Young v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 71
•17 April 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Young v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 071 |
PARTIES: | Young, Tracey Michelle v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2013/157 |
PROCEEDING: | Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 17 April 2014 |
HEARING DATE: | 10 February 2014 |
MEMBER: | Deputy President Kaufman |
ORDERS : | 1. The appeal is dismissed. 2. The decision of the Regulator is confirmed. 3. Costs reserved. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - whether injury arose out of, or in the course of employment - whether employment was a significant contributing factor to the injury - balance of probabilities - credit - appeal dismissed |
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32(1) |
| APPEARANCES: | Mr B.S. du Plessis, Counsel instructed by Shine Lawyers, for the Appellant Mr A. McLean-Williams, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator) |
Reasons for Decision
This is an appeal by Tracey Young (the Appellant) against a decision of the Review Unit, Q-COMP to set aside an earlier decision of WorkCover Queensland to accept the Appellant's application for worker's compensation under the Workers' Compensation and Rehabilitation Act 2003.
Since the making of the claim for compensation, the Act has been amended with the result that Q-COMP has been abolished and replaced by the Respondent, the Workers' Compensation Regulator, Simon Blackwood. In these reasons, Q-COMP will also be referred to as the Regulator.
The Appeal
On 15 October 2012 the Appellant commenced employment with Our Vacation Centre Pty Ltd as an "international travel agent". [T1-9, Lines 4-5]
On or about 7 December 2012, an Application for Compensation was lodged by the Appellant with WorkCover Queensland for an injury described as "Lower back, Disc displacement, prolapse, hernia" sustained by the Appellant when she "Fell off chair at work".
On or 21 December 2012, WorkCover Queensland wrote to the Appellant's employer to inform it that the Appellant's claim for compensation had been accepted.
On or about 14 February 2013, the employer sought a review of the claim, and on
15 March 2013, the Regulator set aside the decision of WorkCover, and substituted a new decision to reject the application in accordance with s 32 of the Act.
On or about 17 May 2013, the Appellant filed a notice of appeal against the decision of the Regulator. On 17 June 2013, it was ordered (by consent) that the time for filing of the appeal be extended to 17 May 2013. The appeal was subsequently listed for hearing before the Commission on 10 and 11 February 2014
This proceeding is by way of a hearing de novo and the Appellant bears the onus of establishing her case on the balance of probabilities. [1]
[1] Toll Holdings Ltd AND Q-Comp (WC/2010/96) - Decision <
Issues for Determination in this Appeal
Section 32 of the Act relevantly provides:
"32 Meaning of injury
(1)An injury is personal injury arising out of, or in the course of, employment if-
(a) for an injury other than a psychiatric or psychological disorder-the employment is a significant contributing factor to the injury."
It is conceded by the Regulator that the Appellant was a "worker" within the definition of that word in the Act, and that she sustained a personal injury.
[Respondent Submissions, Paragraphs 8, 9)
The issues for determination in this appeal are:
·whether the Appellant sustained her injury arising out of, or in the course of employment; and
·whether the employment was a significant contributing factor to the injury.
Background
The Appellant was employed as an "international travel agent" and worked
35- 40 hours per week, between the hours of 8.30 am and 5.00 to 6.00 pm.
The Appellant's role was a telephone-based sales position where contact with customers was limited to either phone conversations or email correspondence.
[T1-24, Lines 21-25] These communications with clients were facilitated by a central "switch", which would receive any incoming calls, and then allocate calls to employees, and would then log a record of the phone call on a computer system. [T1-24, Lines 40-44, T1-28, Line 29] Supervisors are able to listen into any inbound or outbound calls that employees receive or make through their personal extension number. [T1-61, Lines 1-9]
The Appellants' place of work can be best described as a call-centre, with more than one hundred and fifty employees, divided into teams of approximately twenty-five. [T1-58, Lines 5-11]
Employees, including the Appellant, would sit at a crescent-shaped workstation "pod" that housed three employees on each side of a partition that divided the bench top. [T1-9, Lines 30-46] The Appellant gave evidence to the effect that she sat in the middle position, with an employee on either side of her. [Exhibit A1]
At the beginning of each work day employees are required to "log-in" to the phone system and are subsequently assigned a list of clients according to the agent's particular specialty or selling focus, or past association with a particular client.
