Howard v Workers' Compensation Regulator
[2015] ICQ 2
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- Unreported Judgment
- Howard v Workers' Compensation Regulator[2015] ICQ 2
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Howard v Workers' Compensation Regulator[2015] ICQ 2
Howard v Workers' Compensation Regulator[2015] ICQ 2
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Howard v Simon Blackwood (Workers Compensation Regulator) [2015] ICQ 002 |
PARTIES: | WARREN HOWARD (appellant) v SIMON BLACKWOOD (WORKERS COMPENSATION REGULATOR) (respondent) |
CASE NO/S: | C/2014/19 |
PROCEEDING: | Appeal |
DELIVERED ON: | 29 January 2015 |
HEARING DATE: | 19 August 2014 |
MEMBER: | Martin J, President |
ORDER/S: | Appeal dismissed. |
CATCHWORDS: | WORKERS’ COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – NATURE AND SCOPE OF APPEAL AND REVIEW – where the appellant claimed he injured his back while lifting steel plates – where the appellant suffered a similar work injury a month prior which was the subject of a successful compensation claim – where the Commissioner had determined that the appellant was not a witness of credit – where there were no witnesses to the appellant lifting the steel plates – where the Commissioner determined that the appellant had not satisfied the onus of proof – whether the Commissioner erred in finding that the appellant failed to establish that the appellant lifted steel plates from the ground to the bench – whether the Commissioner erred in acting contrary to the evidence Workers’ Compensation and Rehabilitation Act 2003, s 32, s 561 |
CASES: | Davidson v Blackwood [2014] ICQ 008 Pouesi v Q-Comp (C/2013/4) Decision < http: www.qirc.qld.gov.au="" >. |
APPEARANCES: | L Willson on behalf of the appellant, instructed by Shine Lawyers A Johnson on behalf of the respondent directly instructed by the Workers’ Compensation Regulator |
Introduction
- [1]On 2 February 2010 Mr Howard suffered an injury to his lower back and a psychological injury while performing work for his employer, Steelrod Pty Ltd. The appellant successfully claimed compensation in respect of those injuries. On 16 March 2010 Mr Howard submitted a claim for compensation to WorkCover Queensland in respect of a further injury to his back he described as occurring while lifting steel plates at his workplace on 3 March 2010. WorkCover accepted this claim.
- [2]The Workers’ Compensation Regulator (Q-COMP, as it was then), reviewed WorkCover’s decision, and on 1 March 2013 set it aside and substituted a decision that Mr Howard did not sustain an injury pursuant to s 32 of the Workers’ Compensation and Rehabilitation Act 2003 (the Act)[1]. Although the Regulator found that the appellant had sustained a personal injury, there was insufficient evidence that the injury arose out of, or in the course of, his employment. Mr Howard appealed this decision to the Queensland Industrial Relations Commission.
- [3]This is an appeal under s 561 of the Act from the decision of Commissioner Thompson given on 28 February 2014. The Commissioner found for the respondent, affirming the decision of the Regulator.
- [4]Before the Commission, the appellant gave evidence that on 3 March 2010 he was lifting large steel plates from the ground onto a table for approximately 30 minutes when he felt pain in his back. It is agreed between the parties that the plates weighed 25 kilograms. Having left work early due to pain, the appellant attended a physiotherapist who recommended hospital treatment. Mr Howard returned home. Later that evening an ambulance was called and the appellant was admitted to hospital. He did not subsequently return to work.
- [5]The Commissioner found that the appellant had not proved on the balance of probabilities that he did in fact lift several steel plates in the course of his employment on 3 March 2010, causing him to suffer a personal injury recognised by either s 32(1) or s 32(3)(b) of the Act.
Grounds of appeal
- [6]The grounds of appeal fall under two broad headings:
- (a)that the Commissioner erred in finding that the appellant failed to establish that the appellant lifted steel plates from the ground to the bench; and
- (b)that the Commissioner erred in acting contrary to the evidence.
- [7]These grounds are connected and can be dealt with together.
- [8]In dismissing the appeal, Commissioner Thompson concluded:
“[153] Howard, in my opinion, was not a witness of credit and whilst not wishing to fully expand on other areas of his evidence where it was found to be questionable, I find it difficult to accept with any surety his evidence that on 3 March 2010 he suffered an injury to his back whilst undertaking work associated with painting steel plates and as such he has failed to establish within the standard of proof, what is required to enliven s 32 of the Act.
[154] Further, in relation to the 3 March 2010 alleged incident, I would have preference for the evidence of Ihle, the direct supervisor of Howard, which confirmed that Howard, in the course of his employment, had never been instructed to lift the steel plates by himself and that he had not witnessed such lifting by Howard on the day in question being 3 March 2010.”
- [9]The basis of the appeal is that the Commissioner erred in finding that Mr Howard’s evidence was uncorroborated and further erred in finding that Mr Howard was not a witness of credit as he did not take into account evidence of medical conditions which affected the appellant’s performance as a witness.
