Volvo Group Australia Pty Ltd v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 135
•23 July 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Volvo Group Australia Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 135 |
PARTIES: | Volvo Group Australia Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2014/229 |
PROCEEDING: | Appeal against decision of the Workers' Compensation Regulator |
DELIVERED ON: | 23 July 2015 |
HEARING DATES: | 19-20 November; 11 December 2014 (hearing) |
MEMBER: | Industrial Commissioner Knight |
ORDERS : | 1. The Appeal is allowed. 2. The decision of the Regulator dated 26 June 2014 is set aside. 3. The Regulator is to pay the Appellant's costs of and incidental to the Appeal. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION – Prior extensive history of back and neck claims made by the worker - this information not provided to Medical Specialists - inconsistencies in evidence of the worker - whether the worker's account of his incident at work is credible - preliminary decision concerning "expert evidence" to be introduced by Appellant - the Appeal is allowed. |
| CASES: | Croning v Workers' Compensation Board of Queensland, (1997) 156 QGIG 100 |
| APPEARANCES: | Mr P. B. O'Neill instructed by Ai Group Workplace Lawyers for the Appellant. |
Decision
This is an Appeal made by Volvo Group Australia Pty Ltd ("the Appellant") in respect of the workers' compensation appeal lodged by the Appellant on 24 July 2014 pursuant to s 550 of the Workers Compensation and Rehabilitation Act 2003 (Qld) ("the Act") seeking to set aside a decision by the Review Unit of the Workers' Compensation Regulator ("the Respondent"/"the Regulator") on 26 June 2014 to accept an application for workers' compensation dated 2 March 2014 by Mr Vivian Tapp ("the worker").
The Appellant seeks a decision by the Commission that the Appeal be allowed and:
(a) The Respondent's decision of 26 June 2014 be set aside and be substituted with a decision to reject Mr Tapp's Application; and
(b) The Respondent pay the Appellant's costs of and incidental to the appeal.
Onus of Proof
The onus of proof lies with the Appellant to establish that Mr Tapp has not sustained an injury within the meaning of the Act. The standard of proof is on the balance of probabilities.
An appeal in the Industrial Relations Commission is conducted as a hearing de novo.
Elements to be established
For Mr Tapp to have a valid application for compensation the following elements have to be established on the evidence before the Commission:
(a) That Mr Tapp was a worker for the purposes of section 11 of the Act;
(b) That Mr Tapp sustained a personal injury;
(c) That the injury arose out of or in the course of his employment with the Appellant;
(d) That his employment with the Appellant was a significant contributing factor to the injury.
It is not disputed that Mr Tapp is a worker for the purposes of s 11 of the Act. It is also not disputed that Mr Tapp has sustained a personal injury. Whether Mr Tapp's injury arises out of, or in the course of his employment and whether his employment was a significant contributing factor to his injury are in dispute and are the matters that fall for determination in this appeal.
Background to Claim
Mr Tapp has been employed by the Appellant as a spray painter since 4 July 2004. The Appellant's business is the assembly of Volvo trucks and it operates its business from its factory at Viking Street, Wacol where Mr Tapp was employed and was working at the time material to this appeal.
On 2 March 2014, Mr Tapp made an application for workers' compensation. He claimed that:
(a) On Wednesday 26 February 2014 at 3.00pm, he slipped on a plastic strap and fell on the factory floor;
(b) The injury he suffered was a lower back injury;
(c) He reported the injury to his Supervisor, Mr Jardy Ali on Monday 3 March 2014;
(d) By decision dated 27 March 2014, WorkCover Queensland (WorkCover) rejected Mr Tapp's application for compensation (the WorkCover decision);
(e) By application filed on 14 May 2014, Mr Tapp applied to the Respondent to review the WorkCover decision;
(f) On review, the Respondent set aside the WorkCover decision and substituted a new decision, namely, that Mr Tapp's application for compensation was one for acceptance.
Relevant Legislation
The question before the Commission is whether Mr Tapp has suffered an injury within the meaning of s 32 of the Act which relevantly provides:
"32 Meaning of Injury
An injury is personal injury arising out of, or in the course of, employment if employment is a significant contributing factor to the injury.
…
(3) Injury includes the following -
(a)a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
(b)an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation -
i.a personal injury;
ii.a disease;
iii.a medical condition if the condition becomes a personal injury or disease because of the aggravation;
…
(4)For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
(5)Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances –
…
(c)reasonable management action taken in a reasonable way by the employer in connection with the workers' employment;
(d)the worker's expectation or perception of reasonable management action being taken against the worker;
(e)action by the Authority or an insurer in connection with the worker's application for compensation."
Relevant Legal Principles
A worker with a degenerative back will suffer an injury where the back becomes painful or more painful and the employment is a significant cause of the onset or intensification of pain[1].
