Tyson Alborough v Workers' Compensation Regulator - [2018] QIRC 110

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Tyson Alborough v Workers' Compensation Regulator [2018] QIRC 110
PARTIES:	Alborough, Tyson Appellant v Workers' Compensation Regulator Respondent
CASE NOS:	WC/2015/268 WC/2015/269
PROCEEDING:	Appeal against decisions of the Workers' Compensation Regulator
DELIVERED ON:	28 August 2018
HEARING DATE:	29 November 2017 27 April 2018 21 – 24 May 2018
MEMBER:	Vice President Linnane
ORDERS :	1. The appeal in WC/2015/268 is dismissed. 2. The decision of the Workers' Compensation Regulator dated 15 September 2014 to reject the Appellant's back injury is confirmed. 3. The appeal in WC/2015/269 is dismissed. 4. The decision of the Workers' Compensation Regulator dated 15 September 2015 to reject the Appellant's psychiatric injury is confirmed. 5. The Appellant is to pay the Workers' Compensation Regulator's costs of, and incidental to, the appeals.
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION – PHYSICAL INJURY – whether the Appellant' s low back pain arose out of, or in the course, of his employment. WORKERS' COMPENSATION – APPEAL AGAINST DECISION – PSYCHIATRIC OR PSYCHOLOGICAL INJURY – whether an anxiety and depression disorder arose secondary to a physical low back pain.
CASES:	Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 6 MacArthur v WorkCover Queensland [2001] QIC 21 Stark v Toll North Pty Ltd [2015] QDC 156
APPEARANCES:	Mr M Horvath of Counsel instructed by Nathan Lawyers for the Appellant. Mr S. Gray of Counsel directly instructed by the Workers' Compensation Regulator for the Respondent.

Decision

This proceeding involved two appeals by Tyson Alborough (Appellant) against decisions of the Workers' Compensation Regulator (Regulator). The first appeal (WC/2018/268) is one filed in the Industrial Registry on 9 October 2015 against a decision of the Regulator dated 15 September 2015.

On 3 November 2014 the Appellant lodged an application for workers' compensation with Woolworths Limited Workers Compensation Self Insurance Scheme (the self-insurer) for a right side inguinal hernia said to have been sustained during the course of his employment as a retail assistant with Woolworths Limited trading as BWS (BWS). That injury was alleged to have been sustained over a period of time whilst the Appellant was carrying out his duties at various locations including BWS Springfield.

The self-insurer accepted the Appellant's claim and workers' compensation benefits were paid to the Appellant. The Appellant, after claiming compensation for the hernia injury, also complained of a back injury said to have arisen from a period of inactivity whilst awaiting the hernia surgery and in convalescing from the hernia surgery.

In a decision dated 22 April 2015 the self-insurer rejected the Appellant's application for a lower back injury. The Appellant's sought review of that decision to the Regulator. By its decision dated 15 September 2015, the Regulator confirmed the self-insurer's decision that the claim in respect of a lower back injury should be rejected.

The Appellant now appeals that decision of the Regulator in WC/2015/268.

The second appeal (WC/2018/269) is one filed in the Industrial Registry also on 9 October 2015 against a decision of the Regulator also…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] QIRC 110
Decision Date: 28 August 2018

CaseChat Overview and Summary

The appeal in Tyson Alborough v Workers' Compensation Regulator was before the Court, where the Appellant sought to overturn the decisions made by the Workers' Compensation Regulator regarding his claims for workers' compensation. The Appellant alleged that his low back pain and a subsequent anxiety and depression disorder arose out of, or in the course of, his employment as a pallet jack operator. The Appellant's claims were rejected by the Regulator on the basis that his back injury did not arise out of his employment and that his psychiatric injury was not a result of a compensable physical injury.

The primary legal issues before the Court were whether the Appellant's low back pain arose out of, or in the course of, his employment, and whether an anxiety and depression disorder arose secondary to a physical low back pain. The Appellant contended that his low back pain was a result of a workplace incident where he slipped and injured his groin, which subsequently affected his back. He argued that his psychiatric injury was a direct result of the pain and disability arising from his physical injury.