[T1-11, Lines 19-30]The telephone system used by employees, including the Appellant, facilitated the "log-in" process through a screen on the phone itself which would register their presence on the system. The telephone allowed for a headset to be plugged into the system. [T1-11, Lines 39-41]
This appeal falls to be determined on a relatively narrow basis: Did the Appellant sustain her personal injury in the manner she alleges? Did the Appellant's personal injury arise out of, or in the course of, her employment and, if so, was that employment a significant contributing factor to the injury?
The Injury
The Appellant asserts that she was injured on Friday 16 November 2012, at around 11.00 am, when she slipped from her chair and landed forcibly on her buttocks on the floor [T1-13, Line 11]. After the fall she felt immediate pain in her lower back, which radiated upwards. [T1-15, Lines 23-26] She stated that the incident occurred shortly after she had returned to her desk from an approximately 30 minute staff meeting that had commenced at around 10.15 am. [T1-13, Lines 24-30] The injury was only witnessed by Annabelle Godfrey (a former employee, apparently no longer contactable to give evidence before the Commission).
It is instructive to set out the portion in the transcript where the Appellant describes how she allegedly suffered the injury [T1-13, Lines 36-46; T-14; T-15, Lines 1-16]:
"After the meeting, what happened?---I went to go back to my desk and I noticed that there was a cord, no different from the cords that are on the speakers here, and it was wrapped around the caster of my chair and I thought that's different, so I went over. I sat down and looked down at it and thought I'll see if I can undo it like that and that way I'm at my work station so I'm not - not not being at my work station where I need to be and - - -
DEPUTY PRESIDENT: So, you sat in your chair to untangle it?---Yes, I did, yes. Yes?---And I leant forward and untangled it as best I could. Kylie was to the right of me and shaking her head, rolling her eyes going, oh my God, and then she got up and walked away and headed towards what we considered our lunch room. We had a big staff room area which is called the lunch room.
MR du PLESSIS: Was Michael at his station at that stage?---No, no, I don't think Michael was there that day. I honestly - I cannot recall but I don't remember seeing Michael in the morning.
Did you manage to untangle the cord?---Yes, I untangled the cord.
And what happened next?---Then as - just before while I was trying to untangle the cord, I had a call coming through and calls are like gold within the company. You just don't miss a call. It's not good practice to miss a call because it could be – you know, it's basically bread and butter to the company, and I went to try and reach it and I missed it by the time I'd got my head setback back into the junction and back on and I was like, oh, I've missed it, so I was a little bit frazzled by the fact I missed the call, because they do actually keep tally of what calls we're taking and the volume and what we're doing for the course of the day. Then I was sitting there and then I'd moved back out - I was still out basically from my chair so I was still sitting out a bit, had gone to grab - I plugged back in the headset, gone to take the call, missed the call, frazzled about that. Annabelle walked around to - - -
Who is Annabelle? Can you recall her surname?---Godfrey.
All right. You said she walked around from - - -?---From her side.
Yes?---So, she walked around from her side around to where Kylie would normally be sitting, and she had some papers in her hand like this and she was standing there. She was looking at me and I felt - I felt uncomfortable, and then she said, where's Kylie, and I said I think she's gone to the lunch room, and she said oh, and I said she might be a while. She just said oh, and she just kept standing there, and out of being annoyed at missing my call and frazzled with what had just happened, also with the cord, Annabelle watching me, it was quite off-putting and I pulled myself into my work station. I was quite - a little bit huffy and I pulled myself into the work station like that, went to grab my headset because another call was coming through and I thought this is all I need. What am I - - -
You're showing in the witness box that you put your two forearms on the
desk?---And pulled myself in, yes.
And you are also showing that you slightly lift yourself out of the chair while doing so?---Yes, yep, and I just went to pick up my head - I had my headset - when I've missed the call, I got grumpy in the first instance, took my headset off, put it back on the desk and that's when she had walked around. She was standing by me. I had another call coming through, grabbed my headset - went to grab my headset and I'd already pulled myself into my work station looked away from her. I didn't want to be looking at her. I went to grab my headset, went to put it on and as I did such, I've leveraged myself forward and as I've gone to reposition myself and lift myself off my chair, it's just like someone's pulled it out from underneath me. It's just - it's come away from underneath me and before I knew it I was flat on my backside on the ground horribly embarrassed.
