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Gold Coast City Council v Simon Blackwood QIRC 125
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Gold Coast City Council v Simon Blackwood  QIRC 125
Gold Coast City Council
Simon Blackwood (Workers' Compensation Regulator)
Appeal against decision of the Workers' Compensation Regulator
2 July 2015
28 - 30 July 2014
31 July 2014 (Respondent's supplementary written submissions)
Industrial Commissioner Neate
WORKERS' COMPENSATION - APPEAL AGAINST DECISION - physical injury - employer appeals against decision of Workers' Compensation Regulator to accept worker's application for compensation - whether injury arose out of, or in the course of, worker's employment - whether employment was a significant contributing factor to injury - onus of proof
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 44 ALR 607
Blackwood v Mana  ICQ 027
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Coombes v Q-COMP (2007) 185 QGIG 331
Davidson v Blackwood  ICQ 008
Ian James Johnston v Q-COMP (2007) 185 QGIG 86
Labaj v WorkCover Queensland (2003) 174 QGIG 370.
Leighton Contractors Pty Limited AND Q-COMP (WC/2011/7) -
MacArthur v WorkCover Queensland  167 QGIG 100
Owen Richard Hancock v Q-COMP (2007) 184 QGIG 194
Q-COMP v Darren Bruce Parsons (2007) 185 QGIG 1
Q-COMP v Hetherington  176 QGIG 493
QR Limited AND Q-COMP (WC/2009/25) - decision
SPE Pty Ltd AND Q-COMP and Gary Clifford Fuller (C/2010/19) - decision
State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447
Sutherland v Q-COMP (2009) 190 QGIG 106
Taylor v Q-COMP and King (2008) 187 QGIG 105
Theresa Helen Ward v Q-COMP (C/2011/39) - decision
Toll Holdings Limited v Q-COMP (C/2011/14) - decision
Workcover Queensland v BHP (Qld) Workers' Compensation Unit (2002) 170 QGIG 142
Mr P. O'Neill, counsel instructed by Clayton Utz for the Appellant
Mr S. Gray, counsel instructed directly by the Respondent
- Gold Coast City Council ("the Appellant") appeals against a decision of the Workers' Compensation Regulator ("the Respondent"), made under s 32 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act"), to accept the application for compensation by Steven Guymer in relation to an injury to his right knee which Mr Guymer alleges occurred at the place of, and in the course of, his employment on 25 July 2013.
- Mr Guymer has been an employee of the Appellant since 1 March 2003. He is a labourer and worked in the Appellant's City Cleaning branch for all of that period. His duties have included water truck hoser and operator on night shift, road sweeper on night and day shift, beach tractor operator, barbecue cleaner, and doing litter cleaning runs and garbage truck operator runs. In July 2013, he was employed at the Appellant's small Beenleigh depot (since closed). His main duties were litter cleaning, with some relief shifts on other work. Five employees worked at that depot.
- On Thursday 25 July 2013, Mr Guymer was working on the litter run, driving an Isuzu Euro 5 light truck and collecting rubbish. The truck had the following features relevant to this appeal:
- (a)a metal mesh cage on the back tray to contain rubbish;
- (b)a handle inside the driver's side of the cabin fixed to the right upright door frame; and
- (c)a grid step with ridges below floor level on the driver's side of the cabin outside the door (shown in photographs in Exhibit 1).
- Mr Guymer alleges that, in the course of depositing the rubbish at Stapylton tip, he injured his right knee when getting into the truck.
- Mr Guymer (who worked a nine day fortnight at that time) had a rostered day off work on Friday 26 July 2013, and did not work on the following weekend. He did not go to work on 29 or 30 July 2011, but arranged for messages about his absence to be sent to his supervisor.
- He returned to work on Wednesday 31 July 2013 and notified his supervisor, David Brudenell, of the alleged injury and incident. On 1 August 2013:
- (a)a Work injury/incident report which Mr Guymer had completed was signed by Mr Brudenell (Exhibit 10); and
- (b)an Incident Investigation Guide report was completed by Mr Brudenell and signed by Mr Guymer (Exhibit 11).
Those documents included accounts of the alleged incident on 25 July 2013.
- On 5 September 2013, Mr Guymer filed an Application for compensation dated 3 September 2013, alleging that he sustained a personal injury of a physical nature to his right knee at 12.40 pm on 25 July 2013. The Appellant's insurer rejected the application on 19 December 2013.
- On 28 January 2014, Mr Guymer lodged an application for review with the Respondent. In its decision of 4 March 2014, sent to Mr Guymer in a letter dated 10 March 2014, the Respondent set aside the decision of the Appellant and substituted its decision to accept the application in accordance with s 32 of the Act. It is against that decision that the appeal is made.
- This appeal is to be resolved by reference to s 32 of the Act which, at the time of Mr Guymer 's injury relevantly provided:
- (1)An injury is a 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-
- (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 other than a psychiatric or psychological disorder;
(ii) a disease;
- (4)For subsection (3)(b) and (ba), 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."
- In this case, the Appellant is Mr Guymer's employer. Mr Guymer has been awarded compensation and the appeal is against the decision of the Respondent. Mr Guymer is not a party to the appeal.
- Although the appeal is against the decision of the Respondent, the proceeding is not an appeal as such. Rather, it is by way of a hearing de novo. The Commission decides the outcome of the appeal by reference to evidence before the Commission, and the case argued in the proceedings, not by reference to the reasons for decision of the Respondent on the material to which the Respondent or the insurer had regard in making their decisions.
- Detailed submissions were made in relation to the onus of proof, but the parties agreed that the Appellant bears the onus of proof. That means, in a case such as this, that the employer bears the onus of proof. The Respondent does not bear the onus of defending its decision, and the injured worker (who is not a party to the proceeding) does not bear the onus of defending the award of compensation. I have proceeded on that basis and simply note that among the authorities quoted or cited in written submissions were decisions in support of the proposition just summarised.
- The standard of proof upon which this appeal is to be determined is on the balance of probabilities. The Appellant does not have to prove certainty, and "more probable" means no more than that, on the balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood. However, that standard is not met by evidence which fails to do more than establish a possibility. There must be objective facts to enable the inference to be drawn, beyond mere speculation or conjecture, which requires a court to reach a level of actual persuasion.
- The Appellant concedes that Mr Guymer is a "worker" and that he suffered an injury to his right knee. The medical evidence is considered later, but the Appellant does not dispute the clinical findings of the doctors as to the existence of a lateral meniscus tear, and does not dispute their evidence that the usual mechanism of injury giving rise to a lateral meniscus tear is some twisting motion of the leg.
- The matters in issue are:
- (a)whether the injury arose out of, or in the course of, Mr Guymer's employment; and
- (b)whether Mr Guymer's employment was a significant contributing factor to the injury.
- For the appeal to succeed, the Appellant must satisfy the Commission that:
- (a)Mr Guymer's injury did not arise out of, or in the course of, his employment; or
- (b)his employment was not a significant contributing factor to the injury.
- Having regard to the way in which the parties presented their cases, the issues in this appeal are appropriately dealt with by considering:
- (a)relevant aspects of workplace practice;
- (b)the evidence in relation to the alleged incident on 25 July 2013;
- (c)the evidence in relation to Mr Guymer's appearance, demeanour and actions immediately before, during and after a meeting between him and his managers at the Beenleigh depot later on 25 July 2013; and
- (d)the medical evidence.
- In July 2013, David Brudenell was the leading hand at the Beenleigh depot. The City Cleaning team was small (comprising usually two litter pick up labourers, one road sweeper driver, and one barbecue and toilet cleaner). Casual workers were employed to assist with the day-to-day running of the operations when other staff were on holidays.
- Three points of contact method of entering trucks: Mr Brudenell described the method adopted for gaining entry to vehicles such as the truck used by Mr Guymer. In particular, he said that a driver would:
- (a)grab the handle on the inside of the door frame with one hand, and grab another rail on the side of the truck or the steering wheel with the other hand;
- (b)place one foot on the step at the side of the vehicle and pull himself up to the cabin; and
- (c)pivot himself onto the seat within the cabin.
This was described as the three points of contact method.
- Every time the Appellant acquires a new vehicle, Council staff receive training about how to get in and out of it. However, Mr Brudenell acknowledged that people adopt their own style and the "fit and nimble" people just jump into the truck.
- Workplace footwear: Employees wore footwear provided by the Appellant. Mr Guymer's shoes had white leather uppers, laces and a patterned sole. The shoes were reasonably new (some three to six months old) at the time of the alleged incident (Exhibit 14).
- Reporting of injuries and incidents: There was indirect and direct evidence that:
- (a)Mr Guymer was aware of the workplace requirements to report injuries and incidents; and
- (b)Mr Guymer was familiar with the workers' compensation claim process.
- In relation to the first aspect:
- (a)Mr Brudenell referred to toolbox meetings held every six weeks at which workplace health and safety issues were raised. The staff were told that they must report incidents (whether or not anyone else was involved). An incident report book was maintained;
- (b)Stephen Bender, a City Cleaning supervisor, referred to toolbox meetings (where staff were informed of their obligations to report incidents or injuries) and to notices on notice boards and the intranet; and
- (c)Mr Brudenell said that Mr Guymer would report "everything", including any minor fault with the truck.
