr Todman that the description of the injury provided by Stutz was "consistent with causing trauma to the lumbar spine". He accepted however that this conclusion was based on the history of the injury provided to him by Stutz. This history was recorded in the first of Dr Todman's reports (Exhibit 11) as follows:
"He was operating a loader on this day which had a broken counterweight. It had been raining at the time and using the bucket to lift involved flipping it so the material would come out. In this process there were numerous jolts from the shaking motion which caused his seat to move up and down. He recalls on one particular movement there was a strong jerking movement and he was thrown up and forward and he developed quite severe back pain all of a sudden."
[16] In his oral evidence Dr Todman stated at T1-68 that on "a probability basis, it seems more likely the cause and effect that it's probably an original work injury rather than something subsequent."
[17] Stutz was principally engaged as a truck driver in the carting of material including screened manure from the Mungindi feedlot. If a loader driver was not available to load manure into his truck the practice was that the truck driver completed this function. It was not in dispute that Stutz was operating a loader on 9 April 2012 nor that the counterweight was not fitted to the loader at the time. The counterweight had been accidentally removed from the machine while being operated by Hearn some time in the previous month. It is accepted that the loader should be operated at all times with the counterweight fitted and that the counterweight assists in keeping the load balanced and the loader stable particularly while loads above a certain weight are being carried.
Mechanism of Injury
[18] Yeo said that the loader had a safe working load in the order of eight to nine tonne a bucket. A bucket load of dry manure weighed in the order of three to three and half tonnes. Inclement conditions around 9 April may have meant that the manure being loaded was moist resulting in an increased bucket load weight on some occasions. In these conditions, Hearn and Stutz said that a bucket load of moist manure would weigh five tonnes. However both Carr and Yeo disputed this. Yeo said that a bucket load of moist manure would weight around 4 tonnes. It was Carr's evidence that if there was a shower of rain the manure could get a bit wet, but that the impact was limited because the manure "crusts on top and the water runs off" (T1-84). Carr said that a moist bucket of manure would be a bit heavier than a dry load but rejected the proposition that a moist bucket would weigh five tonne. Carr said that the capacity of the truck bins was around 50 tonne and it usually took him between 12 to 14 bucket loads to fill the truck. It followed that his bucket loads ranged between 3 and 4 tonnes in weight.
[19] Yeo said that the handling of moist manure was problematic. In the first instance, he said that the manure is screened before it is loaded onto the trucks and wet manure cannot be screened. Hence if the manure could not be screened, it was not available for loading and carting. Secondly, Yeo explained that, on delivery to the farms, the manure had to be spread. But the manure needed to be dry before it could be spread, therefore it would be pointless to transport wet manure from the feedlot. The effect of Yeo's evidence was that while manure could be carted with some moisture content, the level of moisture had to be limited to allow the screening and spreading of the manure. In these circumstances it was the effect of his evidence that the bucket weight of moist manure could not have been much more than four tonnes. This evidence was recorded at T1-78:
"Like I said, we – we do – in our business we – we spread the manure as well,
and to spread the manure it has to be dry. We cannot cart wet manure that
weighs five tonne a bucket. We cannot – you cannot do it. You can't spread it. So the – the – the theory that we've been cartin' five-tonne buckets into – and
droppin' that off, it just can't happen. We can't handle it at the other end."
[20] The unstable operation of the loader without counterweights is principally influenced by the weight of the bucket load and how the machine is operated while carrying the load. Other factors might also cause instability including the condition of the surface on which the loader was operated (an uneven or rough surface causing bumps), the height of the bucket, the speed of the loader, the improper operation of the machine such as dropping a fully loaded bucket, and sudden breaking.
[21] The evidence supported a conclusion that if the machine experienced instability it could lead to jolting and jarring effects on the operator. It was Yeo's evidence that a bucket load of five to five and a half tonne might cause the machine to tip or become unstable. At T1-74 he said:
"From your experience, are you able to say what would be likely to cause the
back wheels of the loader to lift off the ground?---A heavy load would – even with the counterweight on, and that would – with 10 tonne in it, would – it'd
make it light on the back, sort of thing. But not bounce off the ground."