You demonstrated in the witness box that you pulled yourself into the work station by placing your forearms on the desk. Why this manoeuvre instead of any other?---I don't really have enough strength in this wrist any more and I notice it's quite touchy and has been for a long time, and it just - I - it - I - I don't know. Maybe it was because I was huffy as well and I just wanted to pull myself away from her and not look at her, not have anything to do with her. I was trying to give her a clear signal that she wasn't needed standing right there and she could go now.
Is there anything wrong with any of your wrists?---Yes. I've got a - I had a scaphoid injury so I broke my scaphoid and I had a protrusion out of the scaphoid and it's since been operated on, and I've had a lot of scar tissue removed from my wrist and it's just never been the same since."
The Appellant gave several versions of the aetiology of her injury. These have been conveniently summarized in the submissions of the Regulator, which I largely adopt hereunder.
"The Appellant did not report her injury on the day of her injury; she claims this is because 'I was terrified of having to go through the same rigmarole that I went through previously with WorkCover.' [T1-16, Lines 20-21] (The reason she gave was that when she had worked for Flight Centre in 2010, she fell down a ramp at a railway station and broke her wrist and elbow. [T1-16, Lines 25-35] After making a WorkCover claim she was bullied upon returning to work after a nine month break during which she underwent surgery. [T1-17, Lines 18-26]) The Appellant claims that she went home and rested for the weekend, yet also claims there was another incident of pain whilst retrieving a coffee cup from the backseat of her car and that she felt something 'exactly the same as when I had first fallen off my chair.'
[T1-18, Lines 13-14] "There is no contemporaneous evidence that is corroborative of the Appellant's version of events supportive of her worker's compensation claim. Indeed, all of the available evidence closest in time to the alleged date of injury records the Appellant as having attributed her condition to other non-work related causes.
The Appellant returned to work on Monday 19 November, and was limping. At that time she told Ms Lisa McFadzean (now Mrs Lisa White): "I must have done it at home on the weekend in my car when I twisted around to get something out of the back of the car." [T1-18, Lines 32-37]
The Appellant did not attend work on Tuesday, 20 November 2012. She sent a text message to Ms Sasha Danger explaining her non-attendance and attributing her sore back (sore since the Sunday) to her having undertaken a weekend "cleaning mission", aggravated by her then "sleeping on it wrong." [T1-18, Lines 43-46]
Ms Danger on-forwarded that text message to Lisa McFadzean.On the evening of 20 November 2012 the Appellant saw the "Med-Call' Doctor,
Dr Polwattage Perera, who attended at her home. The Appellant was adamant that she had explained to Dr Perera how the injury had occurred, but implored him not to make any written note of it, because "I was very, very scared of the repercussions of what that might cause as far as my work went, and I just wanted to get back to work." [T1-19, Lines 22-25] She was most careful to tell Dr Perera during his 55 minute visit that she had fallen off her chair at work. [T1-36, Line 27; T1-37, Lines 13, 42-43, 45-46]On the morning of Wednesday 21 November 2012 the Appellant was in a great deal of pain and went to see Dr Burnard James Elliott, at the "Metro GP" Medical Centre, at Biggera Waters. The Appellant claims that she told Dr Elliott in precise terms what had been the mechanism of her presenting injury:
"I've been saying that I hurt myself in the car, but I actually fell at work. I fell off my chair… And I said "Just please don't - I don't want it documented, I just want it to go away. I just want to get on with things …" [T1-20, Lines 27-34]
The Appellant is adamant that she told both Dr Perera, and Dr Elliott about her alleged mechanism of injury (falling off a chair) but that she urged both these doctors not to make a written record of it. It is her case that they acceded to her request, in that regard. Neither Dr Perera nor Dr Elliott now recalls this. Each gave evidence to the effect that he would almost certainly have remembered such a conversation, if it had taken place.
The Regulator submitted that this just does not ring true and that there was no logical reason for the Appellant to implore the doctors not to make any note regarding her fall at work, and engage in subterfuge, on her behalf. I tend to agree.
Doctor Elliott referred the Appellant for a CT scan at Queensland X-ray, at
Hope Island. Queensland X-ray wrote back to Dr Elliott on 21 November 2012 reporting on the results of a CT scan, indicating that the cause of the Appellant's condition was a "fall in a shopping centre." This is yet another explanation for her symptoms, also unrelated to matters of her employment. [Exhibit R6]The first report by the Appellant to any doctor that records an alleged fall at work was not until (after having been taken there by ambulance officers after suffering unbearable pain, [T1-22, Lines 1-9]) Dr Nicholas Yim, at the Robina Hospital, eventually made an addendum note of it, at 5.12 am on 30 November 2012.