[1] JBS Australia Pty Ltd v Q COMP (C/2-12/35) at [3] per Hall P
It is also the case that "aggravation" within the meaning of the Act can carry the meaning "exacerbate".[2]
[2] Veronica Mary Omanski v Q-COMP (C/2012/34) at [11] per Hall P
The onus is on the Appellant to persuade the Commission that Mr Tapp does not have an injury within the meaning of the Act.[3]
[3] SPE Pty Ltd v Q-COMP and Gary Clifford Fuller (C/2010/19) at [10] per Hall P
Witnesses
For the Appellant
Ms Kaye Morgan. Ms Morgan is the HR Partner, Health & Wellbeing for Volvo Group Australia.
Mr Adam Oldham. Mr Oldham has worked for the Appellant for seven years and is employed as a member of the 'absent team' (a person who fills in for other workers when they are absent from work).
Mr Gean Baldwin. Mr Baldwin is employed by the Appellant as the Maintenance and Facility Manager.
Mr Sebastian Rennie is employed by the Appellant as a Safety Advisor and HR Business partner.
For the Respondent
Dr Coroneos. Dr Coroneos is a Specialist Neurosurgeon who provided a Report on 1 September 2014.[4]
Mr Phillips. Mr Phillips is the Director of Occupational Health Services Australia who provided a Report on 22 July 2014.[5]
Dr Gavin Ballenden. Dr Ballenden is a Consultant Occupational Physician who provided a Report on 7 November 2014.[6]
Mr Vivian Tapp. Mr Tapp is the "worker" for the purposes of this Appeal. Mr Tapp is 65 years of age and has worked as a spray painter for the Appellant since 2004.
Dr Thakorbhai Patel. Dr Patel is a General Practitioner who has treated Mr Tapp. Dr Patel conducts his practice from the Kedron Park 7 Day Medical Centre.
[4] [Exhibit 16]
[5] [Exhibit 17]
[6] [Exhibit 18]
Mr Tapp's Claim History
A detailed workers' compensation history for Mr Tapp was tendered by the Appellant. This history showed 13 claims having been made by Mr Tapp over the period from 10 August 1978 to the latest claim in February 2014. There had been a number of claims recently including 5 while he had been employed by the Appellant between July 2007 and February 2014. Four of those claims have occurred between May 2010 and February 2014.
A number of those claims relate to back or neck injuries:
| Injury Date | Injury Location |
| 06/06/1980 | Sprain Back |
| 18/09/1980 | Sprain Lower Back |
| 26/03/1987 | Back – unspecified |
| 21/06/1999 | Lower Back |
| 21/07/2007 | Neck Bones |
| 21/05/2010 | Lower Back |
| 01/12/2010 | Soft Tissue injury to the neck |
| 15/05/2013 | Neck – unspecified |
| 26/02/2014 | Lower Back |
The Appellant submits that the significance of raising this history is:
(a) It establishes that Mr Tapp had a past history of back problems and 5 of the claims related to his work with the Appellant; and
(b) Mr Tapp is familiar with making workers' compensation claims and the procedures adopted by the Appellant in terms of reporting injuries as soon as possible.
Mr Tapp's evidence
On Wednesday, 26 February 2014, Mr Tapp was working on the assembly production (Trim) line in the Appellant's factory. On that day, he ceased work at 2.57pm. He proceeded to clean up in the Appellant's washroom. When he left the washroom, he came down the steps, stepped off the steps, moved forward and then fell. He described the fall as falling on his "butt", and said he had slipped on a black plastic zip tie. A sample of the type of zip tie was entered into evidence.[7]
[7] [Exhibit 13]
After that occurred, he went into the locker room where he saw Mr Adam Oldham. Mr Oldham is an employee of the Appellant and Mr Tapp's evidence is that he was to meet him in the work car park to pay him $250.00 for some paint, thinners and sealer he had earlier bought from Mr Oldham.
He asked Mr Oldham what he was doing in the locker room and Mr Oldham said that he thought Mr Tapp was not coming to the car park. Mr Tapp said he told Mr Oldham that he had a fall.
Mr Tapp's evidence is that he paid Mr Oldham the $250.00 and then left the factory to collect his car and drove to his home. While driving, he felt some burning sensation low down above his tailbone. When he alighted the car at his home he felt something was wrong as he experienced pain in his back. He proceeded to treat this pain with a heat pack, Panadol and rest.
Thursday and Friday (27 and 28 February 2014) were Mr Tapp's Rostered Days Off. During that time he continued to feel the same pain symptoms. He believed, however, that he would be fit to work on Monday.
On Sunday, upon waking up, Mr Tapp was unable to put his left leg down off the bed and experienced severe pain shooting down to the ankle. He called his local general medical practice, Kedron Park 7 Day Medical Centre ("the Medical Centre") and saw Dr Jaikisan Patel, advising he had fallen down. Dr Patel prescribed Voltaren and Panadeine Forte for him. On that day, Mr Tapp made his application for compensation which was immediately faxed to WorkCover.
Mr Tapp did not attend work on Monday 3 March 2014 and he called his supervisor, Mr Jardy Ali on that morning to advise him. When Mr Tapp returned to the Medical Centre on Monday 3 March 2014, he saw Dr Thakorbhai Patel telling him he had slipped at work on the previous Wednesday. Dr Patel arranged for Mr Tapp to continue taking Voltaren and Panadeine Forte as well as seeing a Physiotherapist.