And further at T1-78:
"But if – if - - -?---That machine with three tonne in that bucket – the bucket as
high as it can lift, it is not going to be unstable.
Okay. So, in your experience, how heavy would the bucket have to be for the
machine - - -?---Five – five tonnes. Five and a half tonne."
[22] Carr's evidence on the subject is recorded at T1-87:
"Now, you agreed that if there's a sudden, when you don't have the counterweight on, that you can get a jolting movement?---Only if you drop your bucket or hit the brakes hard, like, yeah. You'd have to be not drivin' it how you should to get it to happen, but it can happen.
Did it ever happen to you when you used the machine?---No."
[23] Hearn's evidence about the operation of the machine without counterweights was given at T1-49:
"And when you used the machine without the counterweight can you explain the impact it had on you as a driver?---Well it's a lot rougher without it. Like, its reason of being there is to equalise your weight. If you've got a bucket of
manure or dirt or gravel – whatever you're picking up, it's going to overbalance
it.
…
Okay. Thanks. And how did the machine move once you'd tipped the compost into the trailer?---Yeah, well as you lifted it full height you could feel it overbalance. You had to go steady otherwise if you jerked your bucket a little bit it would bounce the back wheels off the ground.
And how would that feel as a – as a driver?---It would jar you a little bit."
[24] During cross-examination Hearn was questioned further about the operation of the loader at T1-53 and T1-54:
"As you are raising the bucket and moving forward to come in to load a truck –
if you touched your brake that little bit hard it'd tend to lift the back wheels off
the ground - - -If you touched the brake a bit hard?--- - - - or if you hit a bump or anything and the weight hit the front.
Certainly. But simply the mechanism of raising the bucket couldn't cause the back wheels to come off the ground?---Well, if you raised your bucket that bit hard or let off your lever as you were raising it so it sort of came to a dead halt, to jar it in any way it'd - - -Yes. Certainly a jarring motion either by the manner of raising the bucket or braking hard, is that right?---Yep.
…
But it didn't need much of a shake just to knock out the residue?---Sometimes
it'd need a bit more than most, but yeah. Yes. But you didn't – there was no
need to ever be especially violent with it?---No. Not at all.
No. And when you did that, to shake it out, the loader would just stay on the ground?---It would.
Yes. The only time that loader without the counterweight could buck would be if you, well, lifted the bucket up very quickly and jarred, or jammed the brakes
on, or went over a great bump a – large bump or hollow?---Yep. Pretty well.
Is that fair comment?---Fair enough, yep.
Yes. Ordinary competent operation at a few metres in the circumstances at that feed lot wouldn't cause a bucking motion. Is that right?---No. Not if you kept your floor level enough, no."
Reasoning
[25] Stutz's description when giving his oral evidence of the mechanism of the injury is contradictory. His evidence is recorded at T1-4 and T1-5. In the first instance he said that the shaking of the bucket was completed because when the contents of the bucket were moist, the bucket never fully emptied in the first instance. This meant that the operator would then flick a switch enabling a shaking of the bucket which would clear any residual material from the bucket. In the second instance however, Stutz appeared to be suggesting that the injury occurred while shaking a fully loaded and raised bucket. The contradiction is 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.
[26] Carr's drew attention to the practice in his evidence at T1-84:
"When you gave the bucket a – that flick, did it cause the back wheels to – of the loader to come off the ground?---No, 'cause you – like, you've already
dumped the manure so there's no weight in the bucket. You're just shakin' the last bit out. If you had it up and dropped your bucket accidentally by mistake,
even with a counterweight on 'em they'll – they'll do that 'cause it's a sudden –
and you've still got all the weight in your bucket."
[27] In terms of the apparent contradiction in Stutz's description of how the injury occurred, I proceed 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.
