Westpac Banking Corporation v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 24
•6 February 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Westpac Banking Corporation v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 024 |
PARTIES: | Westpac Banking Corporation v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2013/16 |
PROCEEDING: | Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 6 February 2014 |
HEARING DATES: | 16, 17 October 2013 |
MEMBER: | Deputy President Swan |
ORDERS : | 1. The decision of the Regulator is set aside. 2. The appeal is upheld. |
| CATCHWORDS: | WORKERS' COMPENSATION – APPEAL AGAINST DECISION – decision of Simon Blackwood (Workers' Compensation Regulator) – Appellant bears onus of proof – no reported history to medical specialists of prior pain – appeal upheld. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32(1) |
| APPEARANCES: | Mr M. O'Sullivan, Counsel instructed by HWL Ebsworth for the Appellant. |
This application is made by Westpac Banking Corporation (Appellant) against a decision of Q-Comp (the Regulator), dated 18 December 2012, to accept that the 'worker', Ms Tucker, sustained an 'injury' in accordance with section 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) and that Ms Tucker had an entitlement to compensation.
Legislation
The Legislation relevant to this Appeal is s 32(1) of the Act:
"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."
Onus of Proof
The Appellant bears the onus of proof on the balance of probabilities that the decision appealed against was wrongly made.
Issue to be determined
The issues to be determined are whether Ms Tucker's injury arose out of, or in the course of, employment; and whether employment was a significant contributing factor.
Witnesses
The witnesses for the Appellant were:
· Ms Sally Walker (Westpac employee-teller)
· Ms Kayla Wright (Westpac employee-teller)
· Ms Krista Veurman (Westpac employee-teller)
· Ms Kathleen Silcox (Westpac employee-assistant bank manager)
· Dr Khursandi (Orthopaedic Surgeon).
The witnesses for the Regulator were:
· Ms Kristee-Ann Tucker (injured worker)
· Dr Steven Frederiksen (General Practitioner)
Inspections
The Appellant requested that the Commission undertake inspections of the workplace.
During those inspections, the Commission viewed the opening of the door from the teller section into the backroom containing the safes and the opening of the safe doors.
Employment history of Ms Tucker
Ms Tucker worked as a part-time teller at the city branch of the Bundaberg Westpac Bank and had done so since September 2011. Ms Tucker worked seven hours each Monday and Tuesday, and for eight hours each Friday [T1-43].
Appellant's evidence
The Appellant asserts that Ms Tucker had not suffered an "injury" as a consequence of her employment with the Appellant and that work activity was not "a significant contributing factor" to the alleged injury.
The Appellant states that there is no requisite linkage between the employment and the alleged injury of her right wrist.
The Regulator has stated that part of Ms Tucker's duties was to count large bundles of notes, counting by hand using the first and middle fingers of her right hand in a 'flicking motion' with the outside of her right wrist resting on the counter [T1-45].
Ms Tucker had noticed, at times, a "niggly little pain" in her right wrist, but not to the point that she completed an incident report and provided it to the Appellant.
Ms Tucker noted that the "niggly little pain" ceased when activity ceased and she had not discussed this with work colleagues with the exception of Ms Silcox.
The Appellant says that Ms Tucker was unable to nominate a specific work event activity which was causative of her wrist condition. Ms Tucker had not suffered any injury at work which could be described as acute.
Ms Tucker became aware of painful symptoms in her right wrist occurring on a Saturday morning (21 April 2012). She had not experienced any symptoms, other than the 'niggly little pain', in the preceding weeks or months.
Of the witnesses called by the Appellant, the following represents the nature of their evidence:
(a) Ms Sally Walker
· Ms Walker had worked in the Westpac Bundaberg Branch from April 2011.
· She worked part-time until March 2011 and then full time.
· She had no difficulty with using the door from the teller section to the back room containing the safes. Her evidence was that the door was 'no heavier than a normal door' [T1-10].
· In terms of the safe doors, Ms Walker said that whilst the doors were heavy they were 'very light' to open [T1-15].
(b) Ms Kayla Wright
· Ms Wright worked at the Bundaberg branch of Westpac from 2008. She worked a full time week.
· She had no difficulty in opening or closing the door between the teller area and the safe doors were solid, but not difficult to handle.
· Ms Wright denied that there had been staff shortages during the period when Ms Tucker worked at the Branch.
(c) Ms Krista Veurman
· Ms Veurman worked at the Bundaberg Branch of Westpac from 2010 in a part time capacity.
