Thomas Borthwick and Sons (Australia) Pty Ltd v Simon Blackwood (Worker's Compensation Regulator)
[2014] QIRC 180
•5 November 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Thomas Borthwick and Sons (Australia) Pty Ltd v | ||||||
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| Regulator) [2014] QIRC 180 | |||||||
| PARTIES: | Thomas Borthwick and Sons (Australia) Pty Ltd | ||||||
| (Appellant) | |||||||
| v | |||||||
| Simon Blackwood (Worker's Compensation Regulator) | |||||||
| (Respondent) | |||||||
| CASE NO: | WC/2013/346 | ||||||
| PROCEEDING: | Appeal against the Review Unit of the Worker's | ||||||
| Compensation Regulator | |||||||
| DELIVERED ON: | 5 November 2014 | ||||||
| HEARING DATES: | 27 and 28 February 2014 | ||||||
| MEMBER: | Industrial Commissioner Black | ||||||
| ORDERS : |
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CATCHWORDS: | Whether back injury sustained in the course of employment where employment was a significant contributing factor; employee complained that he injured his back at work while lifting boxes; disputes over facts; findings of credit adverse to employee not sufficient to found successful appeal. | ||||||
| CASES: | Workers' Compensation and Rehabilitation Act 2003 | ||||||
| s32 (1), s550 | |||||||
| APPEARANCES: | Mr P. T. Cullinane, Counsel, instructed by BT Lawyers, the Appellant Mr S. B. Gray, Counsel, directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Regulator. | ||||||
| Decision |
Introduction
[1] Thomas Borthwick and Sons Pty Ltd ("the appellant") appeals a decision of the Review Unit of the Workers' Compensation Regulator ("the regulator") to accept Mr Blair Zemek's application for workers' compensation.
[2] Zemek lodged an application for compensation with WorkCover on 16 May 2013. On his claim form he referred to a lower back injury sustained whilst lifting boxes in the boning room at work. Zemek obtained a workers compensation medical certificate from Dr Masud Haque on 16 May 2013 which recorded the injury as being a "Low Lumbar strain".
[3] On 24 May 2013 WorkCover Queensland ("WorkCover") rejected Zemek's application for workers' compensation. On 23 August 2013, Zemek asked the regulator to review WorkCover's decision. On 3 October 2013, the regulator set aside WorkCover's decision and determined that Zemek's claim was one for acceptance. The employer now appeals this decision to the Commission pursuant to s. 550 of the Worker's Compensation and Rehabilitation Act 2003 ("the Act").
Nature of the Appeal
[4] The appeal to the Commission is by way of a hearing de novo. The issue for determination in this appeal is whether pursuant to section 32(1) of the Act Zemek suffered an injury arising out of, or in the course of, his employment if his employment is a significant contributing factor. In more particular terms the appellant must establish on the balance of probabilities that Zemek did not sustain an injury to his lower back while lifting boxes on 16 May 2013. 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."
Exhibit 1
[5] The regulator tendered the following documents which were admitted into the evidence as Exhibit 1:
WorkCover Queensland Application for Compensation dated 16 May
2013; WorkCover Queensland Reasons for Decision dated 24 May 2013; Q-COMP Application for Claim Review dated 23 August 2013; and Q-COMP Review Unit Decision dated 3 October 2013
Evidence
[6] During the course of the proceedings, evidence was provided by 6 witnesses. The witnesses for the appellant were as follows:
Paul Peterson (Boning room superintendent); John Evans (HR Officer); Jye Kann (Co-worker); Rhonda Hertrick (Supervisor).
The witnesses for the regulator were as follows:
Blair Zemek (worker); Dr Masud Haque (GP).