[28] As the evidence unfolded both Carr and Yeo expressed the view that the injury could not have occurred in the manner described by Stutz. It was their opinion that, without a counterweight, the normal operation of the loader could not have produced an outcome wherein the operator was propelled upwardly out of his seat. Yeo had not operated the loader without the counterweight, but relied on over twenty years involvement with earthmoving plant to express his opinion. Carr on the other hand was in the same predicament as Stutz. He was primarily a truck driver but from time to time he was required to load his truck. Both Carr and Stutz had loaded their trucks using the loader without the counterweight.
[29] It was the regulator's submission that, on the balance of probabilities, the injury could not have occurred in the manner described by Stutz. Further that a consideration of events occurring after the date of the alleged injury created significant doubt about whether an injury had been sustained on 9 April 2012. In terms of the claimed mechanism of injury the regulator relied on the following facts and circumstances:
(i) Stutz said that he was thrown forward and lifted off his seat while he was shaking the bucket of the loader to remove manure that did not dislodge when the load was dumped in the first instance. However the evidence of Yeo, Carr and Hearn about what was needed to be done or what might happen to cause the loader to become unstable or cause severe jolting or
cause the back wheels to lift off the ground, did not substantiate Stutz’s
claim that the shaking of the bucket to remove residue could have caused
the effects that he described;(ii) In more particular terms, it would not have been possible for the machine to have moved in the manner described by Stutz given the confines within which the loader was operating (about 10 to 20 metres from stockpile to truck); the speed that the loader would have been travelling at (10 kilometres per hour); and the smooth condition of the surface being traversed; and
(iii) The loader would not have become unstable when residue was shaken from the bucket, if for no other reason than the load in the bucket at this point would have been minimal.
[30] Counsel for the appellant however submitted that an uncomplicated approach should be taken in determining the key questions. If findings were made on the evidence to the following effect, then section 32(1) of the Act was satisfied and Stutz was entitled to succeed in his appeal:
(i) that the loader driven by Stutz on 9 April did not have a counterweight;
(ii) that the general rule was that the machine should always be driven with the counterweight attached;
(iii) that the operation of the loader may become unstable without counterweights;
(iv) that on the day in question the loader was carrying bucket loads in the order of 5 tonne in weight;
(v) that the operation of the machine when carrying bucket loads in the order of 5 tonne or over could become unstable; and
(vi) that the operator could be subject to jolting and jarring in the circumstances described above.
[31] This submission being made in the context of the following matters:
(i) the evidence of Dr Todman which confirmed that the nature of the injury was consistent with the cause or mechanism stated by Stutz;
(ii) the evidence of Hearne who stated that Stutz had told him that he had injured his back in the period immediately following 10 April and that he observed Stutz moving with discomfort and pain; and
(iii) no other explanation was put forward in the proceedings proposing how the injury was sustained
[32] Hearn was the regular operator of the loader and it could reasonably be expected that he would have experienced the same difficulty that Stutz said he had experienced in operating the loader. That is, the machine could become unstable, the rear wheels might lift off the ground, and the operator might be jolted and jarred to an extent which caused him to be lifted off his seat and propelled forward. On the evidence, Hearn would have had operated the loader without the counterweight attached for about two to three weeks in the March/April period 2012.
[33] Carr had also operated the loader without the counterweight. Carr denied that
flicking or shaking the bucket to dislodge some manure that had stuck could cause the loader to bounce, cause jerkiness, or propel the operator up off his seat. It was his evidence that the operator would only experience a jolting movement if the bucket was dropped, in the case of sudden and hard braking, or if the machine was being improperly operated.
[34] The regulator conceded that Stutz did tell Hearn that he had a sore back, but submitted that this evidence did not support the claimed mechanism of injury because Hearn did not say that Stutz told him how he had hurt his back. As the regulator saw it, given that Hearn was the regular operator of the loader and given that it was Hearn who was responsible for breaking the counterweight, Stutz would have been expected to tell Hearn that his back pain arose from operating the loader without counterweights. It was significant therefore that Stutz appeared to have omitted to pass on this information to Hearn. Hearn's evidence about what he was told by Stutz is set out at T1-50:
"Okay. Now, you say that he looked a bit sore?---Yep.