· She also had no difficulty with the door from the teller area from the back processing room. It was not difficult to open or close [T1-27].
· Ms Veurman also agreed with Ms Wright that there had been no staff shortages during the period of September 2011 and April 2012 until Ms Tucker went on leave [pT1-28; 45].
· Ms Veurman did experience a problem with her wrist in December 2011 and as a precautionary measure she was taken off counter work for a week [T1-29]. The pain ceased at the end of the week.
(d) Ms Kathleen Silcox
· Ms Silcox was the assistant bank manager of the Bundaberg Branch.
· She had no problems with opening or closing the door in question.
· She had recalled that Ms Tucker had complained of her right wrist condition on a Monday morning. When she asked Ms Tucker if she had been hurt at work, she said that Ms Tucker said she did not recall hurting her wrist at work. Ms Tucker stated to Ms Silcox that she experienced pain in her wrist on Saturday morning 21 April 2012 but had not hurt herself at the party she had attended on the night before.
After considering the evidence of Ms Tucker and that of her colleagues, the Appellant claimed that if work activity had been of any significance, then it would be expected that Ms Tucker would have experienced symptoms at least by the Friday night prior to 21 April 2012.
With regard to Ms Tucker's claim of experiencing "niggly little pain in my wrist", she stated that this had occurred only once when she had counted notes. She had also stated that the pain so described had also occurred when she had opened the safe door [T1-46]. However, Ms Tucker said that when this pain had occurred, it had subsided instantly after she had stopped performing the activity [T1-46].
The Appellant also says that it is important to note that Ms Tucker had not complained of performing any significant work activity prior to waking at home on the Saturday and experiencing the pain in her right wrist.
Ms Tucker was unsure of the date of experiencing the "niggly pain" - it could have been sometime between September 2011 and April 2012.
When questioned by the Appellant as to her experiences with opening and shutting the safe door, Ms Tucker said it was a very heavy door, and while it was not too hard pulling the door open,' "you had to get it moving first and you use a little bit of force" [T-1-50]. As well Ms Tucker gave evidence that the work she performed was very 'repetitive' but 'light' [T1-51].
Medical Evidence
Dr Kerswill - General Practitioner
Dr Kerswill was not required by either party to give direct evidence before the Commission, however, his correspondence dated 11 May 2012 was submitted and marked as Exhibit 9.
Dr Kerswill saw Ms Tucker on 24 April 2012 when she had complained of pain in her right wrist.
Ms Tucker had not complained of prior right wrist injury pain and could not identify any acute injury. Ms Tucker had advised Dr Kerswill that she was concerned that her symptoms related to the repetitive activity she performed as a bank teller for the Appellant.
Dr Kerswill thought her symptoms were most likely related to a forearm tenosynovitis, but he was "uncertain as to the true trigger for her symptoms" [Exhibit 9].
The same diagnosis was provided by Dr Kerswill after Ms Tucker had seen him on 28 April 2012 where Ms Tucker complained of worsening pain.
Ms Tucker's physical examination identified a normal wrist, finger and elbow range of movement and there was no swelling in that area.
Dr Kerswill was unable to say whether the symptoms were "solely from her work or from other domestic causes. Repetitive activities involving the right forearm at work, a definite possible trigger for her symptoms of tenosynovitis".
Dr Fredricksen (Orthopaedic Surgeon)
Dr Fredriksen's diagnosis of Ms Tucker's condition was "Right extensor carpi ulnaris tenosynovitis, distal radioulnar joint effusion and synovitis".
Dr Fredriksen believed that Ms Tucker's injury was "multifactorial with a combination of repetitive activities, both within the workplace and at home". In his view, "within the workplace, repetitive activities such as lifting bags of coins, opening and closing safe doors, repetitive typing and cash counting activities would contribute to the condition. Within the home, repetitive lifting and carrying of small children, as well as general household activities, would also contribute to the condition. This is not unreasonable given the lack of a specific injury trigger" [Exhibit 6].
In examination in chief, Dr Fredriksen stated that after considering the following outline posed by the Regulator:
The outline, based upon Ms Tucker's evidence, mentioned the counting of bank notes; the mechanism for so doing; experiencing a small niggly pain that ceased soon thereafter; opening the door to the bank's safe and closing the door and at the time feeling the same pain and that on 21 April 2012 Ms Tucker woke with severe pain in her right wrist.
Dr Fredriksen was asked, "Are you able to help us with whether, in your opinion, those work activities would be likely to have been a significant contributing factor to her right wrist injury?"
