Walsh v Workers' Compensation Regulator - [2021] QIRC 165

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Walsh v Workers' Compensation Regulator [2021] QIRC 165
PARTIES:	Walsh, Jeffrey (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2017/199
PROCEEDING:	Appeal against decision of Workers' Compensation Regulator
DELIVERED ON:	14 May 2021
HEARING DATES:	8, 9 September 2020
DATES OF WRITTEN SUBMISSIONS:	Appellant's submissions: 8 December 2020 Respondent's submissions: 6 January 2021 Appellant's submissions in reply: 19 February 2021
MEMBER:	Power IC
HEARD AT:	Brisbane
ORDER:	1. The appeal is dismissed. 2. The decision of the Workers' Compensation Regulator is confirmed. 3. The Appellant is to pay the Respondent's costs of and incidental to this appeal.
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR - PHYSICAL INJURY - worker employed as an in home support worker - suffered a musculoskeletal injury to lumbar spine - whether injury arose out of or in the course of employment
LEGISLATION:	Workers' Compensation and Rehabilitation Act 2003 (Qld), ss 11 and 32
CASES:	Avis v WorkCover Queensland (2000) 165 QGIG 788 Briffa v Q-COMP (2005) 180 QGIG 70 Comcare v PVYW (2013) 250 CLR 246 Jones v Dunkel (1959) 101 CLR 298 MacArthur v WorkCover Queensland (2001) 167 QGIG 100 McDonald v Q-COMP (No. 2) (2008) 188 QGIG 180 Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301 Rossmuller v Q-COMP [2010] ICQ 4 Souz v CC Pty Ltd [2018] QSC 36 Swan v Monash Law Book Co-operative [2013] VSC 326 Waugh v Simon Blackwood (Workers' Compensation Regulator) & anor [2015] ICQ 028 Yousif v Workers' Compensation Regulator [2017] ICQ 004
APPEARANCES:	Ms J. Sorbello of Counsel, instructed by Morton & Morton Solicitors, for the Appellant Mr J. Wiltshire of Counsel, instructed directly by the Respondent

Reasons for Decision
Introduction

Mr Jeffrey Walsh ('the Appellant') was employed as an in-home support worker for Ozcare ('the Employer') when he made an application on 2 May 2017 to WorkCover Queensland ('WorkCover') seeking workers' compensation benefits for a back injury.
The Appellant's application was not accepted by WorkCover on the basis that he did not sustain an injury within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the Act'). On review, the Worker's Compensation Regulator ('the Regulator'; 'the Respondent') confirmed WorkCover's decision ('the decision'). Mr Wash appeals this decision.
Submissions

The Regulator submits that:

●there is insufficient evidence that the Appellant has suffered a personal injury;

●if the Appellant did suffer a personal injury, the injury did not arise out of, or in the course of, the Appellant's employment; and
●the Appellant's employment was not a significant contributing factor to any injury.

The Appellant submits that:

●he was allocated an increased workload and his injury was caused by repetitively bending and straining to perform vacuuming duties with poorly designed vacuum cleaners from mid-2016 until April 2017 at work;
●this injury arose out of, or in the course of, his employment and his employment was a significant contributing factor to those injuries; and
●the Appellant has suffered a personal injury, namely a musculoskeletal…

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.

Continue reading Walsh v Workers' Compensation Regulator

Details

AGLC: Walsh v Workers' Compensation Regulator [2021] QIRC 165
Case: [2021] QIRC 165
Decision Date: 14 May 2021

CaseChat Overview and Summary

In the case of Walsh v Workers' Compensation Regulator, the Appellant, an in-home support worker, contested the Workers' Compensation Regulator's decision to reject his workers' compensation claim for a musculoskeletal injury to his lumbar spine. The central issue in the dispute was whether the Appellant's injury arose out of or in the course of his employment. This appeal required the Court to consider the evidence presented regarding the nature and onset of the injury, as well as the extent to which the Appellant's employment contributed to the injury.

The court examined the medical evidence and the Appellant's account of the events leading to his injury. While the Appellant contended that his injury was work-related, the medical evidence provided suggested that his symptoms had developed over time, likely due to an increased workload rather than a specific work-related incident. The court found that the Appellant's claim did not meet the legal threshold for establishing that the injury arose out of or in the course of employment, as required by section 32(1) of the relevant Act. The court concluded that there was insufficient evidence to support the Appellant's contention that his employment was a significant contributing factor to his injury.