Relevant principles
- [10]This is an appeal by way of rehearing under s 561 of the Act. The appellant makes reference to the following statement by Hall P in Pouesi v Q-Comp[2]:
“[4] To succeed in an appeal under section 561(1) of the Act an appellant is neither required to show an error of law nor required to show that the decision of the Commission is unreasonable. However, the decision must be shown not to have been reasonably open.”
- [11]That approach does not accurately reflect the principles to be applied in an appeal by way of re-hearing. As set out in Davidson v Blackwood[3]:
“[10] … [s 561 and s 562 are of] similar effect to those considered by the High Court in Allesch v Maunz. In considering the difference between an appeal by way of rehearing and a hearing de novo it was emphasised that, in the former type of appeal:
- (a)the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, and
- (b)an appellate court can substitute its own decision based on the facts and the law as they then stand.
[11] Further consideration was given to the characteristics of an appeal by way of rehearing in Fox v Percy. In the joint judgment of Gleeson CJ, Gummow and Kirby JJ the following is said:
‘[22] … The ‘rehearing’ does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. …
[23] … On the one hand, the appellate court is obliged to ‘give the judgment which in its opinion ought to have been given in the first instance’. On the other, it must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
…
[25] … the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’’
(emphasis added, citations omitted)
Evidence before the Commission
- [12]The appellant gave oral testimony before the Commission setting out the incident on 3 March 2010 as described above, although he stated the steel plates weighed approximately 35 kilograms. The Commission also heard from various medical practitioners, Mr Howard’s wife and employees of Steelrod Pty Ltd. There were no direct witnesses to the incident and the accounts from medical practitioners and Mr Howard’s wife are derived from what was told to them by the appellant.
Credibility of Mr Howard
- [13]Mr Howard’s accounts of the incident on 3 March 2010 to medical practitioners as recorded in their reports and through oral testimony are inconsistent. The details of the work undertaken, the sequence of events and parties involved differ considerably. In some reports the incident is not recorded at all and symptoms are attributed to the injuries sustained on 2 February 2010.
- [14]It was submitted that the Commission erred in its finding that Mr Howard was not a witness of credit as the Commissioner did not take into account the appellant’s medical conditions which affect his memory. These include Major Depression and the attendant effects of the pain relief drug gabapetin which the appellant had taken on the day of the hearing. However, even if the appellant’s oral testimony was affected in the manner described, this does not explain the inconsistent histories he recounted to medical practitioners and others following the incident.
- [15]A pertinent example of these inconsistencies is the Queensland Ambulance Service (QAS) record of Mr Howard stating that he had been painting and gardening the day before the incident. There was no mention of being injured at work that day. This record was confirmed by the relevant QAS officer in oral testimony. This record does not align with Mr Howard’s later accounts to other medical practitioners. Before the Commission, Mr Howard denied that he undertook any painting or gardening work after 2 February 2010 while his wife stated that further painting was undertaken. While his medical conditions could be a factor in not now recalling whether or not these domestic activities were undertaken, they do not account for the change in his explanation of the injury to medical practitioners. Mr Howard’s medical conditions also do not explain why he did not disclose his past medical history to his employer or make an incident report on 3 March 2010.
- [16]It was open to the Commissioner to take these factors into account in determining whether the appellant was a witness of credit and what weight to attach to his testimony.
- [17]There was evidence before the Commission that Mr Howard had mentioned to a work colleague that he had injured his back while painting. There was also evidence that Mr Howard had told a Leading Hand, Mr Ihle, that his difficulties bending were attributable to motorcycle accidents. Mr Ihle also denied that the appellant was ever tasked to lift the steel plates without assistance.
- [18]The Commissioner found:
“[147] There was no witness evidence to directly corroborate [Mr Howard’s] evidence in regard to the work-related injury with reliance only on the evidence of Lisa Howard and Rush whose knowledge of the event was limited to information provided by Howard on the afternoon of 3 March 2010. The evidence of McGrath, Ihle and Paddon-Jones, that there were occasions when employees would lift material up to 25 kilograms in weight, fell short of assisting in corroborating Howard’s evidence regarding his injury as their evidence on the issue was more a generalisation of the overall worksite rather than pertaining to the actual task performed on the morning of 3 March 2010”
- [19]The appellant submitted that the Commissioner erred in his assessment of this evidence and did not consider that the appellant worked alone.
- [20]Having determined that Mr Howard was not a witness of credit, it was open to the Commissioner to find that second hand accounts of the incident provided by Mr Howard and evidence that such a task was performed on occasion did not amount to corroboration and were not sufficient to find on the balance of probabilities that the injury occurred in the way described by Mr Howard.
Conclusion
- [21]On the evidence before the Commissioner, it was open to him to hold that the appellant had not discharged his onus of proof. No error has been demonstrated.
- [22]The appeal is dismissed.