The Regulator submitted that the fact of a work-related cause being mentioned on
30 November smacks of more recent invention by the Appellant and observed that even then, Dr Yim recorded the primary condition as one of "longstanding back pain for three months. Original injury: 105 kilo partner lying on top of her … Two weeks ago had been lifting boxes." [Exhibit R8] Dr Yim also noted that the Appellant had recently sought osteopathic treatment for her condition, two weeks prior to her hospital presentation. [T2-15, Lines 18-20] As the Regulator observed, this is another fact not advised by the Appellant to any previous medical practitioner.Dr Yim said in evidence that his clinical notes (about her partner lying on top of her, lifting boxes, and osteopathic treatment) were made by him in relation to the presenting (lower back) pain, and were not written in reference to any unrelated upper back, or shoulder pain. [T2-18, Lines 30-37] His practice is to differentiate in his notes if the history is given in relation to an unrelated or different site of back pain. [T2-19, Lines 23-25]
It was after being discharged from hospital that the Appellant finally told her employer what she asserts really happened. [T1-22, Lines 27-33, 38-43]
The Regulator submitted that the Appellant's evidence regarding the work-related cause of her condition cannot be confidently accepted, particularly in the absence of any corroborative evidence, when so many contrary explanations have been given by her on prior occasions, closer to the event in question.
I agree. There are real questions regarding the Appellant's credibility. I cannot be satisfied, on the balance of probabilities, that the Appellant even fell off her chair, let alone that her injury was work related. I also tend to agree with the Regulator's submission that the Appellant's oral evidence gave the impression of having been rehearsed. In my view the falling off the chair incident, as set out in paragraph 20 above, seems unlikely.
That of itself is sufficient to dispose of the appeal. However, I would add that none of the medical evidence in this case goes so far as to persuade me that the Appellant was injured when she fell off her office chair. Once the other versions of how she sustained her injury were put to the various medical witnesses, they all, properly in my view, accepted that any conclusion that the injury was caused by a fall from an office chair became problematic.
In particular, the Appellant relies on Dr Scott Campbell to prove that her injury is work-related. Doctor Campbell saw the Appellant once, for a medico-legal report, on instructions given by the Appellant's solicitors. The Appellant told him that she had fallen heavily from a chair, and he was of the understanding that this was the only mechanism of accident. He indicated that when preparing a medico-legal report he is entirely reliant on what he is told by the patient, and must accept that information uncritically, and at face value. [T1-47, Lines 30-32]
Doctor Campbell conceded that the other causes - those not told to him by the Appellant, including the possibility of the Appellant falling in a shopping centre; of her trying to move her 105kg partner who had fallen asleep on top of her; and of her twisting in a car seat - might also produce the same clinical signs and symptoms as were seen by him on the date of his clinical examination. [T1-47, Lines 34-44]
Having been told of the other causal factors, Doctor Campbell was less than confident about his diagnosis: "If the history is that there has been pre-existing back pain and/or injuries in the - in the post-accident period, then the - then - then it [my diagnosis] has become less confident." [T1-48, Lines 14-16]
Whilst the lay evidence does not conclusively rule out the possibility that the Appellant fell off her office chair, it does tend to cast doubt on the Appellant's version of events. Having concluded as I have it is not necessary to turn to this evidence.
The Appellant submits that I should draw an inference that the evidence of
Ms Godfrey would not have assisted the Regulator because the Regulator did not call her; a person who purportedly witnessed the incident in question and made fun of the appellant, and who later apparently denied the event even occurred. I do not accept this submission, because I accept the Regulator's explanation that she had left the employer and was unable to be contacted.Ultimately, this appeal turns on the credibility of the Appellant. As I have said, she has given so many different versions of what caused the back injury that I am unable to accept her contention that it was due to the fall from her chair. As I am not persuaded that such a fall actually occurred, I cannot find that her injury arose out of, or in the course of, her employment.
The appeal must be dismissed and the decision of the Regulator confirmed.
I will reserve the question of costs.
Order accordingly.
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