Dr Fredricksen's response was:
"After listening to your outline and when considering the presentation at the time it is my opinion that that – with those activities within the workplace could have been a significant contributing factor to the presentation and the condition" [T1-56].
During cross-examination, the Appellant asked Dr Fredriksen to repeat his evidence where he had stated that "the activities of work could have been a significant contributing factor … ." That statement was reaffirmed by Dr Fredriksen [T1-57].
The Appellant then posed this question to Dr Fredriksen:
"And I put it to you that you could not place it any higher than that without knowing much more about the type of repetitive activities that she was doing, measuring it in much more detail than simply making a general observation."
Dr Fredriksen answered "I think that that's true for both, you know, the workplace and the home environment. It would require - beyond history, it would require direct observation of activity" [T1-57].
Dr Fredriksen was further questioned by the Appellant, after the Appellant had advised of Ms Tucker's evidence where "niggly pain" ceased as soon as the particular work activity stopped, "If that is the case there would be nothing to suggest that the activity was causative of the condition?"
Dr Fredriksen's response was "I would disagree there. That is generally the most common manner in which this condition would present in the early phase, where you will have a pain which will then settle with ceasing activity and then will come on again with recommencement of that activity" [T1-58].
Finally Dr Fredriksen responded to the question from the Appellant "At the end of all that you are in no better position than this, that the work activity could have been a significant contributing factor, that's correct?" Dr Fredriksen responded "Correct" [T1-58].
In re-examination, the Regulator sought to question Dr Fredriksen with the following: "Just on that last point my friend raised, can you help us with this. Whether, in your opinion, whether on balance of probabilities Ms Tucker's work activities were a significant contributing factor to her injury?"
An objection was raised by the Appellant to the effect that Dr Fredriksen had already responded by saying, on a couple of occasions, that the highest he could put it was that it (the work activities) could have been a significant contributing factor.
The objection was upheld and the Appellant was permitted to seek Dr Fredriksen's view as to what the word "could" might mean within the context of his prior responses.
Dr Fredriksen was privy to the conversation which passed between Counsel and the Commission around this point. Finally Dr Fredriksen stated:
"Well, I think it was a significant contributing factor but I can never say with – with 100 per cent certainty. Based on the presentation, based on the history and examination at the time of presentation and based on further discussions with regards to specific work activities it is my opinion that it is likely that it was a significant contributing factor, but you can't say that it was with 100 per cent certainty" [T1-60].
Dr Khursandi
Dr Khursandi provided two reports - one dated 15 February 2013 and the other, 12 April 2013.
In the first report (15 February 2013) Dr Khursandi noted that Ms Tucker underwent a "release operation" for de Quervain's tenovaginitis on 3 December 2012. Ms Tucker had advised that the recovery from the operation was uneventful and she still had no relief from pain in the right wrist which had now radiated to the forearm and elbows.
Ms Tucker had complained of pain in the ulnar border of the right wrist with activities such as pushing and lifting.
Dr Khursandi stated, that upon examination, Ms Tucker's upper extremities showed no muscle wasting. There was no sensory or motor deficit in either limb and deep tendon reflexes were present and symmetrical. An examination of the right wrist showed no swelling and no deformity. Ms Tucker demonstrated the full range of movements in the right forearm.
Dr Khursandi noted that Ms Tucker had not worked since 3 December 2012 and was of the view that "it is unlikely that her residual current symptoms in the right wrist would be work related".
When asked, in his report, to respond to what would be normal loads/movements or events that would cause an injury of the type diagnosed (Right Extensor Carpi Ulnaris Tenosynovitis, Distal Radioulnar Joint effusion and Synovitis), Dr Khursandi responded: "Repetitive lifting, pushing, pulling with the right wrist can precipitate tenosynovitis of the tendons at the wrist and synovities of the distal radioulnar joint" [Exhibit 7].
Further asked by the Appellant as to what would be normal loads/movements or events that would cause an injury diagnosed as Right De Quervains, Dr Fredriksen responded "De Quervain's tenovaginitis is a constitutional and stenosing condition and not work related."
Dr Khursandi agreed with Dr Fredriksen's opinion (the report of 23 June 2012) "that the condition of the right wrist as diagnosed following the MRI scan could be attributed to work as well as home activities. These activities could include repetitive lifting and twisting or pushing and pulling with the right hand" [Exhibit 7].