Zemek said that he commenced work on 16 May 2013 at 5.00am. He completed an hour's overtime before starting work on packing duties on the northside of the boning room. The boning room is divided into the northside and the southside. Some time between 6.00am and 7.30am Zemek was asked by a supervisor, Valteon Ribeiro, to help out with clearing a backlog caused by a breakdown in the southside conveyor belt. Ribeiro told Zemek to shift boxes of meat from the stalled conveyor to a working conveyor. Zemek said that the distance the boxes had to be carried varied depending on the location of the box along the conveyor.
[8] Zemek agreed that the breakdown of the conveyor lasted about 8 minutes. Notwithstanding this Zemek said that the work he was required to perform extended for up to 20 minutes. Zemek denied that it was not necessary to lift the boxes and that the prescribed mechanism involved sliding boxes from the conveyor onto a trolley for transfer to the working conveyor.
[9] It was while he was lifting the boxes that Zemek said he injured his back. He did not notify his supervisor of the injury or seek permission to switch to light duties. Instead he took it upon himself to stop the lifting and to move across to the cryovac area to perform some work. He said that this work was lighter work and less physically arduous. It was in the cryovac area that he started working with Jye Kann.
[10] Very soon after his arrival in the cryovac area, Zemek was approached by the Plant Superintendent, Paul Peterson, and asked what he was doing in the area and why he was not assisting with the breakdown of the southside conveyor. Zemek told Peterson that he had a sore back and that he could not lift any more boxes. When Peterson asked if he had reported the sore back to first aid, Zemek said that he told Peterson that he had previously reported problems with his back to first aid. In the end result Peterson directed him to undertake work in a different area of the boning room which was regarded as light work.
[11] Zemek said that he worked in this area for 5 to 10 minutes until the 7.30am smoko break. During the break Zemek said that he went to the first aid office to report his injury, but it was not staffed at the time. However the HR Officer, John Evans, was in attendance and he directed Zemek to wait in his office while he arranged a meeting with Peterson. A meeting was then held in Evans's office where Peterson, Evans, and Zemek's support person, Alan Armstrong, were present. Zemek said that he was told that he had not reported his injury correctly and that he would face consequences. The meeting lasted about 10 minutes. Following the meeting Zemek said that Evans told him to go and see a doctor. Zemek left the site and attended on his general practitioner, Dr Haque. Dr Haque subsequently issued Zemek with a workers' compensation medical certificate.
[12] Zemek accepted that lifting at work on previous occasions had caused him to suffer minor back pain. He said that he had previously reported the pain to First Aid who treated the problem by applying heat spray to the affected areas. He was told to return if he experienced further symptoms. Zemek said that the pain he experienced on 16 May 2013 was more severe than that which he had experienced on any previous occasion.
[13] Zemek lodged an incident report in respect to his injury on 28 May 2013. The incident report is in the evidence as Exhibit 6. A handwritten statement of events was attached to the incident report. In the incident report he had said that the boxes needed to be moved a distance of up to 20 metres. Zemek said that while he had stated in his incident report that he was lifting boxes for 45 to 60 minutes, a more accurate assessment of the time would be around 15 to 20 minutes. The report indicated that that the incident was notified at 7.15am on 16 May 2013. It identified the supervisor as Paul Peterson.
[14] Zemek said that after his application was rejected by WorkCover he decided to ask Kann to provide a statement. He said that he drafted the statement and asked Kann to sign the statement if Kann agreed with its contents. The statement was drafted on 30 July 2013 which was two and a half months after the incident occurred. In his initial notification to WorkCover Zemek had indicated that either Peterson or Hertrick had witnessed the accident, however he did not make any mention of Kann.