Also on Monday 3 March 2014 Mr Tapp phoned Ms Kaye Morgan, the Appellant's HR Business Partner, Health and Wellbeing, and told her he had hurt his back by slipping on a plastic strip just outside of the washroom. Ms Morgan asked him if anyone else had seen him slip and he said no one was around at that time. Ms Morgan asked why he hadn't reported the fall and his response was that he didn't think much of the fall at that time. Mr Tapp agreed with Ms Morgan that the usual procedure when one had a fall or hurt themselves at work was to report the incident.
The Appellant's submissions on inconsistencies in Mr Tapp's evidence
The Appellant summarised what it viewed as the inconsistencies in the evidence given to the Commission by Mr Tapp and what had been relayed by Mr Tapp to the Appellant at the time, and shortly thereafter, of the incident on 26 February 2014. These included:
(a) While Mr Tapp's evidence was that he had stepped down from the steps to the amenities block and walked some two metres away when he had his fall, Ms Morgan's evidence is that Mr Tapp told her on Monday 3 March 2014 that he had slipped on the bottom step and landed on his butt.
(b) Ms Morgan's contemporaneous note was: "Incident: Slip on bottom step of amenities. Landed on his butt. Did not report the incident. Mentioned the cleaner – did not indicate where she was. Did not report to the guard house on his way off site. Did not report to HR over the following 3 days."
The Appellant also questioned Mr Tapp's failure to report the incident as soon as possible. It was argued that Mr Tapp's failure to report the incident on 26 March 2014 until three days later was consistent with the incident not occurring at all on that day.
The Appellant's Policies on workplace health and safety issues were regularly updated and employees were recurrently educated upon their obligations to report any incident as soon as possible.
An example of the type of Policies in place at the Appellant's business was:
·Exhibit 3 – Safety Bulletin – 27 February 2014 which says that all incidents were to be reported immediately;
·Exhibit 5 - Injury Management - Awareness - Preventative Strategy - Any personnel who feel discomfort from a possible strain/sprain and feel they would benefit from Physiotherapy are to report to their First Aide/Section Leader/Supervisor to contact Kaye Morgan (HR) to arrange treatment;
·Exhibit 6 - Injury Management - Medical Treatment (Doctors) - this exhibit noted the steps for sending injured employees for medical intervention. The significance of this exhibit is that it was displayed around the work premises and it contained both Ms Morgan's work and mobile numbers. The Appellant says that it is clear from the evidence of Mr Tapp that he had Ms Morgan's telephone numbers available to him;
·Exhibit 7 - HSE Bulletin - Report all hazards and incidents - Release date 5 November 2013. This safety bulletin notes that all safety and environmental incidents must be reported. It goes on to note the type of incidents that must be reported:
oAny injury or illness that is a result of work; including first aid and medical treatment enquiries;
oNear misses - no injury occurs but there was potential for injury, i.e. a fall from height; and
oEnvironmental incidents - including oil and other chemical spills, gas release and fires.
The Appellant states that the safety bulletin, Exhibit 8 - Incident Management Procedure - notes that incidents must be reported as soon as reasonably practicable and no later than the end of the working day to either a first aid officer or the supervising team leader or manager. The "Injury Management - Medical Treatment (Doctors)" was administered from the first aid room, which Ms Morgan says at the time of Mr Tapp's injury was located in the room immediately next to the toilet in the amenities block.
Ms Morgan referred to a prior incident where Mr Tapp had sustained a head injury in 2013. He had failed to report the incident or the injury and she says that she specifically raised this with Mr Tapp and gave him a verbal warning about this failure to do so. Mr Tapp acknowledged that this conversation had taken place.
Why the Commission should prefer the evidence of Ms Morgan over that of Mr Tapp is encapsulated by the Appellant hereunder:
(a) "Mr Tapp's significant experience as a workers' compensation claimant;
(b) His significant history of back problems;
(c) Mr Tapp has on his own evidence had a couple of meetings with Ms Morgan where she has reinforced with him the need to report injuries;
(d) Mr Tapp on his own evidence is well aware of his obligation to report injuries as soon as possible and that this is not an optional thing at Volvo. The Appellant submits that there is no grey area, if an injury or near miss occurs it must be reported immediately;
(e) That no more than nine months earlier Mr Tapp had been given a verbal warning by Ms Morgan for failing to report a head injury; and
(f) Those facts, the Appellant submits that it is inherently implausible that Mr Tapp could sustain a fall in the manner that he describes on Wednesday 26 February 2014 in which he experienced a burning sensation in his back which had progressed by the time he got home to significant pain and discomfort and that he would fail to report that injury".[8]
[8] [Appellant's submissions – point 48]
The Appellant's submissions concerning Mr Tapp's failure to notify of the incident
According to the Appellant there was ample opportunity for Mr Tapp to advise someone of his accident at the workplace on the day of the incident:
(a) There was a telephone in the first aid room. Mr Tapp was able to walk 80 metres to the locker room after the incident, but seemingly unable to walk three metres to the first aid room;
(b) Mr Phil Paskul (Acting Manager) was still at work;
(c) Mr Tapp's former team leader, Mr Lebeter was still at work;
(d) The guardhouse is manned 24 hours per day and Mr Tapp would have had to walk past this to get to his car.
