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Christopher Raines v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 128

Christopher Raines v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 128

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Christopher Raines v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 128

PARTIES:

Christopher Raines

(Appellant)

v

Simon Blackwood (Workers' Compensation Regulator)

(Respondent)

CASE NO:

WC/2014/193

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

10 July 2015

HEARING DATES:

30 September, 1-2 October 2014 (hearing)

11 November 2014 (Appellant's submissions)

28 November 2014  (Respondent's submissions)

12 December 2014 (Appellant's submissions in reply)

MEMBER:

Industrial Commissioner Knight

ORDERS :

  1. The appeal is dismissed;
  2. The decision of the Regulator dated 19 May 2104  is confirmed; and
  3. The Appellant is to pay the Respondent's costs of and incidental to the appeal to be agreed.  In the event agreement cannot be reached between the parties with respect to the costs the Appellant has the liberty to apply.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION - whether injury arose out of or in the course of employment - whether employment a significant contributing factor - Appellant bears onus of proof - appeal dismissed.

CASES:

Workers' Compensation and Rehabilitation  Act 2003 s 32

Carman v Q-COMP 186 QGIG 512 [513]

Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100

Heald v Q-COMP (2004) 177 QGIG 769

JBS Australia Pty Ltd and Q-COMP (C/2012/35) - Decision

Kudryavtseva v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 053

McDonald v Q-COMP (2008) 188 QGIG 180

Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48

APPEARANCES:

Ms. L. Willson instructed by Shine Lawyers for the Appellant. 

Mr R. Clutterbuck directly instructed for Simon Blackwood (Workers' Compensation Regulator). 

Decision

  1. [1]
    This is an Appeal by Mr Christopher Raines ("the Appellant") pursuant to s 550 of the Workers Compensation and Rehabilitation Act 2003 ("the Act") against a decision of the Regulator ("the Respondent").  The decision of the Regulator confirmed the earlier decision of WorkCover to reject Mr Raines' application for compensation for a shoulder injury, in accordance with s 32 of the Act.

Grounds of Appeal

  1. [2]
    The  grounds of appeal filed by the Appellant are as follows:
  1. "The Appellant submits that the accident (resulting in his shoulder injury) occurred as stated during the course of his employment on 13 August 2013;
  2. Q-Comp ought to have accepted the review of the Applicant on the basis the event causing the injury occurred on the balance of probabilities." 
  1. [3]
    Facts relied on:
  1. "The Applicant was employed by the Respondent employer as at the date of the incident, 13 August 2013;
  2. The Applicant reported the injury to the Respondent employer;
  3. The Applicant also reported the injury as occurring at work to Dr Kah Ho on 20 August 2013;
  4. The Respondent employer agreed to pay for the Applicant's MRI scan undertaken on 21 September 2013 due to the fact that the injury had "occurred at work";
  5. As such, it should be found that the Applicant has sustained an injury which occurred in the course of his employment;
  6. The Applicant's employment was a significant contributing factor to the injury; and
  7. The Respondent should pay the Applicant's costs of the appeal". 

Issues for Determination and Relevant Authorities

  1. [4]
    Mr Raines carries the burden of proof in this appeal.  He must prove on the balance of probabilities that:
  1. his personal injury, namely a Left Supraspinatus Tendonitis/Subacromial Bursitis; and/or Para Labral Cyst Left Shoulder (With Assumed Posterior Labral Tear) is one arising out of, or in the course of employment; and
  2. his employment with Mecano Sheds is a significant contributing factor to the injury.  
  1. [5]
    Section 32 of the Act relevantly provides as follows:

  "32 Meaning of injury

  1. An injury is personal injury arising out of, or in the course of, employment if -
  1. for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury; or
  2. for a psychiatric or psychological disorder - the employment is the major significant contributing factor to the injury. 
  1. However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies. 
  1. Injury includes the following -
  1. a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
  2. 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;
  1. (i)
    a personal injury other than a psychiatric or psychological disorder:
  2. (ii)
    a disease;
  3. (iii)
    a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation
  1. 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."
  1. [6]
    In Kudryavtseva v Simon Blackwood (Workers' Compensation Regulator),[1] Neate C considered the authorities in so far as they related to onus, noting:

"Although the onus to be discharged is on the balance of probabilities, the Commission, in dealing with the matter, must feel an actual persuasion before the alleged facts can be found to exist.  The mere possibility of an appellant suffering an injury on mere conjecture is not enough.  Inference must be carefully distinguished from conjecture or speculation.  There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish.  (See MacArther v Workcover Queensland (2001) 167 QGIG 100, 1010 (Hall P) and cases cited)."

And later:

"In a case where expert medical evidence is led, before any such expert medical evidence be of value, the facts upon which it is founded must be provided by admissible evidence (see Coombes v Q-Comp (2007) 185 QGIG 680, 681)."