Dr Haque said that Zemek came to see him on 16 May 2013. Zemek reported that he had been lifting boxes of meat weighing 27 kgs and that he had pain along the lumbar area. Dr Haque carried out a physical examination of Zemek and concluded that the mechanism of injury described by Zemek was consistent with his diagnosis of a low lumbar strain. Dr Haque issued a workers' compensation certificate for a period of incapacity from 16 May 2013 to 20 May 2013. The certificate which is in the evidence as Exhibit 8 certified that Zemek attended on Dr Haque on 16 May 2013 and that he was diagnosed with low lumbar strain. Dr Haque's clinical notes which were in the evidence as Exhibit 9 disclosed that Zemek attended on Dr Haque at 9.27am on 16 May 2013 and that he reported that he hurt his back while lifting meat boxes about 27kg in weight. Dr Haque next saw Zemek on 20 May 2013 when he issued a further certificate. Dr Haque accepted that, in terms of the claimed mechanism of injury, he can rely only on the history provided by the patient. He also acknowledged that a lower back strain can be caused by many different activities. Dr Haque said that Zemek did not report any previous history of back pain.
Rhonda Hertrick was employed by the appellant as a leading hand supervisor. Her particular responsibility on 16 May 2013 was to supervise the cryovac area. It was her evidence that the first time she became aware of Zemek in the workplace on 16 May 2013 was when Peterson approached her and asked her why Zemek was working in the cryovac area. Hertrick said that Peterson then yelled out to Zemek and engaged him in conversation. She did not take part in the conversation and did not hear what was said. She said the exchange lasted about five minutes and voices "got a bit loud". She said that soon after the conversation Zemek told her that Peterson wanted him to lift cartons but that he had refused to undertake this work. She said that Zemek did not refer to any injury. Hertrick then said she informed Peterson that Zemek would not lift cartons. Hertrick said that she did not ask Zemek to go to work in the southside of the facility when the conveyor broke, but admitted that someone else could have done so. She said that it was not unusual for this to happen when a conveyor breaks down. She did not see Zemek lifting boxes on the day. She said that she did not see anything in Zemek's demeanour on the day that suggested he was suffering pain or discomfort.
[17] On 16 May 2013 Kann was working in the cryovac area of the boning room. His job that morning was to transfer bagged meat from boxes onto a conveyer belt for delivery to the cryrovac machine. He said that the individual packets of meat in the boxes weighed about 10 kilograms. It was not his job to lift the boxes when full but to lift individual packets of meat out of the boxes. When he started work at 6.15am on 16 May 2013 Zemek was doing the same work as Kann. He first saw Zemek at about 6.20am.
[18] He said that he recalled a breakdown in the southside conveyor belt on the day. He said while he was not facing in the direction of the southside conveyor he could get a clear view of the conveyor if he turned around. He said that his workstation was located about 6 metres from the southside conveyor. He said that his duties on 16 May 2013 did not include any activity associated with this conveyor. Kann said that he worked continuously from 6.15am to around 7.30am when he paused for a smoko break. He said that just before or after the 7.30am smoko break, the southside conveyor broke down and he saw Zemek working on the southside conveyor where he was engaged in shifting boxes from the non-working conveyor to a working conveyor belt.
[19] At some point Kann said that Zemek came over and started assisting him with his job. He said that Zemek complained about having a sore back. Kann also said that this was not the first time that Zemek complained to him about a sore back. Kann agreed that it was during the period of time that Zemek was working with him that Peterson arrived on the scene and called Zemek away for a conversation. Following this conversation Zemek moved to a different work area.
[20] Kann said that it was his recollection that Zemek was engaged in moving the boxes sometime between 7.30am and 8.00am, however he accepted that the activity could have occurred before the 7.30am break. Kann agreed that it was difficult to pinpoint a specific time when Mr Zemek hurt his back, however he did remember that the conveyor had broken down. He could not recall how long Zemek was engaged in moving boxes. Kann said that he saw Zemek lift between 10 and 20 boxes. He said however that during his observations of Zemek he did not see Zemek display signs of pain or discomfort.