- As to the second aspect, a worker claim history report dated 28 January 2014 (Exhibit 2) recorded four previous applications by Mr Guymer for compensation dated 15 February 2006, 15 March 2011, 27 April 2012 and 28 August 2012.
- Mr Guymer gave evidence that he:
- (a)was aware of the obligation on council employees to report injuries and incidents on a timely basis; and
- (b)made previous claims for workers' compensation benefits from the Appellant, and reported the injuries shortly after they occurred.
He agreed that he is quite diligent about reporting problems with vehicles or equipment.
- However, when Jason Munro (the AWU delegate as City Cleaning representative who worked as a cleaner out of the Southport depot) was asked in cross-examination whether Mr Guymer would "fairly religiously report" to him incidents or injuries that he sustained, Mr Munro said that generally Mr Guymer's father, Mark Guymer ("Mr Guymer Snr"), rather than Mr Guymer, would contact him. There were entries on Leave Action Sheets that Mr Guymer Snr had "phoned" or "called" at 5.45 on 22 and 23 July 2013 to advise that Mr Guymer was taking sick leave on those days (Exhibits 26 and 27). That was consistent with Mr Guymer's practice (considered later in these reasons for decision) of arranging for his father to call on days when Mr Guymer was unwell to attend work.
The alleged incident on 25 July 2013
- There is clear evidence, and no dispute, that Mr Guymer was allocated truck 5000311 on 25 July 2013 (Exhibit 6) and a Litter Pick Up Checklist for the Beenleigh Run which he completed and signed that day (Exhibit 7).
- Mr Guymer gave oral evidence in relation to the work he undertook that day and the way in which his alleged injury occurred. According to Mr Guymer, he was working with Scott Gatto, a casual employee who had been working for the Appellant for a few days, and who had worked with Mr Guymer previously on two or three occasions. Their interactions were "very minimal" and they would not converse. Mr Guymer drove the truck to places where they were to collect litter. They would walk in opposite directions to collect litter before returning to the truck and driving together to the next location.
- Having collected the litter in accordance with the assigned run, Mr Guymer drove to the Stapylton tip and reversed the truck to the dumping point. He and Mr Gatto got out of the truck, unlocked the latches on the cage, unlocked the tailgate at the back of the truck and pinned the hinged tailgate into position on the passenger's side. Mr Guymer then entered the truck cabin, used the tipper and drove the vehicle forward and looked at Mr Gatto to see if all the rubbish had been removed from the cage. He then lowered the cage and followed the steps to lock things into position.
- Mr Guymer described his normal way of entering the truck cabin before 25 July 2013 by reference to the three points of contact:
- (a)grabbing the handle on the door frame with his right hand and using his left hand on the steering wheel;
- (b)putting his right foot on the step; and
- (c)hopping into the cabin and turning or pivoting (using a "swinging sort of motion") into the seat.
- Mr Guymer's evidence was that he injured himself after he and Mr Gatto had unlocked the cage and when he "hopped back into the vehicle to lift the tipper up." He said (questions omitted):
"As I entered the vehicle to use the tipper … I've done the three points of contact. … As I've gone to pivot into the vehicle, my foot stuck on the step and it's actually - when I've moved my body onto the seat … It's caused my knee to lock out. … It made a clunking noise and such where my foot didn't sort of twist on the step. … And it just sort of made a clunk, like, a dislocated noise where excruciating pain straight away. … It was in a locked position." (T/S2: 25-26)
- Mr Guymer described the noise and subsequent actions as follows (questions omitted):
"Well, with a dislocation sometimes you can hear the clicking, the noise of the bones, yeah. … Yeah, clicking, clunking. It's -it's a noise that didn't sound right at the time. … My knee was in a locked position. … I couldn't straighten it back out until I was - removed my body outside the cab so my leg could stretch out straight. … I've hopped into the truck and my bum is on the actual driver's seat … My knee's still like this in a locked position. … So I've twisted back out the door … So my leg was actually outside the door whilst sitting in the driver's seat. … So I could actually put my knee back out straight. … In hope that it'd go back into position. … And which it did … after about three or four times of movement. … I was stretching it out. I continued to - with the tipper up." (T/S2:26-27)
- Mr Guymer volunteered, in relation to Mr Gatto, that while he was stretching his right leg:
"… I couldn't see where Scott was in the back left mirror. … He'd moved from where he originally was when I first hurt my knee getting into it. …" (T/S2: 27)
- According to Mr Guymer, he moved himself back into the truck while rubbing the knee. He used the tipper device and drove the truck forward, and:
"I've then hopped out of the vehicle. … And gone around to see if he was still there, if the rubbish has gone. Okay. And walked back around to the truck. As I'm walking I'm still sort of stretching my leg back and forward. … And then I've hopped back into the vehicle and we've - after we've done the locking procedures again drive back to the depot." (T/S2: 27)
- Mr Guymer said that when the injury first happened the pain was "excruciating" and that the flexing of the leg "made the pain decrease … because it was back in its position." When he walked from the cab to the back of the tray he "could feel that it had eased the pain" so that he was able to drive back to the Beenleigh depot.
- In cross-examination, Mr Guymer was given the opportunity to confirm that chronology of events. The transcript of that part of the cross-examination records:
"And then you say that you've gone to get back up into the vehicle to operate the tipping mechanism? --- Yes.
And it's in the course of you getting back into the vehicle at that stage that you sustain the injury? --- Yes.
You sure about that? --- I'm positive.
You're absolutely crystal clear about that? --- Yes.
All right. And you say that the mechanism of injury at that time - and just so we can be clear, where was Mr Gatto, do you say, at that stage? --- He was standing to the left back of the truck.
To the left back of the truck on the passenger side, was he? --- Yeah.
You're sure about that? --- Yes.
Just as sure - you're just as sure about that fact as what you are that the injuries occurred at the time when you've gone back into the truck to operate the tipping mechanism? --- Yes.
You're absolutely crystal clear about that? --- Yeah.
Okay. And you say that you've adopted the normal process for entering the vehicle, that you place your right foot on the step? --- Yes.
It's not a very high step, is it, for that vehicle? --- Not for - no.
You placed your right hand on the grab handle? --- Yes
You place your left hand on the steering wheel? --- Yes
That's to help you pull yourself into the vehicle; correct? --- Correct.
This is something that you've done hundreds of times before?--- Yes.
Correct. With that vehicle? --- Yes.
How many times would you get in and out of the vehicle in the course of a normal shift? --- Up to 15 to 20 times a day.
15 to 20 times a day. And on no other occasion has your foot ever stuck - gripped? --- No.
That's correct? --- Correct.
I just want to be clear because you say that you step up with your right foot? --- Yes.
And you got hold. So your natural motion would be to be lifting your leg to place at least part of your posterior on the seat; correct? --- Correct.
And then you would slide over and pull yourself over, correct? --- Correct
All right. Well, how do you say that your leg didn't move, or moved to cause this lateral strain? --- How - how am I to say that my leg didn't move? It was stuck on the step. My foot in the step position. My foot is down. I've got my weight on it and, as I've pulled myself across, it's stuck in the step.
And excruciating pain? --- Yes.
You must have yelled out? --- No.
There must have been an exclamation of pain by you. It's excruciating pain that you experience at that moment? --- Yes.
And you said nothing, made no exclamation of pain, didn't go, "Oh"? --- No.
And you're in excruciating pain? --- Yes.
You sure about that as well? --- Yes. I am sure.
Crystal clear? --- Yep." (T/S2: 109-110)
- Mr Guymer confirmed that at the time he sustained his injury the rubbish had not been removed from the truck, he had not driven the truck forward or got out of the truck to do up the tailgate and the cage. He did all those things after he sustained the injury.
- Although he was travelling to the depot with Mr Gatto, Mr Guymer did not mention that this event had occurred because he did not "have much contact with him, interaction" and "didn't feel that it was necessary to talk to him."
- Mr Gatto's evidence was consistent with aspects of My Guymer's account. He obtained casual employment with Gold Coast City Cleaning at the Beenleigh depot on seven days in July 2013. He worked primarily with Mr Guymer (and on occasions with his supervisor Dave Brudenell) from 5.00 am until 1.52 pm collecting litter. The two men would walk in opposite directions when collecting rubbish and had limited opportunities to speak with each other apart from when they were in the truck together. Indeed, Mr Gatto gave evidence that he found the work mind numbing and spent much of his time worried about what his next step would be as this was not work that he was supposed to be doing through his employment agency. The final task each day was to attend the Stapylton tip to dump the rubbish. On 25 July 2013, the last day he worked with Mr Guymer, they deposited rubbish at the tip. Mr Gatto described the usual practice and said that he took no notice of what Mr Guymer was doing.
- Mr Gatto gave evidence that he did not observe Mr Guymer sustain any injury (including any injury to his right leg) and that Mr Guymer did not tell Mr Gatto that he had sustained a right leg injury. Nor did Mr Gatto observe that Mr Guymer was in pain or showing signs of distress from some sort of injury, or limping or showing some other altered walking gait.