The Appellant further claimed Mr Tapp could have walked to the administration area where staff remained at that time of the day. Additionally, Mr Tapp could have called Ms Morgan on her telephone and he could also have called his supervisor. All these calls could have occurred when he arrived home and felt worse than he did at work or at any time from Thursday to Saturday when he continued to experience pain.
Mr Tapp's evidence was that it was only on Sunday that he went to see his Doctor that the matter became a point of concern. Prior to that he had believed his pain would abate and he would return to work on Monday 3 March 2014. His evidence was on Monday he was feeling the pain acutely and consequently notified his workplace.
The Appellant asserts Mr Tapp had told the officer from WorkCover Claims that there had been no-one at work he could contact regarding his accident on 26 February 2014. That was the first reason for not reporting his injury. His second reason for not reporting his injury was that he had not thought the incident was of any note until later on when he started to feel acute pain.
The issue concerning the 'cleaner'
The issue of whether or not the cleaner in the amenities block had been present when Mr Tapp had his accident was raised by the Appellant. Mr Tapp's communication with Ms Morgan, on 3 March 2014, was that he thought the cleaner might have been in the vicinity of his accident on 26 February 2014.
Mr Tapp advised the WorkCover Claims officer that there had been no-one at work when this incident occurred. Ms Morgan said that in a later telephone call with Mr Tapp he denied ever mentioning the cleaner.
During his evidence, Mr Tapp said that the cleaner was there and that she was in the toilet at the time he had fallen and she might have possibly seen the incident.
The Appellant submits that Mr Tapp's version of events around this issue was implausible.
Mr Tapp's communication with Work Cover
In forming that view, the Appellant also referred to the conversation Mr Tapp had with the WorkCover Claims officer on 7 and 14 March 2014, which was addressed in the hearing as:
"Counsel for the Appellant - The claims representative told you that they were currently investigating the claim as we do not have enough evidence surrounding the incident, no one can confirm the incident occurred at work. Their claims representative explained to you that the onus of proof is on you to prove that a work-related injury occurred and, currently, that information hasn't transpired. Do you recall the claims representative telling you that?
Mr Tapp - That's correct.
Counsel for the Appellant- And I suggest to you that at that time, you became tearful and you advised the claims representative that you're not a liar?
Mr Tapp - That's correct.
Counsel for the Appellant- The claims representative then advised you that she – I have no doubt in your having a workplace injury and do not question his integrity as we have accepted claims from you before. However, the process under the legislation is that onus of proof needs to be met to support the claim. Do you recall the claims representative telling you that after you became tearful?
Mr Tapp - That's correct.
Counsel for the Appellant - The claims representative further advised you, having spoken to the company, no one knows anything about this alleged incident and, as you had several days off following the alleged incident, no one can confirm it happened at work or at any other time. Do you recall her saying that to you?
Mr Tapp - That's correct.
Counsel for the Appellant - And you said that you understood the position that WorkCover Queensland was in?
Mr Tapp - Yes.
Counsel for the Appellant - The claims representative advised you that - she was waiting on some more information from the employer before she would take the decision of the claim to a manager to confirm the decision. Do you recall the claims representative saying that?
Mr Tapp - Yes. I do.
Counsel for the Appellant - You were aware, on the 14th March, the WorkCover was telling you that there was insufficient evidence for them to make a finding that this was a work related injury. Correct?
Mr Tapp - yeah.
Counsel for the Appellant - You said nothing - nothing - in that conversation on the 14th of March about Mr Oldham, did you?
Mr Tapp - No.
Counsel for the Appellant - And the reason for that, I suggest to you Mr Tapp – the reason why you failed to say anything to Kaye Morgan at the first opportunity on the 3rd of March - you failed to say anything to WorkCover on either of those days, the 7th or the 14th of March - is that this incident involved with Mr Oldham never happened?
Mr Tapp - It did happen.
Counsel for the Appellant - It was something that you made up?
Mr Tapp - "No way".
Counsel for the Appellant -... a substantial amount of time later?
Mr Tapp - No way.
Counsel for the Appellant - ... to come up with some corroboration for this being a work-related injury?
Mr Tapp - No way. How come Adam didn't ring me ever?"[9]
[9] [Appellant's submissions – point 82]
The Appellant says the reason for Mr Tapp's comments concerning Mr Oldham was that Mr Tapp had been unable to produce corroborating evidence regarding the incident on 26 February 2014 and consequently he had fabricated that version of events.