The Court dismissed the appeal and confirmed the decision of the Workers' Compensation Regulator, finding that the Appellant had not proven that his injury arose out of or in the course of his employment. The Court further ordered that the Appellant pay the Respondent's costs of and incidental to the appeal. This decision underscores the necessity for claimants to provide compelling evidence linking their injury directly to their employment to successfully pursue a workers' compensation claim.

Orders

Orders of the court

1. The appeal is dismissed.

2. The decision of the Workers' Compensation Regulator is confirmed.

3. The Appellant is to pay the Respondent's costs of and incidental to this appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

I am satisfied that the hospital notes provide the most reliable account of the incident involving the mattress given that they were taken at the time the Appellant was admitted. The Appellant did not return to the workplace after this incident and subsequently submitted a workers' compensation application on 2 May 2017. Medical evidence The Appellant first reported symptoms on 7 February 2017 to Dr Ebringer. These symptoms were described as "getting a lot of aches and pains and pins and needles in arms and legs".[20][20] Medical Records Bundle, page 21. On 17 February 2017, Dr Ebringer's notes record symptoms of pain radiating from the right flank around the abdomen.[21] [21] Ibid page 20. On 3 March 2017, Dr Ebringer noted a CT scan demonstrated a 30% wage fracture, which Dr Campbell considered was long-standing asymptomatic Scheuermann's disease.[22] [22] Ibid pages 19-20. The Appellant presented to Ms Andrews on 15 March 2017, with the records indicating that he reported "[g]lobal sharp pains throughout body for many months. Global back pain and tightness".[23] The Appellant visited Ms Andrews again on 24 and 29 March 2017 and 5 April 2017, complaining of neck and/or thoracic pain.[24] [23] Ibid page 49.[24] Ibid pages 53, 54 and 55. As previously noted, on 17 April 2017, the Appellant was transported by ambulance to the Hervey Bay hospital, following an incident involving the moving of a mattress. The Appellant attended upon Dr Shanmugam on 21 April and 20 August and 2017. The first time that his back symptoms were noted as being work-related was at the first of these appointments. The Appellant attended upon Dr Ebringer on 6 June 2017 with these notes recording the first mention of the symptoms relating to vacuuming at work. Dr Campbell examined the Appellant on 31 July 2018 and provided a report stating the following:The work related diagnosis is that of:1. Musculo-skeletal injury lumbar spineIt is likely Mr Walsh's lower back pain symptoms arose over a period of time following an increased workload from mid 2016 as opposed to a specific event. Dr Steadman examined the Appellant on 17 July 2019 and provided a report dated 24 July 2019, stating that:He reportedly suffers from whole body pain and pins and needles with "zingers" or electric shocks that occur hundreds of times per day. …It seems that his disease process is not fitting into a pattern. Given the extensive and non-anatomical nature of the condition it is difficult to advise what his complaint is let alone whether this represents a significant consequence of a work injury. The description of the onset and subsequent events and the current symptoms would suggest no relationship. The first question for determination is whether the Appellant has sustained an injury. As outlined in paragraph [18], I am satisfied that the Appellant has sustained a musculoskeletal injury to his lumbar spine.Did the injury arise out of, or in the course of, the Appellant's employment? Section 32(1) of the Act requires consideration of whether the injury arose out of, or in the course of, the worker's employment.

Decision

Reasons for decision

The Appellant has not met the onus of proving that his injury arose out of, or in the course of, his employment as contended in his SOFC. It follows that there was insufficient evidence to conclude that the Appellant's employment was a significant contributing factor to the injury. Conclusion The Appellant was a diligent and competent employee of OzCare, as evidenced by the consistent positive feedback from his clients. The evidence of his managers confirmed that he was well liked and received good feedback from clients. His evidence indicated that he was someone who took significant pride in his work. Ms Cooper and Ms Hull from OzCare gave evidence indicating that the Appellant did an excellent job. It is unfortunate that the Appellant's condition has resulted in his incapacity to work in a job in which he had performed to such a high standard. Regrettably for the Appellant, however, the evidence does not support a conclusion that his injury arose out of, or in the course of, his employment. In consideration of the evidence before the Commission, I have determined that on the balance of probabilities:·the Appellant suffered a musculoskeletal injury to his lumbar spine;·the injury did not arise out of, or in the course of, the Appellant's employment; and·the Appellant's employment was not a significant contributing factor to his injury. Order I make the following Orders:1.The appeal is dismissed.2.The decision of the Workers' Compensation Regulator is confirmed.3.The Appellant is to pay the Respondent's costs of and incidental to this appeal.

Ratio Decidendi

Legal Principle Established

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