The attendance meeting on 25 July 2013
- Mr Guymer drove back to the Beeleigh depot before 1.00 pm to attend a scheduled meeting with his immediate supervisor and other management personnel. The meeting was one of a series of meetings in relation to aspects of his employment.
- Purpose of the meeting: Mr Brudenell supervised Mr Guymer at the Beenleigh depot and described Mr Guymer's attendance as "atrocious" and his work ethic as "spasmodic." He said that Mr Guymer was to do a shorter shift on 25 July 2013 because he was scheduled to attend a meeting at 1.00 pm to discuss his attendance at work at the Beenleigh depot.
- Paul McCarthy (the Coordinator for City Cleaning), Sue Hockey (from People and Culture), Stephen Bender (Mr Brudenell's supervisor) and Mr Brudenell attended the meeting. Mr Guymer had asked that Mr Munro (the AWU delegate as City Cleaning representative) be present. Mr Munro had known Mr Guymer and his father for some years through work, but had no social interaction with Mr Guymer outside work. He had attended some meetings with Mr Guymer to ensure they were conducted properly.
- Mr Bender, who had worked with Mr Guymer for over 12 years primarily as his leading hand, gave evidence that for "a lot of years" Mr Guymer's attendance was quite good and his work ethics were good. At some point, there were issues about his work performance and his sick leave, but Mr Bender understood that those matters might have been linked to Mr Guymer's psychiatric injury which arose from an event in the workplace. In other words, his work performance dropped off at the time he was absent because of his psychiatric injury.
- Mr Guymer said that he had not been told what the meeting was to be about. However, he understood that the purpose of the meeting was with regard to the sickness monitoring program and to discuss "too much sick leave" taken by him, "too many days off work and in regards to the phone calls."
- Mr Munro understood that the meeting would be a disciplinary meeting in relation to Mr Guymer not turning up at work and failing to ring his ganger or supervisor.
- Conversation with Mr Munro before the meeting: Mr Guymer arranged to meet Mr Munro before the meeting, and did so when he returned from Stapylton tip at about 12.55 pm. In his oral evidence, Mr Guymer said that Mr Munro asked how he was going, and he told Mr Munro that his knees were sore from the assessment of the previous week, that he had just hurt his knee as he entered the truck and that the knee "locked out." He said that Mr Munro was aware that a week earlier Mr Guymer had a permanent impairment assessment done in relation to his left knee. The men had not had an opportunity previously to discuss that medical assessment. Mr Guymer recalled that Mr Munro was taking notes in his notebook which was supported by the back of his ute.
- Mr Munro recalled arriving at the depot before Mr Guymer and writing in his diary who would be attending the meeting. He did not observe Mr Guymer getting out of the truck or walking to him. He discussed the purpose of the meeting with Mr Guymer, and noted that Mr Guymer was "very shaky" before the meeting, as he had been at board meetings. He also noticed that Mr Guymer was "standing a bit funny… Just like he was in pain," and holding his right thigh. Mr Munro asked Mr Guymer if his back was hurting, and Mr Guymer replied "No, I meant to see you about that, but I have to get you to write it down. I have injured my knee getting into the truck" that morning. Mr Munro wrote in his diary, leaning against the ute, "Steve injured knee getting into truck." (Exhibit 15) According to Mr Munro, Mr Guymer told him that he was getting into the truck and knocked his knee. Mr Munro did not question him about the extent of the injury or the amount of pain he experienced. Mr Munro had no concerns that, as a consequence of this injury, Mr Guymer might not have been fit to proceed with the meeting.
- Mr Munro recalled what "would have been" the conversation including what the meeting was about, and letting Mr Guymer know that there wasn't much that the union could do as Mr Guymer had not been turning up at work and was not ringing. Mr Munro recalled telling Mr Guymer that he had to either come in to work or ring up and notify the bosses. Mr Munro also gave evidence that he did not know that Mr Guymer had been sent to have a permanent impairment medical assessment for his left knee on about 18 July 2013. Mr Guymer had not told him about that. Nor did Mr Guymer tell him that he sustained pain in both knees from the medical assessment a week earlier.
- About 1.00 pm, Mr Bender came out of the building to say that the meeting was waiting to commence. Mr Guymer and Mr Munro then attended the meeting in an office with Mr Bender, Mr McCarthy, Ms Hockey and Mr Brudenell. Mr Guymer said that he was not limping as he walked into the meeting, but was walking normally without any sign of injury. Mr Munro said that he did not really look at the way Mr Guymer was walking, but nothing unusual came to his attention.
- Conduct and content of the meeting: According to Mr Guymer, he was "anxious" and "very stressed" going into the meeting, which was one of a series of meetings over a period of approximately two years. They discussed Mr Guymer making phone calls if he was not going to attend work, rather than sending text messages to his father, Mark Guymer ("Mr Guymer Snr"), who would call on his behalf. The coordinator wanted to know about Mr Guymer Snr contacting other staff members to see whether Mr Guymer had been at work, and suggested that Mr Guymer had been having too many days off work without doctor's certificates. Mr Guymer said that he replied that he had doctor's certificates for all the days off, which had been handed to them. He said that there were reviews every two months and he kept saying that his absence was due to workplace stress, and his employer was not "doing the right policies and procedures." Mr Guymer got angry with those present (other than Mr Munro) and raised his voice. He stood up at least once during the meeting and pointed finger aggressively at Mr McCarthy. Mr Guymer said the meeting ended abruptly with him standing up, and Mr Bender asking Mr Munro to take him outside to calm down. Mr Guymer was "very upset" because he felt the others were "setting their own rules" rather than following policies, and they had told him that he was indefinitely off overtime and would need to have a doctor's certificate for every day off.
- According to Mr Brudenell, the meeting went for about 45 to 50 minutes and the topic was Mr Guymer's attendance and how he had to show up for work or ring up, and not have his father ring up on his behalf. To the same effect, Mr Bender's evidence was that the meeting was a review of Mr Guymer's sick leave (including why he had not supplied doctor's certificates and why he was off work for a length of time) and went for about 45 minutes to one hour. Before the meeting, Mr Bender was provided with information about Mr Guymer's attendance and sick leave record (Exhibit 13).
- Mr Brudenell said that the meeting became "slightly heated" when Mr Guymer accused Mr McCarthy of some issue. Mr Bender and Mr Guymer walked outside of the office and conversed for about five to 10 minutes while they had a cigarette.
- According to Mr Bender, Mr Guymer had been quite agitated during the meeting and the meeting was cut short because "it got quite heated" between Mr McCarthy and Mr Guymer. He agreed that one of the causes of Mr Guymer's agitation was that he said he had put in medical certificates in the past but the Appellant did not have records of those certificates. If the Appellant could find those certificates, they would reinstate sick leave that Mr Guymer had taken or applied for where certificates had not been provided.
- Mr Munro described his recollection of the meeting, as "probably fifty-fifty maybe." According to him, the meeting went for 10 to 15 minutes, dealt with management's unhappiness with Mr Guymer's non-attendance at work and failure to ring up, and came to a "full conclusion." His diary notes, written during the meeting (Exhibit 15) indicate that the discussion included, but was not limited to:
- (a)Mr Guymer not ringing up when sick;
- (b)Mr Guymer being taken off overtime because he was not showing up as sick;
- (c)he has workers' compensation certificate for days off;
- (d)the situation will continue to be managed and there needs to be improvement;
- (e)send text to David as well as Mr Guymer Snr to ring through;
- (f)any days off in future must have medical certificate;
- (g)see doctor about filling out medical certificate properly;
- (h)get print out of father's phone account for when he rang up to say that Mr Guymer was sick;
- (i)follow-up meeting in two months.
- Mr Guymer confirmed that, during the course of the meeting, he did not report to anyone that he had injured his leg a short time previously. He explained that he did not make that report because the "stress and everything going on with the meeting" was going through his mind more than his knee injury, and he did not realise how bad his knee was until he sought medical help subsequently.
- Conversations after the meeting: Immediately after the meeting, Mr Guymer met with Mr Munro outside. According to Mr Guymer, they discussed what had occurred during the meeting (but not his right knee). By Mr Munro's account, however, he showed Mr Guymer his diary notes of the meeting, went through the notes with him, and asked him if there was anything else that he wanted included or corrected. Mr Guymer then pointed out that Mr Munro had not written down about his right knee, and Mr Munro made a correction to his diary by inserting "right" before "knee" in the sentence "Steve injured knee getting into truck." Mr Munro added a couple of items at the end of Mr Guymer's request.
- According to Mr Guymer, after a few minutes, Mr Bender joined them and tried to calm Mr Guymer. He said that Mr Guymer needed to turn up to work more often. After that discussion, they left the Beenleigh depot.
- Mr Munro also recalled Mr Bender joining them after a few minutes and discussing work-related things and trying to reassure Mr Guymer that "it was all right, they weren't out to hang him or anything like that… so to speak." Mr Bender gave evidence to the same effect.
- Mr Bender also gave evidence initially that, during the conversation after the meeting, Mr Guymer threatened him on the basis that if he was not going to win this case against the council he would be after Mr Bender and Mr McCarthy, i.e. would sue them. According to Mr Bender, Mr Guymer had said something of a similar nature about six months previously in the presence of the acting leading hand at that time. On that occasion, Mr Guymer apologised for making the comment and they shook hands.