Dr Khursandi noted that both Dr Kerswill and Dr Fredriksen had not supported the diagnosis of de Quervain's tenovaginitis for which Ms Tucker undertook the operation performed at the Bundaberg Hospital.
Primarily, Dr Khursandi's view was expressed as follows;
"In view of the fact that Ms Tucker has not worked since 3 December 2012, it is unlikely that her ongoing symptoms of the right wrist would be attributed to her accepted work-related diagnosis of tenosynovitis and synovitis of the distal radioulnar joint. For all intents and purposes, the conditions would have ceased approximately three months after she stopped using the right hand for heavy physical activities" [Exhibit 7].
In his second report (12 April 2013), Dr Khursandi stated that, post surgery and after reviewing the surgical notes from the Bundaberg Hospital, his diagnosis of Ms Tucker's right wrist had not altered.
Dr Khursandi reported that: "The diagnosis of the work-related condition in April 2012 was that of extensor carpi ulnaris tenosynovitis and radioulnar joint effusion with synovitis and would have resolved after she ceased work on 3 December 2012. When she was examined on 6 February 2013, she had no ongoing work-related injury".
Further, Dr Khursandi stated "Ms Tucker does not give any history of preceding incident of injury at work or at home prior to the onset of right wrist pain on 19 April 2012. Notwithstanding the fact that the claim has been accepted as a work-related injury, I am unable to explain the cause of the right wrist condition." [Exhibit 8].
Consideration of the evidence and conclusion
It is clear from the evidence that:
· Large bundles of notes were counted by tellers periodically;
· Notes were counted by hand as well as by machine;
· Evidence from tellers was to the effect that generally no problems were encountered when opening and shutting the safe door.
· Likewise with counting notes, with the exception of Ms Veurman, whose pain resolved after a week.
Ms Tucker had not complained of any pain experienced ("niggly pain") to the Appellant. However, Ms Tucker had mentioned some pain to Ms Silcox, but had not related it to any work activity. Ms Tucker's evidence had been that any pain experienced by her had resolved quickly once the activity had ceased.
In Ms Tucker's Application for Compensation (submitted to the self insurer) she responded to the question "State briefly how the injury happened" as follows: "Unknown. Woke up in the morning with an ache/pain in wrist and up arm" [Exhibit 1].
After her consultation with her General Practitioner, Dr Gary Kerswill, the following comments were made by Dr Kerswill: "I saw Ms Tucker on 24/04/2012 when she complained that she had awoken with right wrist pain four days previously. She complained of pain with lifting and with wrist movement, but could not identify any acute injury. She expressed concern that her symptoms related to repetitive activity performed at work" [Exhibit 9].
In Dr Fredriksen's first report dated 13 June 2012, there is no mention of any right wrist history of pain given by Ms Tucker. In the second report of Dr Fredriksen under the heading of "Relevant Past Medical History", the comment was made that there was "No relevant past medical history was obtained on discussion with Ms Tucker". While this was stated, Dr Fredriksen also says that "It is my opinion that the prognosis is guarded in this case given the severe symptoms experienced and the aggravation noted within the workplace" [Exhibit 6].
Dr Khursandi's report (Exhibit 7] states that: "Ms Tucker denies having any right wrist symptoms prior to April 2012 and left wrist symptoms prior to October 2012" [Exhibit 7].
Further, Ms Tucker stated that she had no pain in her wrist on the Friday night before her experience of pain on Saturday 19 April 2012.
Ms Tucker may not have been one to complain, as suggested by the Regulator (especially when she says the pain did not persist and was quickly resolved when the work activity ceased), but it is unusual, in my view, that no reference was made to this when asked by Dr Khursandi if she had any prior symptoms of right wrist pain prior to 19 April 2012 and also at the time of completing her Application for Compensation.
I have considered the evidence of work colleagues, and while there was one reported case of Ms Veurman experiencing pain in her wrist whilst at work (pain which subsided after she refrained from performing certain duties for a period of one week), the general work duties described by these witnesses, and as performed by Ms Tucker, did not suggest any part of the work was physically onerous or pain inducing. However that does not of necessity mean that Ms Tucker did not experience things differently to others at work.
When the expert medical evidence is considered, it is clear that Dr Kerswill's evidence is that it was possible that Ms Tucker's symptoms may have been influenced by way of work activity or domestic causes [Exhibit 9].
