W & R Carrying Pty Ltd v Workers' Compensation Regulator
[2016] QIRC 78
•27 July 2016
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | W & R Carrying Pty Ltd v Workers' Compensation Regulator [2016] QIRC 078 |
PARTIES: | W & R Carrying Pty Ltd v Workers' Compensation Regulator |
CASE NO: | WC/2015/168 |
PROCEEDING: | Appeal against decision of Regulator |
DELIVERED ON: | 27 July 2016 |
HEARING DATES: | 26 May 2016 |
MEMBER: | Deputy President O'Connor |
ORDERS: | 1. The appeal is dismissed; 2. The decision of the respondent dated 27 May 2015 is affirmed; and 3. The appellant is to pay the respondent's costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission. |
| WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF REGULATOR -Where the Regulator accepted the worker's application for compensation - Where the employer appealed this decision -Whether the worker sustained an injury within the meaning of that term in s 32 of the Act | |
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32 Goodman Fielder v WorkCover Queensland [2004] 175 QGIG 871 |
| APPEARANCES: | Mr W. Earnshaw, representative of W & R Carrying Pty Ltd. |
Decision
Mr David Dowe was employed as truck driver by W & R Carrying Pty Ltd ('the appellant') and based in Toowoomba.
On 17 November 2014, Mr Dowe claims to have suffered a workplace injury to his right foot, that injury being a broken metatarsal bone, as a result of a 'fall of two meters from truck landing on feet on concrete'.
By a letter dated 27 May 2015, the Review Unit of the Workers' Compensation Regulator ('the Regulator') confirmed WorkCover's decision to accept Mr Dowe's application for compensation.
This is an appeal made under the Workers' Compensation and Rehabilitation Act 2003 ('the Act') against the decision of the Regulator.
The appellant contends that the Mr Dowe's injury did not arise out of or in the course of his employment.
Statutory Provisions and Onus of Proof
The appeal has to be decided by reference to s 32 of the Act which, at the time material to the appellant's application for compensation, relevantly provided:
"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.
…
(3) Injury includes the following -
(a) a 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.
…"
As with any appeal to the Commission against a decision of the Regulator, the nature of the appeal is by way of hearing de novo. The appellant bears the onus of proof.
It is accepted by the appellant that Mr Dowe was a 'worker' within the meaning of the Act. The issue for determination by the Commission is whether the worker has sustained an 'injury' within the meaning of that term in s 32 of the Act.
Mr Dowe told the Commission that he made deliveries for his employer from the Bunnings Warehouse at 316 Taylor Street, Toowoomba.
At approximately 11.30am on 17 November 2014, Mr Michael Whale, the manager of Toowoomba Bunnings Warehouse was loading the truck with four timber packs with a 10 metre beam on the top. As Mr Whale was manoeuvring the forklift, the packs of timber bowed and the 10 metre stiff beam on top moved sideways. The evidence was that Mr Whale attempted to put the timber packs down. The packs were high above the bed of the truck as Mr Whale was attempting to put the 10 metre beam across the top of the headrail, as Mr Dowe's evidence goes on to explain:
The beam could not possibly sit on the headboard because it would turn sideways. He then tried to put it down but it was sitting on the top lip on the corner and, like, tipping. And I’ve looked at him and he’s pointed at the beam as to say, “Just push it over”.
Yes?‑‑‑ ‑ ‑ ‑ and because he had the packs of timber lifted about 500 mil above the tray, the beam was fairly high, so I had to reach to the top of that headboard.
Yes?‑‑‑I’ve then gone to try to push the beam onto that headboard and Michael’s forks were sitting on the packs of the – on the other side; they were poking through, and they’ve slipped down which jolted the forklift and the beam had fell down, hit me in the shoulder and pushed me off the truck.[1]
[1] T1-10 at Ll. 6-19.
Mr Dowe told the Commission he estimated he was approximately 1.5 metres off the ground when he was struck by the beam. He landed on his feet and went down on his hands. Mr Dowe's immediate impression was he had hurt his right foot badly.
Following the incident, Mr Dowe telephoned Mr Wayne Earnshaw, his employer and the owner W & R Carrying Pty Ltd to report the accident.
Mr Dowe was in pain the following day and did not attend work. Late in the afternoon he was taken by his partner to Toowoomba Base Hospital. His foot was X-rayed and he was issued with a Workers' Compensation Medical Certificate with the stated injury being a fifth metatarsal fracture.
The appellant called Mr Errol McLaughlin and Mr Brett Holt. I found their evidence to be of little assistance in determining whether Mr Dowe had sustained an injury within the meaning of s 32 of the Act.
In examination-in-chief, the appellant asked Mr Whale the following question on how the accident occurred on 17 November 2014:
APPLICANT: All right. Did Mr Dowe get on the truck at all at any stage? Mr Dowe walked up – climbed up – stepped up on the – on the stairs, the truck stairs. He stepped up on the stairs to – to flick the beam. And yeah, as he flicked the beam, it obviously twisted a bit and had sort of fallen back onto the [indistinct] – onto the fork tynes – and that’s when he turned around, has come back down the stairs – the stairs on the side of the truck – and both – both his feet were on the ground. He’s turned and he’s tripped over his feet.
Did the beam hit Mr Dowe? No.
What was the reason that the beam fell of the tynes? I guess as he’s climbed up the stairs, when he’s flicked the beam – I’m not sure why he’s flicked the beam – but it’s just had a – the momentum of a single beam, it’s moved and as it’s moved, it’s sort of off-balanced and it’s come back and that’s how it’s slid off the back from that angle.[2]
[2] T1-50 at Ll. 21-35.