- Mr Guymer acknowledged that he did not like the City Cleaning management, but denied threatening to sue them personally if he was unable to obtain money in relation to the claims he had made. In particular, he denied (or did not recall) threatening Mr Bender on 25 July 2013, although he agreed that he made a threat to Mr Bender on a previous occasion. Mr Munro did not hear Mr Guymer make any threat to Mr Bender about him owning property and potentially bringing any proceedings against him. However, Mr Munro said that he might have walked away briefly at some stage. In cross-examination, Mr Bender appeared to concede that the alleged threat was not made to him on 25 July 2013.
- Mr Munro left straight after the conversation between the three men broke up as he had to return to work. He recalled that Mr Guymer had to go to a doctor's appointment.
- Mr Munro explained that he did not report Mr Guymer's injury as that should have been reported to management before it was reported to him. Mr Guymer did not tell Mr Munro that he had told the gangers or supervisor about the injury.
- Observations about Mr Guymer's physical condition before during and after the meeting: Mr Brudenell gave evidence that:
- (a)before the meeting commenced, Mr Guymer did not report to him that he had recently sustained an injury, and Mr Brudenell did not observe any limping, altered gait, or signs of Mr Guymer having sustained a right leg injury, nor did he observe Mr Guymer showing any signs of pain or physical distress;
- (b)during the course of the meeting, Mr Guymer did not report sustaining injury or show any signs of pain or physical distress;
- (c)Mr Munro did not report or mention to him that Mr Guymer had sustained a leg injury just before the meeting; and
- (d)after the meeting, Mr Guymer did not report an injury to him, nor did he show any physical signs (in terms of limping or an altered gait) of there being a right leg injury, or any signs of being in pain or distress.
- Mr Bender said that he saw Mr Guymer before the meeting commenced and did not observe any physical signs (e.g., a limp or altered gait) to indicate that Mr Guymer had an injury to his right leg. Mr Guymer did not appear to be in physical distress or pain. Mr Bender agreed however that he did not have any opportunity to speak with Mr Guymer before the meeting or to really observe how he was standing or walking. During the meeting, he observed no signs of Mr Guymer having sustained an injury and, during the meeting, Mr Guymer did not report having sustained such an injury. Nor did Mr Munro mention that Mr Guymer had sustained a leg injury shortly before the meeting. After the meeting, Mr Bender met with Mr Guymer for five to 10 minutes. They stood in close proximity to each other and, during that conversation, Mr Guymer did not report having sustained a right leg injury that day before the meeting. His demeanour and way of standing gave no indication of him having a right leg injury or being in pain or physical distress. However, Mr Bender recalled that, after the meeting, Mr Guymer was shaking and his hands were shaking.
- Those observations are consistent with Mr Guymer's oral evidence summarised earlier.
Actions by Mr Guymer in the four days following the alleged injury
- Mr Guymer said that the pain in relation to the injury was immediate and continued through the Thursday afternoon, including during and after the meeting and when he went home. The swelling started to appear after he had a shower that evening and continued into the Friday.
- Mr Guymer had a scheduled rostered day off work on Friday, 26 July 2013. He gave oral evidence that he felt pain in his right knee and, after picking up his son from school at 3.00 pm, he went to the surgery of his regular GP, Dr Marianne Botha, to request an appointment. Although he waited until 5.00 pm he was unable to see the doctor and was advised by the receptionist that he should try again on Monday. Mr Guymer explained that he did not report the pain in his right knee to any of his bosses that day as it was his day off and he did not feel he needed to advise them. He was in not going to do anything until he found out from the doctor what was wrong with his knee.
- Mr Guymer Snr gave evidence that he and Mr Guymer spoke by telephone about the meeting on 25 July 2013 (either on that or the following day), and spoke about it in person at about midday on Saturday 27 July 2013 when Mr Guymer and his children visited him. On that occasion, Mr Guymer explained to his father how his right knee locked up getting into the truck. He was in pain. At that stage, they did not realise how serious the injury was. Mr Guymer Snr advised his son to see a doctor "if it gets worse" and to make sure he reported it when he returned to work. Mr Guymer Snr said he assumed that Mr Guymer would be at work on Monday as scheduled.
- Mr Guymer Snr said that although he had Mr Brudenell's mobile phone number, there would have been no point ringing him on the weekend as the phone would not have been answered, at least after 9.00 am on Saturday.
- Consistently with Mr Guymer Snr's account, Mr Guymer gave evidence that he visited his father on 27 July 2013 and discussed the meeting on the previous Thursday. Mr Guymer told his father that he had hurt his knee. They discussed why Mr Guymer had not seen his GP at that stage.
- Mr Guymer agreed that there was nothing to stop him seeking treatment from a hospital on that weekend, but he waited to see his doctor.
- Although Mr Guymer was due to return to work on Monday, 29 July 2013, he still had a pain in his knee and he sent a text to his father to let him know that would not be at work. The message was to the effect "hey, won't be going to work today." He expected that his father would call leading hand David Brudenell on his behalf and let him know that Mr Guymer would not be at work that day. According to Mr Guymer, he took that approach because he had poor telephone reception at Upper Coomera. However, he was able to send a text message.
- Mr Guymer Snr explained that practice in more detail. He gave evidence that, as at 25 July 2013, My Guymer was living "off and on at home" but "mainly at home" with Mr Guymer Snr. Mr Guymer was separated from his partner but might stay overnight with her at Upper Coomera when visiting his children, and would stay with friends at different times, including on weekends. Mr Guymer Snr explained that he had an arrangement with Mr Guymer about notifying his employer on days that his son would not be going to work. When Mr Guymer was staying at Upper Coomera the telephone reception was poor and he would not be able to contact his boss by telephone. Text messages were not always getting through. Mr Guymer would send a text message to Mr Guymer Snr who would phone Mr Brudenell directly.
- More specifically, Mr Guymer Snr gave evidence that on Monday 29 July 2013 and Tuesday 30 July 2013, in response to text messages from his son, he contacted Mr Brudenell by telephone to say that Mr Guymer was not going to work on those days. Consistently with his normal practice, Mr Guymer Snr did not give a reason for Mr Guymer's absence, preferring to let Mr Guymer tell the ganger directly what was wrong when he returned to work. Mr Guymer Snr said that he "assumed his knee had gotten worse … I could only assume that."
- I note the Appellant's submission that Mr Guymer Snr is a partisan witness and that his evidence should be treated with a great degree of caution. Although there is evidence to support that submission, the evidence about the manner of communication of messages from son to father and to supervisor is both consistent with previous practice and corroborated by some diary notes. I am content to rely on it.
- Mr Guymer said that on 29 July 2013, after collecting his son from school, he went to the doctor's surgery. He did not have an appointment and after waiting was told he would be unable to see the doctor but that he could try again the following day. He did that on Tuesday, 30 July 2013, but at approximately 4.30 pm he said to the receptionist that he really needed to see a doctor. He asked whether, if his GP was unable to see him that day, he could attend the sister practice at Parkwood Medical. Mr Guymer went there and saw Dr Linnett. He said that he told Dr Linnett about hurting his knee at work on the previous Thursday and that in the week previously (on 18 July 2013) he had had an examination of both knees in relation to a past injury to his left knee for the purpose of an assessment of impairment to his left knee. Mr Guymer told Dr Linnett that both his knees were sore from that examination and he was not sure if that had anything to do with the injury occurring when he hopped into the truck. Mr Guymer said that there was no similarity between the pain he experienced on 18 July (when, in his words, it felt like his knee "was put in places like it shouldn't have been" with hyperreflexias and stretching of the muscles) and the pain he experienced on 25 July 2013 (which was "instant and excruciating" and when he felt and heard the "clunk" and his knee was locked). Dr Linnett gave him anti-inflammatory medication and a referral for an x-ray, and they discussed a workers' compensation certificate that his other doctor might have been preparing in relation to his left knee.
- The limited amount of communication between Mr Guymer and Mr Brudenell, and the nature of the communication was confirmed by Mr Brudenell. He gave evidence that, although Mr Guymer had his mobile phone number and had previously sent him a text message or telephone call on that phone to report he was not going to be at work, Mr Brudenell received no such message from Mr Guymer on Friday 26 July 2013 (Mr Guymer's rostered day off), or 27 or 28 July 2013. Mr Guymer was scheduled to return to work on Monday, 29 July 2013. He did not arrive. However, Mr Guymer Snr sent a message stating that Mr Guymer was not coming in because he was sick. There was no mention of Mr Guymer sustaining a leg injury on the previous Thursday (Exhibit 8). Mr Guymer did not go to work on 30 July 2013, and Mr Guymer Snr advised that Mr Guymer was going to be away sick that day. Again, it appears that there was no mention of a work related injury on the previous Thursday (Exhibit 9).