The issue concerning Mr Oldham
Mr Tapp confirmed that it was not until May 2014 that he identified Mr Oldham as the employee he claimed to have seen in the locker room on 26 February 2014.[10] Mr Oldham's evidence was that he was not present at the Appellant's workplace on the afternoon of Wednesday 26 February 2014. He had reported to work earlier that day, but had left in the morning and had gone to his home at around 9.20 am as he was feeling sick.
[10] [T2-80]
Mr Oldham denied returning to the workplace on the afternoon of 26 February 2014 and seeing Mr Tapp at any stage during that afternoon. He also denied having made arrangements with Mr Tapp to meet him in the car park for the purpose of Mr Tapp paying him an amount of $250.00 for paint goods he had provided to Mr Tapp. He denied he had told Mr Tapp he needed the money as he was planning to go away over the break. Denied also was that he had gone into the locker room because he had been waiting for Mr Tapp in the car park but he hadn't arrived.
In cross-examination, Mr Oldham was asked about the time he had off work on and around 26 February 2014. He said he had left work sick on the morning of 26 February 2014 and for the following days of Thursday and Friday, as they constituted Rostered Days Off. Followed by the weekend, this provided a four day period of time when Mr Oldham was not required at work. Mr Oldham said he had not contemplated going away for the long weekend.
Mr Oldham said that Ms Morgan had spoken to him and asked if Mr Tapp had approached him to tell him he had a fall at work. He said that hadn't happened. He agreed that he had previously sold Mr Tapp some painting equipment but he had not entered into any agreement to provide painting goods to Mr Tapp for the amount of $250.00.
Mr Oldham said he had previously seen plastic strapping on the floor at the Appellant's workplace near the canteen, but had not seen it on the factory floor immediately outside the toilet area. From this evidence, and the denials from Mr Oldham, the Appellant submitted that Mr Tapp's evidence had been untruthful and in effect a "recent invention".
The Appellant further stated:
"That was no less than eleven (11) opportunities that Mr Tapp had to reveal that he had in fact spoken to Mr Oldham in the locker room and reported the injury to him. It is simply inherently and patently implausible that Mr Tapp knowing the importance of some corroborating evidence for the alleged fall occurring would not mention the alleged conversation in the locker room".[11]
[11] [Appellant's Submissions – point 84]
During his evidence, Mr Tapp said he had not mentioned Mr Oldham earlier on to Ms Morgan because he didn't want him to get into trouble, as employees were not permitted to come back to the workplace when they were not attending work. While Mr Tapp said the paint he had been given by Mr Oldham (before paying for it) ended up being contaminated, the Appellant questioned why he would go ahead and seek to pay Mr Oldham if that was the case.[12]
[12] [Appellant's Submissions – point 108]
Medical Evidence - The Respondent's submissions
The Respondent's assessment of the medical evidence was as follows:
a) Dr Michael Coroneos had provided a Report dated 1 September 2014.[13] In cross-examination, Dr Coroneos' said that Mr Tapp had a longstanding degeneration of his lumbar spine. When considering the type of symptoms described by Mr Tapp (i.e. of a burning sensation in the lower back and lower back pain), Dr Coroneos said that these symptoms were more consistent with Mr Tapp suffering an exacerbation of his pre-existing degenerative problem in his back.
[13] [Exhibit 6]
The Respondent also referred to Dr Coroneos' evidence, in cross-examination, that "if Mr Tapp fell as he described and was suffering the symptoms after that fall as Mr Tapp described, namely a burning sensation in the lower back and lower back pain, then those symptoms were more consistent with Mr Tapp suffering an exacerbation of his pre-existing degenerative problems in his back."[14].
[14] [T2-18 and 19]
b) The Appellant had requested that Mr Tapp see Dr Ballenden and he had agreed to do so. Dr Ballenden, in cross-examination, agreed that Mr Tapp had a multi-level degenerative back disease and "assuming Mr Tapp fell in the way that he had described, it was probable that the symptoms Mr Tapp had described to Dr Ballenden, being a burning sensation in the lower back and across the whole back and back pain, were consistent with Mr Tapp suffering an exacerbation to the pre-existing degenerative disease in his lower back."[15]
c) Dr Thakorbhai Patel confirmed that Mr Tapp had told him that he had slipped at work on the Wednesday and as a consequence of that fall, he suffered the symptoms of back pain radiating down to the leg.
d) The Respondent's primary submissions concerning the medical evidence are that if the Commission accepted the way in which Mr Tapp had fallen on 26 February 2014, then he suffered an aggravation to the pre-existing degenerative disease that he had in his lower back.
[15] [T 2-40] [Respondent's Submissions – point 22]
Medical Evidence - The Appellant's submissions
The Appellant claimed that Mr Tapp had provided incorrect histories to both Doctors Coroneos and Ballenden.
Mr Tapp had told Dr Ballenden that he had no prior back problems and that he had made no prior claims. Dr Ballendens' evidence was that he had asked Mr Tapp that question on three occasions and on each occasion Mr Tapp had denied any prior back or claims history. Mr Tapp's evidence was that he thought the enquiry related to whether he had any monetary payouts as a consequence of any claim and also that he had not thought about his past medical history when discussing his health issues with Dr Ballenden.