  1. [7]
    In Newberry v Suncorp Metway Insurance[2] Keane JA, with whom de Jersey CJ and Muir J agreed said:

"[27] It cannot be disputed that, when s 32 of the WRC speaks of  'employment'  contributing to the worker's injury, it is referring to employment as a set of circumstances, that is to the exigencies of the employment of the worker by the employer.  The legislation is referring to 'what the worker does in fact does during the course of employment'."

  1. [8]
    As to aggravation of an injury, in Heald v Q-COMP[3], Hall P confirmed the view of Dr Turner that there are two types of compensable aggravation:

"A degenerative condition may be aggravated in the sense that it may be made worse, i.e. after the aggravation the degenerative disorder is worse than it was before.  But there can also be an aggravation in the sense of an increase of symptoms associated with a degenerative condition which, after the cessation of the symptoms, returns to its pre-aggravation state."

  1. [9]
    In JBS Australia Pty Ltd and Q-COMP[4] Hall P confirmed the need to establish that "employment must significantly contribute to the occurrence of the injury.  It is insufficient to establish that the employment was the setting in which the aggravation occurred or the background to its occurrence."
  1. [10]
    Likewise, in Croning v Workers' Compensation Board of Queensland[5] citing Tophams Ltd v Sefton (1966) 1 All E. R. 1039, de Jersey P held that employment needs to be a "real effective cause" of the injury and not merely the setting or background in which the injury occurs.
  1. [11]
    Relevant to degenerative injuries and the onset of pain Hall P stated in Carman v QCOMP[6]

"It must be remembered that Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181 is an often cited but ageing authority… Pleming v Workers' Compensation Board of Queensland, ibid, does not decide that a worker afflicted with a degenerative back suffers an injury if the back becomes painful at work.  Neither does Pleming, op. cit., establish that a worker with a degenerative back will suffer an injury where the back becomes painful or more painful and the employment is a significant cause of the onset or intensification of pain."

  1. [12]
    The appeal to the Commission is by way of a hearing de novo.[7]

Witnesses

Mr Raines

  1. [13]
    Mr Raines gave evidence in support of his Appeal.  The Appellant commenced his employment with Mecano Sheds ("the Employer") in 2006 when he initially undertook a part-time traineeship, eventually working his way up to an Operations Manager role.  In June/July 2013, Mr Raines elected to take on a factory supervisory role but also continued to oversee accounts and other financial aspects of the business.  On 13 August 2013, the Appellant said he sustained an injury to his left shoulder whilst performing work related duties at his workplace. 

Mr Crossley

  1. [14]
    Mr Matthew Crossley was called to give evidence by the Appellant.  Mr Crossley had worked for the employer and with the Appellant in a training capacity since just prior to August 2013.  He was undergoing training conducted by Mr Raines.  His work duties included the operation of machines such as the Folder, C-section and Guillotine.  He also undertook particular administrative tasks as well.

Mr Brown

  1. [15]
    Mr Neville Brown was called to give evidence by the Appellant.  Mr Brown also worked for the employer performing welding and roll-forming duties.  He worked for the employer at the time the Appellant sustained his injury on 13 August 2013. 

Mr Warner

  1. [16]
    Mr Raymond Warner was called to give evidence by the Appellant.  Mr Warner worked with the Appellant for the employer from January 2014. 

Ms Yelaska

  1. [17]
    Ms Yelaska was called to give evidence by the Appellant.  She is the wife of Mr Geoffrey Yelaska who is a Director of Mecano Sheds Pty Ltd.  Ms Yelaska assists with the payment of accounts for the employer, undertakes drafting and also oversees the bank accounts of the business including the preparation of bank reconciliations. 

Mr Yelaska

  1. [18]
    Mr Geoffrey Yelaska is a Director of Mecano Sheds and had employed the Appellant for approximately 9 years.  Mr Yelaska was called to give evidence by the Regulator.

Ms Tracey Allsop (nee Ryan)

  1. [19]
    Ms Tracey Allsop (nee Ryan) was called to give evidence by the Respondent.  Ms Allsop formally took on a role at Mecano Sheds as Operations Manager around late 2012, but before this had been undertaking elements of Mr Raines role when he elected to undertake the supervision of the factory in mid-2012.

Dr Andal

  1. [20]
    Dr Andal is a General Practitioner who first treated the Appellant on 30 August 2013 and provided evidence for the Appellant. 

Dr Robinson

  1. [21]
    Dr Robinson is a hand and upper limb surgeon who prepared two Medical Reports concerning the Appellant.  Dr Robinson provided evidence for the Appellant. 

Dr Kah Ho

  1. [22]
    Dr Kah Ho is a General Practitioner who first saw the Appellant on 20 August 2013 and was called to give evidence by the Appellant.   