- Mr Guymer explained that:
- (a)he did not report his injury to Mr Brudenell before, during or after the meeting on 25 July 2013 because, with the meeting occurring, it was not on his mind to report the injury and, as he had not seen a doctor, he did not know the extent of the injury;
- (b)he did not attempt to send a text message to Mr Brudenell over the weekend because he was aware after the meeting on the previous Thursday that he was not to contact his employer via text message but was required to make contact by telephone;
- (c)he was unable to call on Monday from his ex-partner's premises. He did not call from the doctor's surgery because his consultation was after 3.30 pm when the shift had finished. In any case, he was "still annoyed" about the meeting that took place the previous Thursday and he had not seen the doctor to ascertain the extent of damage to his knee; and
- (d)he reported the injury as soon as he returned to work on the Wednesday morning and provided the version of events set out in Exhibit 10.
Reporting the injury
- Mr Guymer returned to work on Wednesday, 31 July 2013. He completed a Work injury/incident report and a Work injury/investigation report, each of which was signed by Mr Brudenell and dated 1 August 2013 (Exhibit 10). Mr Brudenell said that this was the first time that he was aware of Mr Guymer stating that he was sore from having injured himself on 25 July 2013. Mr Brudenell completed an Incident Investigation Guide, dated 1 August 2013 (Exhibit 11), with Mr Guymer sitting beside him and Mr Brudenell asking questions. That document was, in effect, treated as a draft and was subsequently copied by hand by Mr Brudenell and signed by him and by Mr Guymer (Exhibit 12).
- The Work injury/incident report (Exhibit 10) states that:
- (a)the incident and injury were "After emptying town truck getting back into vehicle Right foot got caught on the side step of truck, causing pressure on my knee making it popped out locking up. Causing Pain";
- (b)the incident occurred at Stapylton tip on 25 July 2013 at 12.45 pm;
- (c)Mr Guymer did not stop work after the incident;
- (d)Mr Guymer stopped work at 1.52 pm, and returned to work on 31 July 2013;
- (e)the incident was reported on 31 July 2013.
- In the Work injury/incident investigation report (Exhibit 10) Mr Brudenell recorded that the following entries were written by Mr Guymer:
- (a)the only factor identified that contributed to the incident was "Aggravation from assessment on the 20.7.2013;" and
- (b)action taken to eliminate or reduce the risk was "GP xray hopefully physio Anti inflametry (sic) tablets."
Application for compensation and subsequent investigation report
- In his Application for Compensation Form dated 3 September 2013 (Exhibit 32), Mr Guymer wrote that:
- (a)the nature of the injury was "strain/tear;"
- (b)the part of his body that was injured was "right knee, knee locked out of position;"
- (c)the injury was sustained at Stapylton tip on Thursday, 25 July 2013 at 12.40 pm as he was "entering the truck" when he was engaged in "tipping rubbish;"
- (d)the injury happened late in the shift;
- (e)he first noticed the symptoms "immediately;"
- (f)he ceased work at 2.00 pm on 25 July 2013;
- (g)he first received medical treatment from Dr Linnett on 30 July 2013; and
- (h)he reported the injury to Dave Brudenell on Wednesday, 31 July 2013 (the day he returned to work) at 4.45 am.
Mr Guymer also wrote "N/A" in the item for names, addresses, telephone details of witnesses.
- In a detailed written statement taken by an investigator on 25 September 2013, and signed by Mr Guymer (Exhibit 28), Mr Guymer recounted in some detail the circumstances in which his injury occurred. He explained that the document was prepared by the investigator from information provided by Mr Guymer in response to various questions. Although some of the words (e.g., "laterally") were not used by Mr Guymer, he understood some of those expressions "to some extent."
- In that document, Mr Guymer recorded that on 25 July 2013, he was rostered to operate the Town Truck litter run from 5.00 am until 1.52 pm. The run involved cleaning certain areas including physically picking up litter. He was working with a casual labour hire person whose name he did not know as that person only worked there for one week. They used an Isuzu Canter Euro 5 model truck. Mr Guymer was scheduled to attend a meeting at the depot at 1.00 pm. The meeting concerned a Return to Work Sickness Program on which he had been placed.
- Before returning to the depot, Mr Guymer drove the truck to the Stapylton tip to dump the litter collected during the morning. By his account:
"8.…I got out of the truck to manually open the tailgate and cage latches to release the rubbish. I then got back into the truck to operate the electric tipping mechanism to dump the rubbish into an allocated land fill. After the rubbish was emptied I then had to get of (sic) the truck and manually close the tailgate and lock the cage latches.
9.After I had closed the tailgate I returned to the driver side of the truck and commenced to enter the cabin. There is one step between the road and the cabin, so I placed my right foot on the step and took hold of the grab handle on the window pillar with my right hand utilizing the three point of contact for entry. As I put the weight on my right foot to move into the driver's seat my shoe gripped and didn't slide on the step as usual to align myself to allow me to enter the cabin. Normally what happens as you do this procedure your foot pivot (sic) on the step. At this point my left foot was no longer in contact with the ground as I was preparing for the next step and I felt immediate pain in the outside of my right knee as well a clunking sensation in my knee. It felt as if my right knee had snapped or popped out of place. I immediately grabbed my knee with my right hand for support. At this point my backside was half on the seat and I was holding part of my weight with my left arm on the steering wheel. I was able to wriggle onto the driver's seat. My knee was in a locked position with my leg bent at about 75% angle. To try and relief (sic) my knee I tried to straight (sic) my leg out of the cabin and as I was doing this I felt my knee click back into place. After it clicked into place I bent my leg backwards and forwards as it appeared to relieve the problem and was reassurance to myself that I could continue to drive the vehicle. My knee freed up sufficiently to drive back to the depot although I was still experiencing severe pain although the pain had eased from when I first did the injury."
Inconsistencies in Mr Guymer's versions of incident leading to injury
- The Appellant points to inconsistencies in the written and oral versions of the events provided by Mr Guymer, and submits that his oral account should not be accepted. In particular, the Appellant submits that:
- (a)Mr Guymer's oral version is different from written accounts given by him recorded in Exhibit 10 and Exhibit 28;
- (b)one would expect that Mr Guymer's recall and memory of events would be better in September 2013 than in January 2014; and
- (c)the version of events set out by Mr Guymer in oral evidence was not put to Mr Gatto in the course of cross examination (when, given the importance of this evidence, there was a clear obligation to do so) and hence, having regard to relevant authorities, the evidence led should be put aside and not given any weight by the Commission.
- In relation to the third part of that submission, I note that when cross-examining Mr Gatto, counsel for the Respondent described the steps in the process followed at the tip, including Mr Guymer getting into the truck to drive it forward and tipping out the rubbish while Mr Gatto remained outside the truck. Mr Gatto gave evidence to the effect that he was not taking much notice of what Mr Guymer was doing (indeed "None at all"). He agreed that he did not see Mr Guymer when he hopped into the truck, and that he did not take any notice what time passed between when Mr Guymer hopped into the truck and when he drove out with the tailgate lifted or anything like that. In broad terms, the questions asked of Mr Gatto could be understood to comprehend either or both versions of how Mr Guymer sustained the injury. That cross-examination should also be considered in light of the relatively brief examination-in-chief when Mr Gatto confirmed that he did not observe Mr Guymer sustain an injury (in particular a right leg injury), that he did not observe Mr Guymer to be in pain or showing signs of distress from some sort of injury, and that Mr Guymer did not report to him that he had sustained a right leg injury. Consequently, there is no basis for putting aside or giving no weight to Mr Guymer's oral version of the incident giving rise to his injury.
- Mr Guymer was asked to explain the inconsistencies between his accounts of the incidents. When he was shown the description of the incident in the Work injury/incident report (Exhibit 10), Mr Guymer stated that there was insufficient room on the document to write the whole step-by-step procedure. He maintained, however, that the written version was consistent with his oral evidence.
- In the course of cross-examination, Mr Guymer was referred to paragraphs 8 and 9 of Exhibit 28, a document which he agreed that he had read to ensure that it was correct before signing each page. He was asked whether that version or his oral evidence to the Commission was correct. He replied:
"Previously, like I've stated, with my mental health condition - under a lot of stress - it was a bit hard to be specific when this incident occurred over a year ago. This statement was done one month after. What I'm trying to recall is when I entered the vehicle, I reversed the truck back. I was on my side. I injured my knee getting back into the vehicle to use the tipper."
- The questioning continued:
"So you're still maintaining the version that you got back - you injured your knee at the time you got back into the truck ---? --- To use the tipper.
--- Prior to using the tipper? --- Yes.
And I put it to you, Mr Guymer, that you're utilising or you're relying upon that version because you want to place Mr Gatto as far away as possible, don't you? --- No. Because that's where he should be standing because when I sit back in the vehicle I can see him in the driver's side mirror and he is going to allocate me where - if the vehicle has emptied or not." (T/S 2:113)
- The Appellant points out that, according to the accounts in Exhibits 10 and 28, the alleged injury occurred after the rubbish had been emptied and apparently at a time when Mr Guymer was getting into the vehicle to drive away (not before the tipping of the rubbish). The difficulty this causes Mr Guymer, the Appellant submits, is that Mr Gatto would have been either in the cabin of the truck or getting into the cabin himself at the time that the injury occurred.