Mr Whale's evidence continued:
Did Mr Dowe come down onto the ground with any force?‑‑‑He turned – he was – both feet were on the ground, he turned and he’s tripped on his feet, and he landed – it looked like he had his – his hands out and landed on his hands. That’s how I remember. He landed on his hands like a controlled fall. I don’t know, I’m not an expert, but there was no impact on the ground as a – if you fell off without any control and you fell off and you would hit a thump. Well, you’d hit – and you’d land anywhere on the ground. He sort of tripped over his feet. Like, he just tripped over and used his ‑ ‑ ‑
HIS HONOUR: Did you see any of this? Yes. Yes, sir.
Or are you – or is this just what you think may have happened? No, I was operating the forklift.
Yes. But – you might have been, but did you see any of this? Yes, I did, sir.
All right. So you saw him? Fall on the ground, yes.
Right? Yep.
Yes.[3]
[3] T1-52 at Ll. 21-41.
The evidence of Mr Whale, the appellant's own witness, supports a conclusion that Mr Dowe had a work-related fall on 17 November 2014.
As Hall P wrote in Goodman Fielder v WorkCover Queensland[4]
"However, once the Industrial Magistrate accepted that the incident of 3 April 2001 did in fact occur and accepted that there was proximity of time between the incident and the onset of a pain it was, in the absence of any evidence about a competing causal incident, inevitable that the Industrial Magistrate would conclude on the balance of probability that the worker's employment had been "a significant contributing factor to the aggravation". On the state of the evidence any other conclusion would be speculation."
[4] [2004] 175 QGIG 871.
The consequences of the fall are set out in the medical report of Dr McCartney dated 9 February 2015. In that report he opines:
"From the file it appears this fellow has a fracture of the 5th MT shaft.
This fracture could be acute trauma for example stepping down from a height.
There is a discrepancy between the employer's version of events and the claimants. Both have the claimant falling/stepping down the truck either at 650mm or 2000mm. Such an event with forced inversion with ankle in plantar flexion or laterally directed force on forefoot with ankle plantar flexion could result in fracture of the 5th MT.
As such, if one of these events occurred, it caused have caused such a fracture."[5]
[5] Exhibit 2.
Dr McCartney was asked the following in examination-in-chief:
All right. Now, in the report you asked about specific questions about the distance that the – that one person says the – or the worker says he fell or stepped down and another version given by the employer, but you seem to suggest that either one of those mechanisms could have caused the fracture to the fifth metatarsal. Is that right?‑‑‑Well, the question asked of me was not who caused the fracture. The question asked of me was did it cause a work-related injury, the specific question – [indistinct] confirmed David had sustained a work-related injury, and what I said there was a discrepancy between the events; however, both could cause such an injury if it is a stress fracture, a mid-shaft, and remember, I haven’t seen the X-rays. I’ve had a zoom-in what was given to me on the file. If it is a stress fracture then the injury would be likely aggravation of that pre-existing stress fracture because it’s unlikely to have occurred in the acute circumstances described.
Yes?‑‑‑But the injury is therefore exacerbation or aggravation of a pre-existing stress fracture.[6]
[6] T1-76 at Ll. 27-41.
The evidence of Dr McCartney, which I accept, supports a conclusion that Mr Dowe sustained a fractured 5th metatarsal of the right foot. Whilst Dr McCartney was unable to say precisely whether or not Mr Dowe had suffered a stress fracture or an acute fracture, his evidence nevertheless tendered towards a conclusion that Mr Dowe had suffered a stress fracture (Zone 3).
Dr McCartney's evidence was that these types of injury are not usually caused by an acute injury. The nature of Mr Dowe's injury can become symptomatic at some stage and "go from mild symptoms to quite severe symptoms due to an event that can exacerbate it or aggravate it."
In Pleming v Workers' Compensation Board of Queensland[7], de Jersey J (as his Honour then was) adopted a statement by Evatt and Sheppard JJ in Commonwealth v Beattie that "pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place."[8]
[7] (1996) 152 QGIG 1181.
[8] (1981) 35 ALR 369.
Notwithstanding my finding that Mr Dowe sustained a fractured 5th metatarsal in his right foot, I must also be satisfied for the purposes of s 32 of the Act that his injury arose out of, or in the course of his employment with the appellant and that his employment was a significant contributing factor to the injury.
I accept the evidence of Mr Dowe as to the cause of the injury. I am satisfied that his employment was a significant contributing factor to the injury and that the injury occurred in the course of his employment with the appellant, or arose out of that employment.
As Dr McCartney opined, irrespective of whether Mr Dowe had fallen 650 mm or 2 metres, either version of events "could cause such an injury."
Conclusion
I am satisfied on the evidence before me that Mr Dowe suffered a fractured 5th metatarsal of the right foot which, at the very least, is an exacerbation or aggravation of a pre-existing stress fracture.
I am also satisfied that his injury arose out of or in the course of his employment and that his employment was a significant contributing factor to his injury.
Having considered the totally of the evidence, in particular, the medical evidence, I have formed the conclusion the appellant has failed to discharge the positive onus of establishing, on the balance of probabilities, that Mr Dowe did not sustain an injury within the meaning of s 32 of the Act.
Orders
I make the following orders:
1. The appeal is dismissed;
2. The decision of the Regulator dated 27 May 2015 is affirmed; and
3. The appellant to pay the respondents costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.
0