Dr Winstanley

  1. [23]
    Dr Andal referred Mr Raines to Dr Winstanley, an Orthopaedic Surgeon.  He saw Mr Raines on two occasions, 17 September 2013 and 13 March 2014 and prepared reports in respect of those consultations.  Dr Winstanley was called to give evidence by the Regulator. 

The evidence relating to the injury

  1. [24]
    On 13 August 2013, Mr Raines said that he was working, on his own, on the CSection machine at the Mecano Sheds factory.  His evidence was that the work also entailed moving extruded metal from the machine by lifting it and placing it onto a trolley.  There is conflicting evidence as to how the guillotined beams were moved off the machine, with Mr Raines indicating it was necessary to lift the beams to get them onto a trolley.  In contrast, the Respondent submitted that there was a trolley placed beside the machine which was of equal height to the bench upon which the metal extrudes were placed.  These beams were generally slid over to the trolley, except in circumstances where the trolley stacks were high or particularly long and heavy and on those occasions assistance would be required to perform this task.  Both Mr Crossley and Mr Brown gave evidence that they assisted the Appellant when performing these duties. 
  1. [25]
    On the day of the alleged injury, Mr Raines said he was working on his own.  He recalled feeling pain in his shoulder as he was moving a beam onto the trolley.  He said he went into the office and reported the pain to Ms Allsop.  He recalled Ms Allsop asked him to keep an eye on it and that she told him to continue on with "your work".  Ms Allsop denied Mr Raines reported a work related injury on that day and said that had it been so, she would have recorded it on an Incident Report form.
  1. [26]
    Instead, Ms Allsop recalled the Appellant mentioning to her that he was going to have surgery in 18 months' time.  This information was given to her after August 2013.  When she asked Mr Raines what had happened to him to warrant surgery, she recalled he told her that he had had a cyst on his shoulder for some time, but that he was fine with lifting.  Upon hearing this, Ms Allsop said she advised others in the factory about his sore shoulder and requested they make sure that he was not doing any heavy lifting.  This instruction was confirmed by Mr Crossley. 
  1. [27]
    Mr Raines claimed Mr Crossley had not been working with him on the day of the injury, but Mr Crossley's evidence was at odds with these claims when he indicated he was the Appellant's assistant and spent a of time with him in the factory.  Mr Crossley's evidence was that he was undertaking training from the Appellant and was standing by his side almost every time they were on the factory floor. 
  1. [28]
    Mr Crossley described the method used in working on the Csection.  He told the Commission that it extrudes from the machine and is slid onto a trolley so it is never physically picked it up completely and not by one person.  If it is necessary to lift it another person is asked to assist.  Later, in re-examination, Mr Crossley said that on some occasions he had observed Mr Raines sliding one end of a beam onto the trolley and then walking to the centre to pick the material up and put it on the trolley.  He said this was somewhat different to how he performed the work on the C-Section machine in that he would not physically lift the whole length, but only lift and slide half of it at a time. 
  1. [29]
    Whilst he was unable to recall the date, Mr Crossley recalled that at some point Mr Raines did advise him that he had a sore shoulder and that he had a cyst on his shoulder.  However, he said that Mr Raines had not told him that he had incurred the injury at work.  It was his understanding he had told Ms Allsop about his shoulder because she had taken the time to speak to Mr Crossley and requested he ensure Mr Raines was not to lift anything by himself.  Mr Crossley could not recall when Ms Allsop had advised him of this. 
  1. [30]
    The Appellant submitted other witnesses in this matter had never seen an Incident Report Form.  This assertion was rejected by Ms Allsop who tendered a copy of an Incident Report Form completed by her in response to another employee in the factory who experienced an electric shock in late 2012 when he walked through some water.  Ms Willson, Counsel for the Appellant questioned Ms Allsop as to whether Incident Report Forms had ever been utilised in the workplace.  Ms Allsop told the Commission she had maintained a folder that contained a number of Incident Report Forms relating to various cuts and incidents in the factory that had occurred since she had taken on the Mecano Sheds role.  She said it had been removed from her office on or around the same time she believed Mr Raines had been in the factory over the course of a weekend and just prior to him leaving his employment.  Notwithstanding these claims, Ms Allsop confirmed she did not know who had removed the file.
  1. [31]
    The example of the Incident Report form provided to the Commission which recorded details of the electric shock incident also contained a Swinburne University logo in its header.  The written detail in respect of the injury and subsequent signatures on a coloured copy of the form, which was later tendered during the proceedings, was recorded in a series of different pen colours.  Ms Allsop said that this form had been kept in a separate folder from the other forms because she had considered the incident to be quite serious.
  1. [32]
    When requested to explain her use and understanding of the incident report form, Ms Allsop responded by saying:

"When you say am I familiar with this document, I don't know - understand your question.  I printed it off a website and quickly filled it in so that I had some report of the time and what I did in that moment - in that moment".[8] 