- Mr Guymer agreed that, if the account in Exhibit 28 is correct, Mr Gatto would either have been on the passenger's seat or getting into the truck at the same time as Mr Guymer was getting into the truck and experiencing the painful injury. However, his oral evidence was that Mr Gatto was "still at the back of the vehicle" rather than in the truck when the incident occurred.
- The Appellant submits that the Commission is entitled to draw the inference that Mr Guymer has deliberately chosen to change his version of events to try to ensure that Mr Gatto was in such a position that he could not have seen the event.
- The Appellant also submits that, if Mr Guymer experienced what he described as "excruciating pain" or "severe pain" (Exhibit 28) at the time of the alleged injury, it is implausible that:
- (a)he would have not made any comment or exclamation or cry of pain;
- (b)Mr Gatto would not have observed the event and, in particular, observed Mr Guymer's right leg in a locked position such that he had to stick it out of the cabin of the truck to straighten it; and
- (c)Mr Gatto would not have observed Mr Guymer being in pain or otherwise have been informed by Mr Guymer that he hurt himself.
This is particularly so in circumstances where Mr Guymer states he was the driver of the truck and considered the incident to be significant enough to warrant mentioning it to Mr Munro before attending a meeting on 25 July 2013.
The medical evidence
- Expert medical evidence about the nature and possible cause of the injury was given by:
- (a)Dr Jon Linnett, a general practitioner who first saw Mr Guymer on 30 July 2013;
- (b)Dr Christopher Vertullo, an orthopaedic surgeon who specialises in surgery of the knee, who examined Mr Guymer on referral by Dr Linnett on 10 October 2013 (Exhibit 23). Dr Vertullo sent his report to Dr Linnett and to the Appellant on 15 November 2013 (Exhibit 33); and
- (c)Dr Andrew Patten, an orthopaedic surgeon who undertook an examination of Mr Guymer at the request of the Appellant and who prepared a written medico-legal report dated 3 December 2013 (Exhibit 16).
- The question of whether a worker has sustained an injury arising out of, or in the course of, employment and whether employment is a significant contributing factor to the injury is a question of mixed law and fact. It is a matter for the Commission to decide on the basis of evidence. In reaching that determination, emphasis is ordinarily placed on the opinions of medical practitioners. However, before expert medical evidence can be of value, the facts on which it is founded must be proved by admissible evidence.
- Sequence of consultations with doctors: Mr Guymer gave evidence that he consulted Dr Sutherland about his left knee on 18 July 2013 one week before 25 July 2013. Apparently, Dr Sutherland manipulated both knees in order to compare them and, in the course of that consultation, Mr Guymer experienced pain around the top and bottom of both knees. By comparison, the pain on 25 July 2013 was "on the outside of my knee, on the right-hand side."
- Mr Guymer confirmed that, as recorded in Exhibit 28, he was experiencing pain in both knees for about a week after that consultation. During a scheduled visit to Dr Botha on 24 July 2013 about a condition unrelated to the injury considered in these proceedings, Mr Guymer discussed the previous medical assessment and the pain he was experiencing as a result.
- As noted earlier, Mr Guymer gave evidence that he was unable to arrange an appointment with his GP in the days immediately following the alleged injury to his right knee, and saw Dr Linnett on 30 July 2013.
- Dr Linnett had some recollection of the discussion on 30 July 2013, but could not remember in detail any discussion about mechanisms of injury to the right knee on that occasion. His consultation notes referred to the bilateral knee examination to follow up an old claim in relation to the left knee (which he described as "quite routine"), and a reference back to Mr Guymer's regular GP to review the "new claims on the r knee" and aggravation of the left knee (Exhibit 19). Dr Linnett issued a medical certificate certifying that Mr Guymer was suffering from a medical condition and was unfit for work from 29 to 30 July 2013 inclusive. (Exhibit 20) However, he could not recall the reason for which the certificate was issued, i.e., whether it related to Mr Guymer's right knee or another condition from which he was suffering at that time. Dr Linnett ordered x-rays of the right knee, which were done on 1 August 2013 (Exhibit 18).
- At the second consultation on 9 August 2013, Mr Guymer asked Dr Linnett to look after the WorkCover claim in relation to the right knee. The x-rays did not, and could not, show meniscal tears. Dr Linnett asked Mr Guymer exactly what happened and his consultation notes record "twisted knee getting into a truck - slipped sideways" (Exhibit 19). Dr Linnett gave oral evidence that as Mr Guymer was getting into the truck his knee slipped sideways (i.e., it "moved laterally") rather than forward or back. In his opinion, lateral or sideways movement of the knee can cause those sort of injuries. On a Workers' Compensation Medical Certificate dated 9 August 2013, Dr Linnett recorded his diagnosis of "R knee locked at work getting into truck" and recorded the worker's stated cause of injury as "getting into truck - R leg caught on the step … knee twisted laterally." (Exhibit 21) (Dr Linnett noted that he mistakenly recorded a mechanism of injury rather than a diagnosis.) Dr Linnett prescribed non-steroid anti-inflammatory drugs.
- Mr Guymer was referred to Dr Vertullo, an orthopaedic surgeon, who examined him on 15 November 2013. In consultation with him, Mr Guymer had an MRI scan of that knee.
- At the request of the Appellant's Workers' Compensation section, Mr Guymer was also referred to Dr Andrew Patten, an orthopaedic surgeon, to whom Mr Guymer described how the injury occurred at the consultation on 25 November 2013.
Medical evidence - nature of injury
- Dr Linnett: In a written report dated 18 September 2013 (Exhibit 22), Dr Linnett stated that Mr Guymer reported "a sharp pain and lateral movement (slipped sideways) of the patella getting into a council truck." He described Mr Guymer's condition as "due to the patella not tracking centrally and hits the lateral condyle of the femur causing sharp pain." Dr Linnett had discussed that condition with the treating physiotherapist and the treatment was to strengthen the muscles to prevent this happening. Indeed, it appears that that assessment was made by the physiotherapist, or at least in consultation with him. In a letter to Dr Vertullo dated 10 October 2013, Dr Linnett wrote that the "physiotherapist Mark Kenway had felt that the patella was not tracking but the problem is persisting despite treatment" (Exhibit 23). In cross-examination, Dr Linnett agreed that, at 18 September 2013, he believed that there was some question of subluxation of the patella occurring, because Mr Guymer felt that the patella had moved. Even in light of the MRI findings, Dr Linnett considered that the patella could have slipped sideways, but he and the physiotherapist looked further because Mr Guymer's right knee did not get better.
- Dr Vertullo: In his written report to Dr Linnett (Exhibit 33), Dr Vertullo referred to the MRI which showed "a peripheral tear of the lateral meniscus which is probably a tear through the popliteal hiatus." He diagnosed a peripheral tear of the lateral meniscus. In his oral evidence Dr Vertullo described Mr Guymer as "young" and said there was "no degenerative change."
- Dr Vertullo advised that he did not believe that Mr Guymer had patella maltracking. Indeed the description given by Dr Linnett in his referral letter (Exhibit 23) of the problem occurring when the knee is flexed and the hip is partly abducted, and that the knee had locked about five to six times, was "fairly classic for a lateral meniscus tear."
- Dr Patten: In his written and oral evidence, Dr Patten referred also to the MRI report dated 30 October 2013 (Exhibit 17) and the x-ray report dated 1 August 2013 (Exhibit 18). Dr Patten reviewed those x-rays, which “demonstrate no degenerative process,” and the MRI of the right knee on 30 October 2013, which “demonstrates a tear involving the posterior horn of the lateral meniscus.” Dr Patten also noted some “benign coincidental pathologies” with a small ganglion cyst at the insertion of the anterior cruciate ligament and a prominent anterior meniscofemoral ligament which is “a developmental variant of uncertain significance” (Exhibit 16).
- Dr Patten diagnosed a “Lateral meniscal tear”. He noted that Mr Guymer described a "twisting injury," and recorded that the subsequent MRI "well demonstrates a lateral meniscal tear." Dr Patten concluded that Mr Guymer's symptoms "directly relate to this observed lateral meniscal pathology" (Exhibit 16). In his oral evidence, Dr Patten explained that meniscal tears are a "mechanical annoyance to the knee that can cause creaking and catching," as well as locking and swelling. The mechanism of injury involving the attempt to pivot on his right foot was "entirely classical" and explained "the limited nature of the pathology". The absence of any scuffing or other secondary damage to the lateral compartment articular surfaces suggested an "acute event" that had been present in the knee for months not years.
- In cross-examination, Dr Patten was asked about the following note made by Dr Linnett on 8 September 2013:
"This condition is due to the patella not tracking centrally and hits the lateral condyle of the femur causing sharp pain. The treatment is to strengthen the muscles to prevent this happening." (Exhibit 22)
- Dr Patten gave evidence that:
- (a)the note suggested a diagnosis of anterior knee pain or patella femoral pain, yet Mr Guymer was complaining of pain only at the lateral joint line;
- (b)no abnormality was noted on Mr Guymer's MRI scan suggesting pathology in his patella femoral joint;
- (c)there was no evidence of maltracking, or of constitutional dysplasia of his patella femoral joint, or of fact had oedema suggesting maltracking; and
- (d)there was no reason to experience anterior knee pain with the images of that aspect of Mr Guymer's knee that Dr Patten reviewed.