In his first Report, Dr Ballenden stated that if Mr Tapp had a fall at work as alleged, then he could have aggravated his underlying pre-existing significant spondylosis but that this should have been a temporary state. He also stated that the most probable suggestion was that Mr Tapp could have had a spontaneous progression of the natural course of the underlying severe degenerative spinal disease.
In his updated report of 7 November 2014, Dr Ballenden states:
"This man appears to have significantly misrepresented himself to me." Dr Ballenden then added, "Without the benefit of the previous history and taking this man at face value, these findings and symptoms were 'on the benefit of doubt' attributed by me to be due to the workplace aggravation of 2014, as this is what the claimant stated."
When Dr Ballenden was provided with additional information that Mr Tapp had not sustained a disc protrusion in the fall nor had he suffered any radiological change, he stated he could not have suffered an aggravation or a worsening of the condition.[16] He also opined that the severe symptoms that Mr Tapp reported on Sunday 2 March 2014 could simply have been the result of a flare up of the natural degenerative process.
[16] [Exhibit 19]
Similarly, with Dr Coroneos' Report of 1 September 2014, Mr Tapp had advised that he had one previous back complaint (in 2010) which he described as lasting for one week and settling with physiotherapy and that he had not required any X-rays or scans. He also reported to Dr Coroneos that there had been no sciatic symptoms down into the legs.
In cross-examination, Dr Thakorbhai Patel said that he had not recorded in his consultation notes the mechanism of injury described by Mr Tapp. However, he said that Mr Tapp had advised him that he had fallen at work. While it was possible that the onset of severe pain could have occurred three days after the fall, Dr Patel said it would be more usual for that onset to occur within 24 hours after the accident. He also stated that given the severity of the degenerative changes in Mr Tapp's spine, even sleeping in an awkward position could have given rise to the symptoms reported by Mr Tapp on Sunday morning.
In its summary, the Appellant stated as a consequence of Mr Tapp providing an inaccurate and misleading history to both Doctors, the Commission would be required to weigh Mr Tapp's evidence as to whether any of his evidence is credible.[17]
[17] [Appellant's Submissions – point 127]
Evidence of Mr Philips
The Appellant sought to introduce Mr Phillips' evidence as expert evidence. The Respondent opposed that proposition.
In determining the initial challenge to Mr Phillips' evidence being accepted as 'expert evidence' in favour of the Appellant, the Commission stated:
"It's worth noting, however, that in all of these sorts of matters, it's important for the Commission to weigh up all the evidence, and certainly the parties will have the opportunity to provide written submissions in relation to the evidence provided by Mr Phillips, particularly in relation to some of his final conclusions."
This relates to what the Commission termed as "an organised body of knowledge, that is, slips and falls in an occupational setting" and Mr Phillips' linkage between Mr Tapp's and pedestrian gait dynamics.
Mr Phillips' report contained, inter alia, the following commentary:
The premises had an epoxy flooring system which had been enhanced with the insertion of tungsten carbide granules to further improve the available floor surface co-efficient of friction;
The floor is re-surfaced every twelve months usually December/January and therefore at the time of the incident only reportedly had 1-2 months wear;
The floor surface was considered by Mr Phillips to easily exceed the required floor co-efficient of friction in the relevant Australian Standard.
Mr Phillips said that, given the evidence of Mr Tapp as to how he had fallen, "it would be extremely unlikely that movement across a flat surface at normal walking pace would result in any plastic tie displacement sufficient to cause a slip/fall or loss of balance."
Mr Phillips considered two scenarios that were undertaken by him in the area where Mr Tapp said he had fallen. The first scenario involved placing an offcut of green plastic strapping onto the floor outside the wash room. Trials were conducted where a person wearing standard safety boots at normal walking pace would step down from the steps onto the strapping to determine if there was any slip of 'loss of footing' sufficient to cause a fall or loss of balance. This scenario was enacted on three occasions positioning the strapping in three separate shoe strike locations.
The results of this scenario were that on two occasions it was not able to discern any slip or movement in the strapping when under foot. On the third occasion, there had been a slight displacement of a few centimetres, but not sufficient to have caused any loss of balance, altered gait or gait correction.
The next scenario involved placing a black plastic zip tie onto the floor outside the wash room immediately below the washroom steps (where the alleged fall occurred). Similar results ensued.
The Appellant's final submissions
The relevant factors to be taken from the medical evidence is that it only supports the existence of a work related aggravation injury if the Commission makes a factual finding that Mr Tapp fell at work as alleged. The Appellant contends that there is compelling evidence leading to the inference that Mr Tapp did not sustain the injury at work. The factors to be considered include:
(a) Mr Tapp's fall was not witnessed by any other person at the workplace when there were still a number of people present at the time of the alleged fall on 26 February 2014;
(b) The non-reporting of the fall to the Appellant until three days later;
(c) Mr Tapp's history of back injuries and worker's compensation claims.