[21] Kann confirmed that Zemek approached him some time after May 2013 and asked him to provide a statement about what had transpired on 16 May 2013. He said that in the end result Zemek drafted the statement and asked him to sign it. Kann said that he signed the statement after he had read it and made sure that it was accurate. Kann said that Zemek included the date of the incident but he could not recall at the time when the incident occurred. Kann's statement was dated 30 July 2013 and is in the evidence as Exhibit 7. In the statement Kann says inter alia that he "witnessed Blair Zemek lifting boxes of meat from a conveyor that had stopped working then carrying the boxes to a working conveyor approximately 20 metres away."
John Evans was the human resource officer for the appellant. Evans said that he saw Zemek sometime around 7.30am to 8.00am on the morning of 16 May 2013. Evans confirmed that on that day Zemek scanned on to work at 04.49 am and clocked off work at 7.55am. He said that he convened a meeting in his office with Zemek and Alan Armstrong before Zemek clocked off. The meeting ran for about 20 minutes. Evans said that Petersen was not involved in the meeting. Evans said that around 7.30am he had been contacted by Peterson about an issue in the boning room involving Zemek.
[23] It was Evans recollection that in the meeting he asked Zemek about the issue in the boning room. Zemek said in response that he could not do the work because he had a sore back, but he did not specify the nature of the task. Evans said that Zemek did not say how he injured his back but he did say that he had reported his back condition the previous week to both Hertrick and First Aid. Evans however was not aware of any prior notification. In cross-examination Evans agreed that he "understood that the work activities Mr Zemek was talking about was when he was lifting boxes off this broken down conveyor belt".
[24] Evans agreed that he told Zemek that "it would be best for you to go to a GP to find out the extent of your injury to your back" (T1-26). Evans gave evidence about the incident report filed by Zemek. He did not disagree with Zemek's statement that he reported his sore back to a supervisor, who then sent him to see Evans, who in turn told him to see a doctor. He said however that during the meeting on 16 May 2013 that Zemek did not inform him that he had been lifting boxes for about 45 minutes to an hour.
Paul Peterson was the superintendent of the boning room which included responsibility for boning the product, cryovaccing the product and preparing it for shipment. Peterson explained that he was the overall supervisor of the boning room operations while Hetrick was the leading hand on the northside and Valteon Ribiero was the leading hand on the southside.
[26] Peterson confirmed that on 16 May 2013 Zemek started work early at 5.00am to assist in pre-operational setup tasks relating to the boning room. The conveyors would not have been operational at this point, nor would any heavy lifting have been undertaken at this time. When the set-up work was complete Zemek was assigned to learn a new task of packing on the north side of the boning room. For this work Zemek was under Hertrick's supervision. Peterson allocated Zemek the packing work at Zemek's request following an approach from Zemek a couple of days earlier. Peterson said that the new duties involved packing primal cuts in their correct weight ranges, an activity which did not involve heavy lifting.
[27] Peterson said the operations in the boning room commenced at 6.00 am. He said that the boning room smoko break commenced at 7:15 am. Peterson said that sometime between 7.00am and 8.00am he noticed Zemek in the cryovac area talking to Kann. He said that Zemek should not have been in this area at that time. He said that while the cryovac area may have been relatively close to the southside conveyor, the areas are separated by a number of conveyors. He conceded however that it would not take long to move from the southside belt to the cryovac area.
[28] Peterson initially approached the leading hand for that area, Hertrick, to ask her why Zemek was in the area. He then called Zemek out and put the question to
him. Peterson said that Zemek’s immediate response was "I can’t lift any cartons"
(T1-10). Zemek also said that he was not going over to the southside belt because he had hurt his back. When Peterson asked Zemek why he could not lift any cartons Zemek said because he had a sore back. Despite the questions being asked, Peterson said that Zemek did not explain how he had hurt his back or when he had hurt his back. Peterson said that Zemek agreed that he had not reported his injury to his supervisor. Peterson said that Zemek was argumentative during the exchange.