Emphasis was placed upon the Reports and evidence of Dr Fredriksen by the Regulator. In final submissions, the Regulator stated that "Dr Fredriksen, it is submitted, was clear, unambiguous, prepared to make reasonable concessions, and persuasive. He certainly did not try to elevate his opinion to help his patient. He maintained that Ms Tucker's condition could have been attributable to both work and home duties. But when pressed he said, as described in paragraph 11(d) above, that it was likely that employment was a significant contributing factor to the injury. It is submitted that there is no apparent reason to not accept Dr Fredriksen's evidence. The standard of proof is the balance of probabilities. It is submitted that the specialist's evidence that it is likely that employment was a significant contributing factor meets that standard".
In examination in chief, the Regulator outlined Ms Tucker's evidence to Dr Fredriksen and asked the following question:
"Are you able to help us with whether, in your opinion, those work activities would be likely to have been a significant contributing factor to her right wrist injury?"
Dr Fredriksen's response was:
"After listening to your outline and when considering the presentation at the time it is my opinion that that – with those activities within the workplace could have been a significant contributing factor to the presentation and the condition" [T1-56].
The evidence further shows that in cross-examination, Dr Fredriksen twice confirmed that he could not put his opinion any higher than stating that Ms Tucker's activities at work could have been a significant contributing factor to Ms Tucker's condition and that he could not comment further without a "direct observation of activity" undertaken by Ms Tucker [T1-57].
In re-examination by the Regulator, when Dr Fredriksen was asked if he would explain his use of the word "could" he altered his opinion to state that he thought work was "a significant contributing factor … with regards to specific work activities it is my opinion that it is likely that it was a significant contributing factor" [T1-60].
I have been unable to accept the evidence given by Dr Fredriksen in re-examination by the Regulator. Having been explicit, firstly, in not agreeing with the Regulator's proposition during examination in chief that Ms Tucker's work activities were "likely to have been a significant contributing factor" (Dr Fredriksen stated that they "could have been a significant contributing factor"), on two further occasions, under cross-examination by the Appellant, Dr Fredriksen affirmed that opinion. The questions posed by both the Regulator and the Appellant during examination in chief and cross-examination were unambiguous and clear and Dr Fredriksen's responses did not alter.
Dr Fredriksen's responses to the same/similar questions during re-examination represented a major turn-around in his evidence, rather than a clarification in my view. There is a considerable leap between the meaning of the word "could" in the context of work duties which could be a significant contributing factor to Ms Tucker's injury to the new description provided by Dr Fredriksen in re-examination of Ms Tucker's work duties as being a "significant contributing factor"/"it is likely that it was a significant contributing factor".
The Collins Concise Dictionary (Australian Edition) describes the word 'could' as being "used in polite requests or in conditional sentences" and the word "significant" as "important and momentous". The description also used by Dr Fredriksen, "likely" is described as "tending or inclined" or "probable".
The evidence given by Dr Khursandi is now considered. Dr Khursandi was given no prior history of wrist complaint by Ms Tucker. He was unable to explain the cause of the condition within the context of how it had been accepted as a work-related injury.
I have preferred the evidence of Dr Khursandi over that of Dr Fredriksen. Dr Khursandi expressed the following opinion in the course of his evidence:
· That he was unable to explain the cause of Ms Tucker's right wrist condition in the context where it had been, by then, accepted as a work-related injury.
· Against the history of Ms Tucker awaking with pain in her right wrist on Saturday, 21 April 2012, Dr Khursandi stated that he would have expected continuous symptoms over a period of time and would not expect a sudden onset of pain on a morning, without pain having been experienced over the previous days.
· There had been no history of pain over the preceding days and Dr Khursandi said that he would not expect any work impairment "Not if it wasn't occurring during repetitive work activity, if the symptoms were not there during repetitive work activities".
· Niggling pain in the right wrist ceasing when work activity ceased was not significant. Dr Khursandi stated that it was only if there were aches and pain for hours or several days that it could be considered to be a significant factor, but not transient pain for a few minutes which then stops when the activity stops. He added "That's the nature of joints and muscles and tendons and ligaments".
· Dr Khursandi said that if it an injury had been caused by work activity, then he "would have expected pain to develop and stay on. I would not expect a transient pain that occurs when you push a heavy door and then to stop. That pain would stay on all the time."
I have accepted that evidence as being more credible than that of Dr Fredriksen.
The Appellant has established, on the balance of probabilities, that the decision of the Regulator has been wrongly made.
Ms Tucker did not suffer an 'injury' within the meaning of the Act.
The decision of the Regulator is set aside and the appeal is allowed.
The Regulator is to pay the costs of the Appellant.
Order accordingly.
0
0
0