- Conclusion about nature of injury: As noted earlier, the Appellant did not dispute the clinical findings as to the existence of a lateral meniscal tear.
- Having regard to the specialist expertise of Dr Patten and Dr Vertullo and the MRI information available to them, I adopt their conclusions that:
- (a)Mr Guymer suffered a lateral meniscal tear in his right knee; and
- (b)his condition was not one of patella maltracking.
- The significant remaining issue is what caused the injury and, in particular:
- (a)whether the injury arose out of, or in the course of, Mr Guymer's employment; and
- (b)whether Mr Guymer's employment was a significant contributing factor to the injury.
Medical evidence - cause of injury
- Dr Linnett: Dr Linnett relied on the history provided by Mr Guymer to ascertain the cause of the alleged injury. As noted earlier, his consultation notes and certificates signed by him referred to an injury of the right knee sustained by Mr Guymer when getting into a council truck. In his report dated 18 September 2013 (Exhibit 22), Dr Linnett wrote that Mr Guymer reported:
"a sharp pain and lateral movement (slipped sideways) of the patella getting into a council truck. This was due to the angle of the knee as he tried to lift himself into the vehicle."
Dr Linnett also noted that he had no record of any prior injury and "so cannot conclude this is an aggravation."
- Dr Vertullo: In his written report to the Appellant, which included his report to Dr Linnett, Dr Vertullo stated that Mr Guymer described to him an event on 25 July 2013 "where he had a twisting event to the right knee when entering his work truck. He had an immediate onset of pain which is 3 to 8 out of 10 subsequently with episodes of catching and locking. He states he has never had knee problems prior to this" (Exhibit 33).
- Dr Vertullo recorded his diagnosis as "a work related right peripheral lateral meniscal tear" and described the injury as appearing to be "an acute injury caused by" the described event. He added that there had been no aggravation of a pre-existing event. He noted that by the time Mr Guymer got to surgery the injury was already chronic because it was more than four months after it occurred.
- Having recommended surgery in respect of the tear, Dr Vertullo performed the surgery on 26 March 2014. In his oral evidence he stated that the surgery confirmed his diagnosis of what he saw on the MRI and what Mr Guymer described. Dr Vertullo continued:
"but the exact causation - it doesn't assist as to where it happened, whether it happened getting out of a truck or happened, you know, some other event. There usually are - twisting compression injuries caused these type of injuries. … I was happy what the patient described to me was consistent with causing the event." (T/S3: 26)
- He added that, having regard to relevant physical signs (or absence of signs of scuffing or bleeding), the injury would not have been more than six months old. This type of injury is "quite uncommon" and the history described to him by Mr Guymer was consistent with the pathology that was visible on MRI scanning and which he found from surgery. It could be caused by a range of "twisting events," including the event as described in Exhibit 10.
- Dr Patten: In his written report, Dr Patten recorded the following account of the incident giving rise to the alleged injury:
"On 25 July this year (a Thursday) he completed a trip to a council rubbish tip to empty a truck of rubbish. The tray is emptied via hydraulic controls within the cabin. However, once the tray is brought back to a horizontal position the tailgate has to be locked. To do this he had to exit the vehicle. He completed this task. He used workplace health and safety suggestions and grabbed a handrail in both his left and right-hand and placed his right foot on a rest to pull himself in the cabin. As he was entering the driving side of this truck his right foot didn't pivot on the step. He pulled himself up with his body weight focused on his knee which was flexed at 90 degrees. As he did so he effectively twisted on his right knee and he felt a loud 'cracking noise'. His knee swelled within hours. He was able to keep working and driving his truck."
- In his oral evidence, Dr Patten said that Mr Guymer "definitely used the word twisted." When an alternative history was put in the following terms:
"after emptying the town truck, getting back into the vehicle, right foot got caught on side step of truck causing pressure on my knee making it popped out, locking up causing pain"
Dr Patten said he did not understand the mechanism, would not be able to make a determination from that description, and would probably keep questioning him about it (e.g. in relation to the position of his body, what happened at the knee, where the knee was spatially, and whether Mr Guymer felt a clicking or crack).
- Another history was put to Dr Patten in the following terms:
"As I've put the weight on my right foot to move into the driver's seat, my shoe gripped and didn't slide on the step as usual to align myself to allow me to enter the cabin. Normally what happens as you do this procedure, your foot pivots on the step. At this point, my left foot was no longer in contact with the ground as I preparing for the next step and I felt immediate pain on the outside of my right knee, as well as a clunking sensation in my knee. It felt as if my right knee has snapped or popped out of place. I immediately grabbed my knee with my right hand for support."
- Although there was no explicit reference to a twisting motion, Dr Patten did not necessarily agree that there was no indication of it. Rather, although Mr Guymer's foot did not move, Dr Patten presumed that his body would have moved entering the truck. If Mr Guymer's upper body was moving spatially on top of a fixed right foot, "essentially he's twisting on his knee." The important line is that his right foot did not pivot on the step. Dr Patten continued:
"I think specifically force was concentrated on the lateral compartment as he - I believe, as he twisted getting into the cabin with his foot fixed and because his knee was at 90 degrees, it placed the stress of that twisting motion over the lateral menisci body, and that's where the menisci has failed." (T/S2: 80)
- In terms of subsequent locking of the knee, Dr Patten said that "it's a mechanical phenomenon; the meniscus may be unstable and getting stuck in the articulation and causing sudden and brief loss of movement." He said that it was "pretty common" for someone with that condition to do what Mr Guymer said he did, that is, to try to relieve the knee by trying to straighten it out and, while doing so, feel the knee clicked back into place.
- Dr Patten said that he would expect swelling to occur about 24 hours after a meniscal injury, but there could be swelling within the first hour. He considered that a person could drive a truck after a lateral meniscal tear in the early period following the injury, as it is quite common for people to walk away from an injury like this (and attempt to "walk the pain out") because swelling and stiffness occurred 24 or 48 hours later. Dr Patten noted that during the six days of work following the injury, Mr Guymer was complaining of some swelling and laterally based pain at his knee. When Mr Guymer saw a GP, the doctor ordered plain x-rays.
- On the basis that:
- (a)there is no suggestion of any degenerative condition within Mr Guymer’s right knee;
- (b)Mr Guymer had no pre-existing condition that was aggravated;
- (c)the pathology observed is “acute and trauma related;” and
- (d)Mr Guymer is of young age and has a history in which he complained of no mechanical symptoms until the work-related twisting event,
Dr Patten considered that Mr Guymer’s employment “is the single contributing factor.” (Exhibit 16)
- In cross-examination, Dr Patten indicated that he was not provided with any history in relation to:
- (a)an incident in September 2012 where, as a result of a motor vehicle accident, Mr Guymer experienced pain, swelling and tenderness of both knees; or
- (b)a medical assessment about a week before 25 July 2013 in relation to Mr Guymer's left knee during which both his knees were manipulated and in response to which he experienced pain in both knees.
- Dr Patten agreed that the MRI did not assist him in forming a view about whether the injury might have occurred some time in the two or three weeks before 25 July 2013, or in the days immediately after that date.
- As the Respondent's submission points out, the medical practitioners are unanimous in their opinions that the event described by Mr Guymer is a classic description of an event likely to cause the meniscal tear suffered by him.
- However, as noted earlier, before medical opinion evidence can be of value the facts on which it is founded must be proved. The expert opinion evidence outlined above:
- (a)relied on both the history of the alleged incident provided to the doctors by Mr Guymer and on x-ray and MRI reports;
- (b)excludes from the injury any degenerative condition, or a pre-existing condition that was aggravated;
- (c)is to the effect that the lateral meniscal tear was an acute and traumatic injury that was caused by a twisting motion; and
- (d)is to the effect that the injury occurred on or around 25 July 2013.
- Although each doctor expressed the view that the lateral meniscal tear was consistent with the mechanism described by Mr Guymer, no doctor could say from his own personal knowledge that Mr Guymer had suffered the injury in the manner he described. Consequently, it is necessary to consider whether, for reasons set out earlier, the Appellant has established on the balance of probabilities that the injury was not sustained in the way described by Mr Guymer and hence that:
- (a)Mr Guymer's injury did not arise out of, or in the course of, his employment; or
- (b)his employment was not a significant contributing factor to the injury.
Submissions in relation to the cause of the injury
- The Appellant submits that the appeal should succeed because:
- (a)there are significant inconsistencies in Mr Guymer's account of the incident that gave rise to the injury;
- (b)there is no corroboration from witnesses to the alleged incident or obervers who saw Mr Guymer soon afterwards;
- (c)Mr Guymer delayed reporting his injury despite having an obligation to report incidents and injuries as soon as practicable and opportunities to make such a report; and
- (d)although the medical evidence is consistent with the injury being caused by the mechanism alleged by Mr Guymer, the injury could have been caused in some other way on another day.
- The Respondent submits that the evidence overwhelmingly supports findings of fact that Mr Guymer's employment is a significant contributing factor to the development of his injury and his application for compensation is one for acceptance.
- Because the evidence is set out in detail earlier in these reasons for decision, I will not repeat it but will deal with the submissions briefly by reference to it.