(d) Mr Tapp's inconsistent versions of the actual incident and his onset of symptoms.
(e) Mr Tapp's incomplete medical history given to both medical specialists.
(f) Mr Tapp's evidence concerning Mr Oldham and Mr Oldham's denial of events as described by Mr Tapp.
(g) Mr Tapp's explanation as to why he had not reported speaking to Mr Oldham on the afternoon of 26 February 2014 until 20 May 2014.
The evidence given by Doctor Coroneos was that the most probable suggestion was that Mr Tapp could have had a spontaneous progression of the natural course of the underlying severe degenerative spinal disease. Dr Bellenden's view that the severe symptoms reported by Mr Tapp on Sunday 2 March 2014 could simply have been the result of a flare up of the natural degenerative process. The Appellant suggested that the medical specialists' opinions could provide a plausible explanation as to why Mr Tapp had not sought medical treatment earlier.
The Appellant further submitted that if the Commission were to find Mr Tapp did fall as alleged, it would still be open for the Commission to find that the injury was not compensable. The Appellant stated that in Croning v Workers' Compensation Board of Queensland,[18] de Jersey P held that the employment needs to be a "real effective cause" of the injury and not merely the setting or background in which the injury occurs.
[18] Croning v Workers' Compensation Board of Queensland, (1997) 156 QGIG 100.
In the circumstances of this case, the Appellant submitted that Mr Tapp was suffering from a number of conditions which would render him more susceptible to falling. These include the degenerative changes to his spine, the hallux valgus deformities that Mr Tapp has in both great toes on each foot as reported by Dr Ballenden and his unusual gait.
Had Mr Tapp fallen at work, considering his risk factors, and if it was found that there was no plastic zip tie on the floor outside the amenities block, then the Appellant submits that employment would merely be the setting or the background in which the fall occurred and Mr Tapp's employment in those circumstances would not be a significant contributing factor.
Respondent's final submissions
Primarily, the Respondent's submissions are that if the Commission accepted the way in which Mr Tapp had fallen on 26 February 2014, then he suffered an aggravation to the pre-existing degenerative disease that he had in his lower back. The Respondent said that this component of the Appellant's submissions (i.e. the work was merely the setting in which the fall had occurred) was erroneous.
In light of the decision which I have made in this matter, it is not necessary to consider the principles enunciated in Croning any further.
I have accepted Mr Phillips' expertise in the field of occupational health and safety, he is not a medical practitioner and there was no evidence to suggest that he was qualified to express opinions about Mr Tapp's susceptibility to fall (in the absence of a plastic zip tie) due to his medical conditions.
The scenarios conducted by Mr Philips at the workplace involved an individual who was not of the same height, weight or age as Mr Tapp. The Respondent also states that the observed individual had not worked a full shift (as had Mr Tapp), did not have severe multi-level degenerative changes in his lower spine (as did Mr Tapp) and did not have significant deformities in the great toes of each foot (as did Mr Tapp). He also did not have Mr Tapp's 2cm wasting in his left thigh.
Conclusion
The Respondent states that all of the evidence points to Mr Tapp falling as claimed and that he has suffered an injury. The medical evidence is to the effect that if Mr Tapp had fallen as he described, then he suffered an aggravation of the pre-existing degenerative disease that he had in his lower back.
Also submitted by the Respondent is that there was no evidence before the Commission, on the balance of probabilities, that the area in front of the washroom was uncontaminated by a zip tie. Mr Tapp's evidence has remained consistent in that he had slipped on a zip tie in that workplace area.
Mr Tapp did not tell anyone about his fall, or formally report it to Ms Morgan. The Respondent said this was because he had not suffered any intense pain in his back until some days after his fall. The Respondent says that this is believable as he did attend a Medical Practitioner on Sunday 2 March 2014.
The Respondent says that Mr Tapp's failure to advise the Medical Specialists of his prior back complaints and claims should not lead the Commission into accepting that Mr Tapp had been lying in relation to his fall. What was relevant was that he had sought medical attention on Sunday 2 March 2014.
I was also asked to accept that Mr Tapp was telling the truth about Mr Oldham and that Mr Oldham had lied because he had gone home sick on Wednesday 26 February 2014, before a long week-end, but had come back to work to get $250.00 from Mr Tapp. It was asserted by the Respondent that Mr Oldham had a good reason to lie because he did not want his employer to form the view that he was not sick and had returned to the workplace for the purpose of collecting the money from Mr Tapp.
The onus of proof lies with the Appellant on the balance of probabilities that Mr Tapp does not have an injury within the meaning of the Act. It is submitted by the Respondent that the Appellant has not discharged this onus.
Primarily the Appellant says that Mr Tapp has not been a credible witness.