[29] When Peterson established that Zemek had not followed the correct procedures he decided to refer the matter to HR for advice. He told Zemek to wait while he made a phone call. He then followed Evans's advice and instructed Zemek to wait downstairs in the smoko room. In this regard he was following normal procedure wherein the supervisor was given an opportunity to brief HR before any meeting between HR and the employee. Peterson said that he explained to Evans what had transpired. Peterson suggested that he may have attended a meeting involving Zemek and Evans later in the day but he did not attend the meeting that took place around 7.30am in the morning.
[30] Peterson agreed that there were a number of breakdowns on the morning of 16 May 2013 including the breakdown on the southside conveyor. He said that the time lost through breakdowns was recorded. The record is in the evidence as Exhibit 4. It shows that a breakdown on the southside conveyor occurred between 7.15am and 7.30am and that 8 minutes time was lost. He said that when a breakdown occurs smokos are taken, hence the re-start time for the conveyor would have reflected that a smoko was also taken between 7.15am and 7.30am. A further breakdown occurred between 7.45am and 8.15am resulting in 30 minutes lost time.
[31] It was Peterson's evidence that, in the event of conveyor breakdowns, the procedure was to organise a team of workers to remedy the problems caused by the breakdown. The team included workers drawn from other areas of the boning room. Peterson did not know which workers were asked by Ribeiro on 16 May 2013 to go and help out, but he accepted that it was possible that Zemek had been asked to assist. He said that the work involved manually moving boxes of meat down the belt line. This is done by sliding the boxes along the belt, not by lifting the boxes. Peterson said that heavy lifting was not required, however he acknowledged that on some past occasions workers have lifted the boxes. He said that these workers were reprimanded for not following correct procedures. Peterson said that he did not see Zemek lifting boxes at any time on 16 May 2013 including during the period of the conveyor breakdowns. He agreed however that he did not supervise the work performed following the breakdown because he was required to attend to another machinery failure elsewhere in the boning room. He said that Ribeiro was tasked with the responsibility of managing the breakdown of the southside conveyor.
Findings of Fact
[32] A consideration of all the evidence leads me to make the following findings in areas which may be determinative:
(i) Zemek commenced work at 5.00am on 16 May 2013. He completed an hours overtime before being assigned to packing duties on the northside of the boning room where he was under the supervision of Hertrick;
(ii) Kann commenced work at 6.15am in the cryovac area. He first saw Zemek around 6.20am
(iii) At 7.15am the southside conveyor belt failed and Zemek was one of a number of employee directed by Ribiero to assist in recovery work;
(iv) The breakdown coincided with the 7.15am smoko break. It took 8 minutes to get the belt functioning and it resumed operations at 7.30am;
(v) For around 10 minutes Zemek was engaged in shifting, or carrying 27 kg boxes of meat which needed to be moved once the conveyor stalled. Zemek carried between 10 and 20 boxes;
(vi) Prior to 7.30am Zemek took it upon himself to leave the southside conveyor and move to the cryovac area where Kann was working;
(vii) Zemek complained to Kann about his sore back. Kann said that this was not the first occasion that Zemek had complained to him about a sore back;
(viii) While Zemek was talking to Kann, Peterson arrived on the scene and noticed that Zemek was not working in the area assigned to him;
(ix) When Peterson confronted Zemek about why he was out of his area, Zemek told him that he was not going to lift any more boxes and that he had hurt his back. Zemek agreed that he had not reported the injury to his supervisor;
(x) Peterson was concerned at Zemek's conduct in that he had not followed procedures about notifying a supervisor in the event of injury nor did he get permission to leave his assigned work area. He decided to report Zemek to HR. He told Zemek to wait while he phoned John Evans. After discussing the matter with Evans, he sent Zemek down to the smoko room and told him to wait there until Evans collected him.