Was there anything about the way he presented?---Just a little bit hunched over and sort of tight with his walking.
Did you have a discussion with him as to why he – what had happened?---
Slightly, not too much. We were both pretty busy.
Yeah. What did he - - -?---So - - -
- - - start to tell you?---Just that he'd had a sore back."
[35] As I follow the evidence, Hearn would have stayed with Stutz at the Talwood house on April 11, 12, 13, and April 21, 2012. Carr also stayed at the house during the week commencing April 9. While Stutz did not see Carr after work because Carr when to the local pub, Stutz would have encountered him in the house in the morning before work. It was Carr's evidence that he always saw Stutz at breakfast. Hearn said that in the first or second week of April Stutz told him that he had a sore back and he observed that Stutz appeared to be some discomfort in his stance and when walking. However, Carr said that Stutz said nothing to him about the injury and neither did he observe at any stage that Stutz was moving about with any discomfort or limitation. Hearn's interaction with Stutz in the week of the alleged injury would have been limited to these three days. While Stutz returned to Talwood on 21 April, Hearn did not give any evidence relating to Stutz's back pain on that particular day. Neither Yeo nor Carr had observed Stutz experience any difficulty in the completion of his work. Further, Yeo did not observe any limitation in movement when Stutz met with Yeo at the end of his employment.
[36] There was a conflict in the evidence about Stutz's stated reason for leaving his employment. Stutz said that he resigned because Carr had told him he was going to work out of Talwood and the Mungindi feedlot for the next two weeks. Stutz said that he was not prepared to work on the loader again. Stutz said that he told Yeo that this is the reason for leaving. Yeo denies that Stutz provided this reason for leaving while Carr said that he does not recall telling Stutz that he would be going back to the feedlot for two weeks. Carr said that Stutz could have said he did not want to work on the loader, but Carr did not recall such an exchange between Stutz and himself.
[37] A number of matters were raised in submissions and in the evidence which cast doubt over whether Stutz sustained an injury in the workplace on 9 April 2012. I now turn to a consideration of these matters.
(a)
Stutz continued to work as normal both on the day of the alleged injury and through until his employment ended on 24 April 2012.
(b)
Stutz did not report the injury to his immediate supervisor Carr or to his boss Danny Yeo. There was no reasonable cause for Stutz not to notify his employer of his injury. He was in regular contact with Carr and spoke to Yeo on a number of occasions. Also Stutz said in his diary note of 9 April 2012 that he drove home from work in the same vehicle as Carr.
Stutz's reason for not notifying his employer of the injury was to the effect that he might be subject to ridicule and that he did not want to convey an impression that he was weak or unable to handle the rigours of the job. These reasons are not adequate in the circumstances of this case and do not excuse him from making a notification. Also the stated reasons would not have prevented him from making a record of the injury on his daily worksheet on his last day of work (after he had decided to resign).
(c) Stutz did not make a note of his injury, or that he was in any way restricted in the performance of his normal duties, in his daily worksheet. Nor did Stutz include any reference in the worksheets about the machine being difficult to operate or unstable in its operation because of the absence of the counterweight. (d) The day after the injury was alleged to have occurred Stutz worked a 19 hour day involving normal work for part of the day and for the remainder he was engaged in driving a four wheel drive vehicle on a 1010 kilometre round trip from Goondiwindi to Moura and return, without abnormal difficulty. On 14 April Stutz travelled from Goondiwindi to Hervey Bay, returning on 18 April. While Stutz indicated that he experienced some back pain or soreness and needed to take breaks in these journeys, this outcome should not be considered exceptional or outside of the norm for most drivers completing long journeys. It was Dr Todman's evidence at T1-66 that these journeys could have been expected to have increased Stutz's pain:
"Would it be fair to say that some activities might worsen the pain? For instance, sitting still for a long period driving a car? A long period: say six or seven hours?---Well, yes, indeed. And this is what's indicated to me, and comes in my report, the different activities that have made his pain worse since it first came on."
…
On the Saturday, the 14th, he drove from Goondiwindi to Maryborough
and – would you expect that to, perhaps, bring about increased pain?---
How far is that? take breaks because of pain.