- Inconsistencies in accounts of the incident: Although there is an inconsistency between Mr Guymer's oral and written accounts of the sequence of events in which he says he suffered his injury (i.e., when the injury occurred), he was consistent about how the injury occurred. The expert medical evidence from Dr Patten and Dr Vertullo was that the injury was consistent with the mechanism asserted by Mr Guymer. The Appellant did not attempt to demonstrate that the mechanism of injury asserted by Mr Guymer was not plausible.
- Absence of corroboration: I accept the Respondent's submission that Mr Gatto did not observe Mr Guymer getting into the truck and was not paying much or any attention. Mr Gatto did not witness the incident because he was outside the cabin of the truck, on the passenger side, when it occurred. The incident described by Mr Guymer was over in a short period of time and it is not surprising that Mr Gatto did not witness it.
- The fact that Mr Guymer did not report his injury to Mr Gatto is explained by the minimal interaction between them in the course of their few days working together. I accept that they did not converse freely and that most of their work during each shift was done independently of the other. It is quite plausible that, having flexed and adjusted his leg so that his knee was no longer locked and the pain had eased, Mr Guymer felt no need to discuss the matter with Mr Gatto once he was in the cabin of the truck. Indeed, as the Respondent submits, it might be to Mr Guymer's credit that he got on with the job without complaining to Mr Gatto, a worker with whom he spent very little time and had no real relationship.
- Mr Munro was the only witness to give evidence in relation to any symptoms experienced by Mr Guymer relatively soon after the alleged incident. His recollection of conversations with Mr Guymer and Mr Guymer's appearance on 25 July 2013, as well as his diary notes made before during and after the meeting on 25 July 2013, support a finding that Mr Guymer demonstrated some discomfort and spoke to Mr Munro about a recent, work-related injury to his right knee. I do not consider it surprising that, given the significantly different work relationships he had with Mr Gatto and Mr Munro, Mr Guymer would have spoken to Mr Munro about the injury having not mentioned it to Mr Gatto.
- Apart from those communication with Mr Munro, Mr Guymer gave evidence that, even though he felt some pain or discomfort, he stood and walked without apparent injury that afternoon. That is consistent with the observations of the others present at the meeting in the afternoon of 25 July 2013. Significantly, it is also consistent with the evidence of Dr Patten that a person could drive a truck after a lateral meniscal tear in the early period following injury, and that it is quite common for people to walk away from an injury like this because swelling and stiffness occur some hours later. Mr Guymer gave evidence that the swelling started to appear after he had a shower that evening and continued into the Friday.
- I also accept that Mr Guymer did not report his injury to his supervisor during the meeting that afternoon because of the purpose and dynamics of that meeting, his anxiety about the meeting, the way in which the meeting ended, and his uncertainty about the nature and extent of his undiagnosed injury.
- Delay in reporting the injury and the incident: The Appellant submits that Mr Guymer was not a novice in workers' compensation matters and was familiar with the requirement for reporting incidents and completing incident report forms on a timely basis. The Appellant also highlighted the obligation of an employer to report incidents and injuries as soon as practicable, and it may be that Mr Guymer did not comply strictly with that obligation. However that does not, of itself, demonstrate that he did not suffer the injury when and how he asserts.
- The explanations given by Mr Guymer and Mr Guymer Snr about why the incident and injury were not reported to the Appellant before Mr Guymer's return to work on 31 July 2013 are plausible. They were set out in detail earlier. In summary:
- (a)Mr Guymer had a rostered day off work on Friday 26 July and did not work on the weekend, and did not consider that he had to advise his supervisor on those days;
- (b)Mr Guymer did not appreciate the seriousness of the injury until he attended a doctor;
- (c)despite attempts to see his regular GP on Friday 26 July and Monday 29 July 2013, he was unable to see a doctor until Tuesday 30 July 2013;
- (d)it was not certain on the weekend that Mr Guymer would not be going to work on the following Monday, and it was possible that they could not have contacted Mr Brudenell at work after 9.00 am on Saturday;
- (e)Mr Guymer had difficulties contacting his employer by telephone on the relevant days, and Mr Guymer Snr only contacted Mr Brudenell to inform him that Mr Guymer would not be at work and not the reason for his absence.
- As soon as he returned to work on Wednesday 31 July 2013, Mr Guymer took the first opportunity to report the injury and how it occurred to his supervisor.
- For completeness I note that, although the incident had been reported to Mr Munro, he was not obliged to report the injury to the Appellant on Mr Guymer's behalf.
- Some other cause of injury: As noted earlier, the expert opinion evidence of Dr Patten and Dr Vertullo allows the possibility of another incident soon before or after 25 July 2013 giving rise to the injury. However, there was no evidence of any such incident. When it was put to Mr Guymer that the injury happened on the weekend, he denied that and insisted that it happened at the Stapylton tip on the Thursday. The Appellant did not identify an alternative incident and was unable to demonstrate that the injury was caused by some other event involving a similar mechanism in the period around 25 July 2013. A faint suggestion that it might have been caused by Dr Sutherland's manipulation of Mr Guymer's knee on 18 July 2013 is not supported by other medical evidence, and is contradicted by Mr Guymer's description of experiencing a different type of pain in relation to the lateral meniscal tear.
Conclusion and orders
- For the reasons set out above, I conclude that, despite its detailed and sustained critique of the evidence, the Appellant has not established on the balance of probabilities that the incident at Stapylton tip on 25 July 2013 as described by Mr Guymer did not occur. Rather, there is sufficient evidence to satisfy me that Mr Guymer injured his right knee while entering the driver's cabin of the Appellant's truck in the way he described.
- There is no issue that Mr Guymer was engaged in activities for which he was employed when he drove the Appellant's truck to Stapylton tip on 25 July 2013 and deposited the rubbish that he and Mr Gatto collected that morning. Getting into the driver's seat in the cabin of the truck was something he had done many times before in the course of his employment. It was an activity that was integral to the work he was employed to do.
- The injury he sustained arose in the course of his employment. It would not have occurred had Mr Guymer not been working in that way. His employment was the only contributing factor to the injury.
- (a)The appeal is dismissed;
- (b)The decision of the Regulator is confirmed;
- (c)The Appellant is to pay the Respondent's costs of, and incidental to, the appeal in an amount agreed between the parties or, failing agreement, on application to the Commission.
- Order accordingly.
 State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447 (Hall P); Q-COMP v Hetherington  176 QGIG 493 (Hall P).
 See e,g, SPE Pty Ltd AND Q-COMP and Gary Clifford Fuller (C/2010/19) - decision
 Labaj v WorkCover Queensland (2003) 174 QGIG 370.
 See Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, 5.
 See MacArthur v WorkCover Queensland  167 QGIG 100, 101; Ian James Johnston v Q-COMP (2007) 185 QGIG 86; Taylor v Q-COMP and King (2008) 187 QGIG 105,  and authorities cited there.
 Employment records show that, in the period of Thursday 18 and Friday 19 July 2013 and Monday 22 July to Thursday 25 July 2013, Mr Gatto was at work from 5.00 am until 1.52 pm on each of those days (Exhibit 3) but Mr Guymer was on sick leave on 19, 22 and 23 July 2013 (Exhibits 25, 26 and 27).
 Mr Guymer Snr has taken a close interest in matters between Mr Guymer and his employer. He explained that he had 30 years of experience (including periods in payroll master, senior positions in small plant, and fuel management coordinator) on which he could draw in assisting his son. He has assisted his son by correlating evidence, preparing submissions, sending email messages to the Appellant, and signing statutory declarations in relation to the present claim and previous psychiatric claims. Three emails sent by him in January 2014 in support of Mr Guymer's claim for compensation were tendered (Exhibits 29, 30 and 31). On a number of occasions, he spoke to Mr Munro by telephone or face-to-face in relation to the present claim, and requested a copy of Mr Munro's diary notes.
 Garry Middleton of Maurice J Kerrigan & Associates Pty Ltd
 Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 44 ALR 607; Owen Richard Hancock v Q-COMP (2007) 184 QGIG 194, 194-196.
 Workcover Queensland v BHP (Qld) Workers' Compensation Unit (2002) 170 QGIG 142; Sutherland v Q-COMP (2009) 190 QGIG 106, 110; Theresa Helen Ward v Q-COMP (C/2011/39) - decision
 Davidson v Blackwood  ICQ 008, ,  (Martin J)
 Q-COMP v Darren Bruce Parsons (2007) 185 QGIG 1, 3.
 Coombes v Q-COMP (2007) 185 QGIG 331, 334-5 (Edwards C); Blackwood v Mana  ICQ 027,  (Martin J).
 The original report referred to the "medial" meniscus, which in his oral evidence Dr Vertullo described as a typographical error which he corrected to "lateral" meniscus.
 The original report referred to the "medial" meniscus, which in his oral evidence Dr Vertullo described as a typographical error which he corrected to "lateral" meniscus.
- Published Case Name:
Gold Coast City Council v Simon Blackwood
- Shortened Case Name:
Gold Coast City Council v Simon Blackwood
 QIRC 125
Industrial Commissioner Neate
02 Jul 2015