(xi) Zemek's conversation with Peterson had been observed by Hertrick. She spoke to Zemek after the conversation and Zemek told her he would not lift any more boxes;
(xii) After Evans had been briefed by Peterson he met with Zemek and Armstrong. During the meeting Zemek was counselled in respect to his breaches of procedure. When Zemek said that he had hurt his back Evans directed him to attend on his GP for treatment. Peterson was not involved in this meeting;
(xiii) Later in the day Zemek returned to work with a workers' compensation medical certificate;
(xiv) Kann was the only person who saw Zemek lifting the boxes of meat. Neither Peterson nor Hertrick saw him lifting boxes. Neither Kann, nor Hertrick, nor Peterson noticed anything in Zemek's presentation or demeanour that suggested he was experiencing pain or discomfort. No one actually saw Zemek hurt his back.
[33] I resolve any conflict in the evidence about Zemek's movements immediately after
the discussion with Peterson, by preferring the evidence of Peterson. Zemek's evidence in the proceedings was to the effect that Peterson did not instruct him to report to HR but that he only encountered Evans when he went to First Aid to report his injury. However this is not what Zemek said in his incident report when he stated that "I then reported it to the supervisor and he sent me to go see John Evans after John Evans told me to go see a doctor to see if I was injured".
[34] Peterson's version is consistent with Evans's evidence and with Zemek's prior
statement. It is also consistent with the facts overall. Zemek did not find himself in the HR office with a support person simply because he stumbled into Evans in the first aid room. He was in the HR office because Peterson reported him to Evans for breaches of procedure. This was acknowledged by Zemek in his evidence when he said that he was told in the meeting that he would face the consequences of his breach of procedure. Zemek was in the HR office to participate in a disciplinary discussion. This is why Alan Armstrong was present.
[35] Zemek's evidence that he was carrying 27kg boxes of meat is accepted on the basis that it was supported by Kann. While Kann's evidence was unambiguous it did reflect the contents of a statement that he had signed on 30 July 2013 and which was prepared for him by Zemek. There was a reservation about how Zemek may have elicited the contents of the statement from Kann and whether the content reflected Kann's independent recollection of events. This was a particular concern given that the statement was signed ten weeks after the event. Notwithstanding this it was Kann's evidence that he would not have signed the statement if he were not satisfied that the contents were true. Further the accuracy of his recollections was assisted by the fact that Kann recalled the breakdown in the southside conveyor and remembered Peterson call Zemek out and remonstrate with him. These recollections assisted him in linking the events to the date nominated by Zemek of 16 May 2013. In the circumstances I am prepared to accept Kann's evidence as being true and correct on a balance of probabilities finding.
Appellant's Case
[36] It was the appellant's position that Zemek's back injury was not sustained at work and that his lower back condition or injury predated 16 May 2013. It followed that he had no entitlement to compensation. The following factors supported the appellant's case:
No one saw Zemek injure himself and no one observed by reference to his demeanour or presentation that he was displaying signs of discomfort or pain;
Zemek did not report the injury to his supervisor or to First Aid. Zemek was only prompted to raise the injury when Peterson found him outside of his assigned work area talking to Kann;
Peterson said that the relevant work procedures did not involve lifting
boxes and that employees were instructed not to lift boxes; Zemek's chronology of events is not supported by the evidence;
Despite Zemek's initial claim that he was lifting boxes for up to 60 minutes and his revised claim that he was lifting boxes for up to 20 minutes, he could not have been lifting boxes for more than 10 minutes;
The accuracy of Kann's evidence is in question given that his evidence was not based on his independent recollection but on a statement prepared for him by Zemek about 10 weeks after the date of the alleged injury;
Inconsistencies in Zemek's version of events undermine his credibility. While Zemek said in notifying WorkCover of his claim that Peterson and Hertrick witnessed the activity that caused his injury (which was not true), he subsequently claimed that Kann had witnessed the activity. He did not refer in his incident report to Valteon Ribeiro despite the fact the Ribeiro's instruction to Kann was a very significant consideration;
In Zemek's incident report he said that he reported his injury to his supervisor and that his supervisor directed him to report to John Evans. However in the proceedings Zemek claimed that Petersen did not instruct him to go to HR, but that he met Evans by coincidence when he went to First Aid to notify them of his injury;
It was not to Zemek's credit that he initially denied that he had previously complained to Kann about a sore back. Kann's evidence of past complaining also contradicted the history provided to Dr Haque where Zemek reported that he had no previous history of back pain;
On 16 May 2013 Zemek told Dr Haque that there was no radiating pain, but in his own evidence in the proceedings he said that he did experience radiating pain only two hours earlier on the same day.