Well, if we assume there were – well, for whatever reason, a few
breaks?---Well, I think it's likely that a long drive would make his back
pain worse, and he'd probably have to stop to take breaks."(e) Stutz had driven the loader without counterweights about 10 times prior to the injury without incident. While Stutz said that on these prior occasions "it was jarring me around", he said that the loader did not do any damage on those occasions. (f) During his stay at Hervey Bay, Stutz's ability to complete a range of tasks around the house, including working in the garden and riding a small motor bike, was not indicative of an injury having been sustained prior thereto. In respect thereto Dr Todman observed that an increase in back pain may result from activities such as gardening and motor bike riding that Stutz undertook during his stay in Hervey Bay from 14 April to 17 April 2012. (g) Stutz appeared to be unaffected when he "fell arse over head out of 1
loader" in a workplace incident recorded in his diary on 21 April 2012. He would have been expected to have experienced some pain as a result of this fall given the nature of the injury allegedly sustained on 9 April 2012. This entry may suggest that Stutz was prone to some exaggeration in making his diary entries.
Doctor Todman opined that the fall from the loader described by Stutz could be an aggravating factor and depending on the nature of the fall would be expected to cause increased pain.
[38] The onus is on Stutz to establish on the balance of probabilities that he sustained an
injury pursuant to section 32(1) of the Act. Stutz’s evidence around the mechanism
of injury is disputed by both Yeo and Carr. Additionally there are a number of other factors which cast doubt on whether the injury was sustained on April 9 2012. It is in these circumstances that the evidence of Hearn could be considered pivotal.
[39] The difficulty for Stutz with Hearn's evidence is that it is not as compelling as it might otherwise be in providing support for Stutz's version of events. Given that Hearn was employed full time in the capacity of loader operator or driver and had been driving the loader without a counterweight for around three weeks, it could reasonably be expected that Hearn would have been able to endorse in more fullsome terms the mechanism of the injury described by Stutz. For example, in describing the impact on the operator of jerking a raised bucket load of five tonne, Hearn said that it would jar a little bit. Also, in cross examination Hearn conceded that ordinary competent operation would not cause a bucking motion and that when the bucket was shaken to remove the residue, the loader would stay on the ground. Hearn's evidence about what Stutz's told him about his alleged injury was also very limited. When asked about whether he had a discussion with Stutz about what had happened, Hearn relied "slightly, not too much". When asked what Stutz told him he replied "just that he'd had a sore back".
[40] Stutz's prospects would have been much better in my view if Hearn was able to recall a discussion between himself and Stutz in which Stutz gave a specific account about how he injured himself and if Hearn gave unambiguous evidence to the effect that it was possible for the operator to be propelled out of his seat when the bucket was shaken to remove the residue.
[41] While a significant part of the proceedings was directed at resolving the correct weight of a bucket load of moist manure, in the end result the resolution of this issue is not determinative. I accept that when the bucket was shaken to remove the residue the bucket would be carrying very little weight and, having regard to all the evidence, I accept that it would be very unlikely that the mechanism of the injury as stated by Stutz (sharking of the bucket to remove residue) could have led to a jolting motion of such severity that it would propel the operator upward, forward and out of his seat. In the circumstances I conclude on the balance of probabilities that Stutz could not have been injured in the manner described by him.
[42] Finally, Stutz’s failure to report his injury to either Carr or Yeo or note it on his
worksheet, his ability to continue to work as normal after the alleged injury and to complete a 19 hour shift the day immediately following the alleged injury, and his ability to perform a range of functions during his stay in Hervey Bay in mid-April 2012, are factors which do not provide circumstantial support for Stutz's claim.
Conclusion
[43] Stutz has not discharged his onus of satisfying the Commission on the balance of probabilities, that his injury has arisen out of or in the course of employment where his employment was a significant contributing factor to the injury. His appeal is dismissed. The question of costs is reserved.
[44] I order accordingly.
1
Extract from Stutz’s diary – Exhibit 10
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