The Court examined the evidence presented, including the Appellant's testimony, medical records, and the findings of medical experts. The Court found that the Appellant's low back pain did not arise out of, or in the course of, his employment, as there was no direct connection between the incident and the back pain. The Court also determined that the psychiatric injury did not arise secondary to a compensable physical injury, as the Appellant's mental health issues were not directly linked to the physical injury. The Court upheld the decisions of the Workers' Compensation Regulator and dismissed the Appellant's appeals.

In light of the findings, the Court confirmed the decisions of the Regulator to reject the Appellant's claims for workers' compensation. The Appellant was also ordered to pay the Regulator's costs of, and incidental to, the appeals. The Court's decision underscores the importance of establishing a direct causal link between a workplace incident and the claimed injury or psychiatric condition for a successful workers' compensation claim.

Orders

Orders of the court

1. The appeal in WC/2015/268 is dismissed.

2. The decision of the Workers' Compensation Regulator dated 15 September 2014 to reject the Appellant's back injury is confirmed.

3. The appeal in WC/2015/269 is dismissed.

4. The decision of the Workers' Compensation Regulator dated 15 September 2015 to reject the Appellant's psychiatric injury is confirmed.

5. The Appellant is to pay the Workers' Compensation Regulator's costs of, and incidental to, the appeals.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Appellant's Evidence: The Appellant, according to his oral evidence, said that on 25 July 2014 he was in the BWS store loading a pallet out the front into the cold room and he walked in holding the box. He said he kicked the door open and took a step inside and he slightly slipped. He then pressed his weight down to re-gather his footing and felt a sharp stabbing pain in his right groin. He said he was holding the carton of beer out in front of him, to the right side of his groin. When he took a step with his right foot he felt a burning pain. The Appellant finished putting the load away and reported the incident and then went to see a doctor at the Springfield Medical Centre. After seeing the doctor he went back to work and then returned home. He had been given a shot of morphine by the doctor and this made him feel sick. On the following day he saw Dr Charti, his regular GP at the Stellar Medical Centre. Dr Charti's records reveal that the Appellant saw him on 25 July 2014 so the incident itself must have occurred on 24 July 2014. Dr Charti sent him for an ultrasound and he returned to Dr Charti to be advised of the results of the ultrasound. Dr Charti gave him a medical certificate: Exhibit 4. The Appellant said that he started taking painkillers in July 2014. Dr Charti provided the Appellant with various medical certificates during the relevant period: see Exhibits 5 – 11. The Appellant stated that prior to this incident he had started to come good after the shoulder injury in 2013. He said he was back to his normal fitness level. The Appellant's evidence was that he was on "light duties" after 25 July 2014 as he was heavily medicated and could only stay for an hour at a time and then he would leave work. He ultimately ceased work on 14 October 2014 following the hernia attack stating that he just could not do it any more. The Appellant said that prior to the hernia operation in December 2014, the pain was "very bad – he was in quite a lot of pain". His hernia was very painful. He then clarified that by saying that it was the hernia and his back "so it was the front and the back of me that was hurting prior to the operation". It was noted that when he was indicating where the pain he was experiencing was, the Appellant indicated an area that went higher than the belt area and he said that his "backpain was all through his lower back, just above his belt". He then clarified that by saying that the pain in the back was above his belt, and the pain in the front was below his belt and that the groin pain was below his pant line on the right side. After Professor Memon did the hernia operation, the Appellant said that the burning, stabbing and pain sensation in his groin had gone but his back was still hurting. He said that he was told it was just normal pain after an operation. The hernia incision was four to five inches and runs at 30 degrees to 45 degrees towards the middle of his body from the outside. The Appellant says that, at the site of the incision, he has always had pain, that it has never gone away - it is a dull throbbing pain in his groin. He assessed the pain level as 5/10. If however there is any kind of pressure placed on the scar his pain level was 10/10.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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