Regulator's Submissions
[37] The regulator submitted that notwithstanding the variation in estimates of when events occurred, or how long they took, the essential facts could not be disputed:
Zemek was working on the 16th of May 2013;
While he was working on the northside the southside conveyor belt broke down resulting in the redeployment of some workers from their normal work areas. These workers were tasked with helping to clear up the backlog of boxes of meat that were static on the stalled conveyor belt;
Zemek was among the workers redeployed and he commenced the work of moving 27kg boxes of meat from the non-working conveyor to a working conveyor;
Peterson agreed that there was a breakdown in the southside conveyor chain. He accepted that some workers would have been transferred from other areas of the boning room to the southside conveyor to help out. While he said that it was not necessary to lift the boxes of meat, he did concede that there had been occasions in the past when workers have lifted the boxes when the conveyors have broken down;
Peterson was not directly involved in the recovery operation at the southside conveyor because of the failure of another piece of machinery at the same time. Consequently Peterson was not on hand to observe the work being done at the southside conveyor immediately following the breakdown. He had tasked Ribeiro to manage the southside conveyor failure;
The appellant's proposition that Zemek did not lift any boxes on 16 May 2013 was contradicted by Kann. It was Kann's evidence that on the day that the conveyor belt broke down he saw Zemek lifting the boxes off the broken conveyor belt and carrying the boxes for up to 20 metres to a working conveyor belt. He says he saw him doing that about 10 to 20 times;
While the reliability of Kann's statement was called into question by the appellant it was noted that Kann asserted that he would only sign the statement if he were satisfied that the contents were correct;
The work assigned to Zemek was physically demanding with the
requirement to lift boxes of meat weighing 27 kgs;
Dr Haque's evidence was that the injury was consistent with the mechanism described by Zemek. Further the report of Dr Martin in the evidence as Exhibit 2 concluded that Zemek probably suffered from lumbar muscle strain and that there had been no aggravation of a pre- existing condition.
[38] According to the regulator these facts were sufficient to support a balance of probabilities finding that Zemek injured his back at work on 16 May 2013.
Conclusion
[39] The evidence established that there was only a small window of time within which Zemek could have sustained his injury. The window commenced at 7.15am when the conveyor failed and ended at 7.30am when the conveyor restarted and when Zemek commenced his smoko break. The down time for the conveyor was eight minutes, but Zemek said some work was required to be done after the conveyor had
restarted. On Zemek’s account he shifted boxes from the southside conveyor to a
working conveyor for about 15 to 20 minutes. When he hurt his back he walked over to the cryovac area and started performing some light work for a short period of time. Soon thereafter he was engaged in conversation by Peterson. When the conversation ended Zemek said that he worked in a different area for about 5 to 10 minutes before the 7.30am smoko break. If five minutes is allowed for the short period of work in the cryovac area and the conversation with Peterson, then on Zemek's evidence he was occupied for between 25 and 35 minutes following the failure of the southside conveyor at 7.15am.