It is clear that there were significant inconsistencies in the evidence Mr Tapp had given to the Commission. These have been identified as:
a) Mr Tapp's failure to report the incident, specifically in circumstances where he had clearly had prior incidents at work and where he had been spoken to about reporting any incidents at work.
b) Mr Tapp first reported to Ms Morgan that he had slipped on the bottom step of the amenities block which was later changed to falling after moving away from the bottom steps.
c) Mr Tapp's evidence that there was no-one at work to whom he could report the incident.
d) Mr Tapp's evidence about the presence or otherwise of the 'cleaner' is clearly inconsistent. This evidence is referenced in paragraphs 35-38 of this decision.
e) Mr Tapp, when speaking to WorkCover, agreed that he had been advised that, while currently investigating the claim made by him, there had been no identification by Mr Tapp of anyone who might have seen or been aware of the incident. At that time, on 7 and 14 March 2014 when Mr Tapp was conversing with WorkCover, Mr Tapp had not mentioned Mr Oldham.
f) Mr Oldham denied the evidence given by Mr Tapp that he had visited the workplace on Wednesday 26 February 2014 to pay Mr Tapp money he had owed. The Appellant submitted that on at least 11 occasions, Mr Tapp had the opportunity to advise that he had seen and spoken to Mr Oldham on the day of the incident, but had failed to do so until May 2014.
g) Mr Tapp had a lengthy history of prior back problems and claims (13 claims in all, of which 9 appear to be related to back/neck problems), and four claims with the present employer. That he did not provide that information to the Medical Specialist seriously damages his credibility.
In considering all of these factors, I have accepted that there were other people at work to whom Mr Tapp could have advised of his accident. Also Mr Tapp had the telephone numbers of Ms Morgan and had been under instruction from her to report any incidents. His failure to do so is not satisfactorily explained by him. It is accepted that the Appellant's Health and Safety policies were updated regularly and it is accepted that employees were made aware of these Policies.
Mr Tapp's reasoning behind not disclosing this fact was that he had wished to protect Mr Oldham is far from convincing. Mr Oldham's evidence was clear and that evidence has been accepted by me. I have found Mr Oldham to be a credible witness and I have accepted that he had not returned to the workplace on Wednesday 26 February 2014, after having reported sick on that day, to speak to and hand money to Mr Tapp.
It is also of considerable concern that Mr Tapp did not give the medical specialists the correct history of his prior back problems. Given his extensive history of back complaints and claims, his reason for not doing so is implausible. Dr Ballenden's evidence was that he had specifically asked Mr Tapp on three occasions whether he had any prior back problems or claims and on each occasion Mr Tapp denied that he had previously suffered from problems with his back. To Dr Coroneos, Mr Tapp had advised that he had endured only one prior back complaint in 2010 which had resolved itself within one week and for which no X-rays or scans were taken.
Dr Patel's evidence also requires consideration to the extent that he believed that Mr Tapp's symptoms, after a fall of the type described, would usually have occurred within 24 hours after the incident. He also commented that Mr Tapp's symptoms could have been the result of a flare-up of the natural degenerative changes in Mr Tapp's spine. While this evidence has not been relied upon to determine the application as it relates to the medical evidence, it at least places some doubt in the mind of Dr Patel as to the causation of Mr Tapp's injury.
It is clear that both Doctors Coroneos and Ballenden agreed that if Mr Tapp's incident had occurred as described by him with the resultant level of pain symptoms experienced, then those symptoms were more consistent with Mr Tapp suffering an exacerbation of his pre-existing degenerative problems in his back. Dr Ballenden, however, when provided with the additional information concerning Mr Tapp's prior incidents with his back and that Mr Tapp had not sustained a disc protrusion in the fall, nor had he suffered any radiological change, stated that Mr Tapp could not have suffered an aggravation or a worsening of the condition. He suggested that the severe symptoms that Mr Tapp reported on Sunday 2 March 2014 could simply have been the result of a flare up of the natural degenerative process. After considering all of the evidence, Mr Tapp's reasons for his failure to declare his prior back history to the Medical Specialists and his reasons for this are not accepted by me as believable.
While the Respondent claims that the medical evidence supports Mr Tapp's claim if it is accepted that he had a fall of the type described, that evidence is solely related to whether I have accepted that Mr Tapp had fallen at work on Wednesday 26 February 2014 is accepted.
With regard to Mr Phillip's evidence, the decision I have made in this matter renders any further consideration academic.
Overall, Mr Tapp's credibility has been seriously tested and left wanting in this Appeal. His account of events has not been accepted by me as credible. While it is accepted by the parties that Mr Tapp has sustained a personal injury, I have found that it does not constitute an 'injury' for the purposes of the Act. Consequently, I have not accepted that Mr Tapp has incurred an 'injury' at the workplace on Wednesday 26 February 2014. I have accepted that the Appellant has satisfied its onus of proof and established that Mr Tapp has not sustained an injury within the meaning of the Act. The standard of proof is on the balance of probabilities and this has been met by the Appellant.
Accordingly I order:
i.The Appeal is allowed;
ii.The decision of the Regulator dated 26 June 2014 is set aside;
iii.The claim is not one for acceptance;
iv.The Regulator is to pay the Appellant's costs of and incidental to the Appeal. In the event agreement cannot be reached between the parties with respect to the costs the Appellant has the liberty to apply.
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