[40] The problem for Zemek is that this version of events cannot be reconciled with the evidence which established that Zemek could not have been working on the southside conveyor for more than ten minutes. It was this analysis of activity that underpinned the appellant's submission that Zemek's version of events was flawed, particularly in a context where Zemek had initially claimed in his incident report that he was carrying boxes for up to 60 minutes. However, while Zemek's version clearly lacked precision and raised doubts about his reliability as a witness, his inaccuracies do not preclude a conclusion that he could have injured himself in the manner claimed. Kann's evidence that he saw Zemek lifting and carrying ten to twenty 27kg boxes is sufficient to establish the possibility. Even if Zemek was only engaged in this activity for ten minutes, this may have been sufficient to cause the injury. Both Dr Haque and Dr Martin provided a diagnosis that this mechanism would be consistent with the injury that Zemek presented with on 16 May 2013. Neither doctor relied, in arriving at their diagnosis, on the fact that Zemek may have been lifting the boxes of meat for a specified period of time.
[41] The appellant relied on Zemek's exaggeration of the time spent lifting boxes and other inconsistencies in his case to press for a finding of credit adverse to Zemek.
The proposition was to the effect that if Zemek’s credit could be undermined in
circumstances where no one saw Zemek injure himself, and no one observed from his demeanour or presentation that he was in pain, then the Commission would be entitled to be sceptical of Zemek's claim that he had hurt his back while lifting boxes at work on 16 May 2013. Some of the claimed inconsistencies arose from prior statements or information provided by Zemek to WorkCover during the investigation of his claim.
[42] When Zemek completed his WorkCover claim form on 16 May 2013 (Exhibit 1) he said that he sustained his injury while lifting boxes and that he reported his injury to John Evans. There is no significant misrepresentation of the facts in this regard. Nor is it significant in the determination of this appeal that Zemek omitted to mention Kann or Ribeiro in his dealings with WorkCover or that he nominated Peterson or Hertrick as witnesses. What information Zemek provided to WorkCover would have influenced by what questions he was asked. The significance of Kann's or Ribeiro's views may not have been known to Zemek at the time. If asked who he thought may have witnessed his injury, it was not unreasonable that he would have put forward Hertrick and Peterson given that he spoke to them very soon after when he claimed he injured himself and told them about his injury. These questions remain speculative because the relevant WorkCover officer was not called to give evidence. Further, the WorkCover investigation was completed before 24 May 2013 when its decision was issued and Zemek would not have been given much time to reflect or investigate.
[43] The fact that Zemek may have more forensically reviewed the circumstances associated with his injury after WorkCover rejected his claim was not surprising. Nor is it unexpected that this process may have resulted in new or different material emerging. It follows, for the reasons just canvassed, that I am not inclined to make too much of some of the inconsistencies complained about by the appellant.
[44] Despite the fact that I have, in some instances, preferred the evidence of the appellant to the evidence given by Zemek, an overall review of the facts supports a balance of probabilities finding that Zemek was injured in the manner claimed on 16 May 2013. The factual findings establish that Zemek was engaged in relatively heavy work which could have caused a low back injury. When Zemek sustained his injury he took it upon himself to stop doing the work and relocate himself to an area where heavy lifting was not required. Immediately thereafter Zemek made it clear to Peterson, Hertrick and Evans that he had hurt his back lifting the boxes. Apprised of this information, Evans directed Zemek to attend on his general practitioner for assessment and treatment to the extent necessary.
[45] While Kann, Peterson, and Hertrick agreed that Zemek, in his presentation or demeanour, did not give any indication of pain or discomfort, Zemek did attend on his GP very soon after the point in time that he claimed that he injured himself. Further, the contemporaneous medical records of his consultation disclose that Dr Haque's examination established that Zemek had pain along the lower lumbar area, pain when bending, lateral movement pain and hip pain. Further Dr Haque confirmed that the mechanism of injury described by Zemek was consistent with the injury he diagnosed. This contemporaneous reporting of his injury to his doctor, the medical evidence about pain, the fact that Zemek had consistently told Peterson, Hertrick and Evans that he had hurt his back lifting boxes on the southside conveyor, are all factors which mitigate in favour of rejection of the appeal.
[46] The appeal is dismissed and the matter of costs is reserved.
[47] I order accordingly.
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