  1. [33]
    Other than for the evidence of Mr Raines, there is no corroborating evidence adduced from others working at the workplace on 13 August 2013 that he suffered an injury to his shoulder.  Whilst Ms Allsop, Mr Crossley and Mr Warner were aware Mr Raines had a sore shoulder, they were never advised the injury had arisen as a result of his work duties.  The evidence of Mr Geoffrey Yelaska, a Director of Mecano, in a document tendered during the proceedings, was he recalled Mr Raines mentioning to him he had hurt his shoulder in a game of skirmish some time beforehand, but Mr Yelaska was quite clear Mr Raines had not mentioned his shoulder to him again and Mr Raines had never suggested the injury was work related.  The only evidence supportive of the Appellant suffering an injury on 13 August 2013 was given by the Appellant's wife, Mrs Raines. 
  1. [34]
    Mr Raines lodged a claim for Worker's Compensation approximately six months later on 10 February 2014.  The nature of the injury listed on the claim form referred to "Shoulder, Muscle Tendon Strain (non-traumatic)".

Medical Evidence

  1. [35]
    Medical evidence was provided by General Practitioner, Dr Kah Ho who first saw the Appellant on 20 August 2013.  The consultation records for Mr Raines' appointment with Dr Kah Ho, noted:

"pain L shoulder for few days lift heavy metal sheds at work, possibly strained himself been putting dencorub on it"

  1. [36]
    Whilst he struggled to directly recall his consultation with Mr Raines, Dr Kah Ho told the Commission that Mr Raines had reported he thought he might have hurt his shoulder lifting heavy metal sheds at work.  In cross-examination he said he relied solely upon the information given to him by the Appellant. 
  1. [37]
    A further record from the Gympie Hospital (Emergency Department Clinical Record) dated 25 August 2012, noted under the heading of "Presenting Problem", "Left shoulder pain onset 5/7 ago at work seen by GOP who said to present if worsening".
  1. [38]
    On the same date, the Appellant saw Dr Fullerton (Gympie Hospital - Emergency Department Clinical Summary) who noted:

"24 year old man

Presented after having sore shoulder for about five days. Does sometimes get shooting pains on lifting.

No history of trauma

Had a massage recently

Full ROM of arm

No sensation of change"

The primary diagnosis of Dr Fullerton was that the Appellant was suffering from "Rotator Cuff Syndrome".  Beyond that, there was no mention of work being causative of the injury. 

  1. [39]
    Dr Frances Andal, General Practitioner, saw the Appellant on 30 August 2013 for shoulder pain and light headedness.  Dr Andal arranged for an x-ray, the findings of which were provided to the Commission and which noted:

 "1.Mild tendinopathic of anterior fibres of supraspinatus;

2.Cystic change at the posterior aspect of the labrum suspicious for a paralabral cyst formation from a labral tear."

  1. [40]
    During the hearing there was some question as to where Mr Raines was at the time he completed his original WorkCover application form.  Mr Raines' evidence was he was at Rainbow Beach and had lodged the form after discussions with his lawyer.  In contrast, Dr Andal's evidence, whilst at times not entirely clear or consistent, was that it was not normal practice to issue a certificate unless the patient was present at the surgery.  In cross-examination, Dr Andal confirmed she did not retain any clinical notes regarding the issue of WorkCover Certificates and she had relied largely on the reporting of the Appellant.  Certainly, no record of a consultation on 10 February with Dr Andal was provided to the Commission.  Mr Raines subsequent consultations in September and October 2013 and February 2014 note the onset of depression but no reference to shoulder pain.  Dr Andal subsequently referred Mr Raines to Dr Winstanley, Orthopaedic Surgeon in September 2013 for an opinion and management.  There was no reference to a workplace injury included in the referral letter.  
  1. [41]
    In correspondence to Dr Andal dated 18 September 2013, Dr Winstanley noted Mr Raines:

"does not have a history of any major incident or injury to his shoulder and has no history of dislocation;

ultrasound is suggestive of posterior labral cyst;

required an MRI scan. "

  1. [42]
    Dr Winstanley's evidence was that the Appellant had told him he had developed pain in his shoulder some weeks prior to the consultation.  In his records, Dr Winstanley made a notation about "lifting – manufacturing”.  Dr Winstanley was asked whether a labral tear could be associated with heavy lifting.  His response was "it could be a cause, but on a - more than likely, in my experience, labral tears are usually associated with an injury".[9]  He stated that it is effectively trauma based. 
  1. [43]
    Dr Winstanley’s evidence focussed predominantly on the Appellant's labral tear only and did not comment upon the Left Supraspinatus tendonitis/subacromial Bursitis.  Findings in an MRI report provided to Dr Winstanley on or around 23 September 2013 concluded with a finding of postero-inferior paralabral cyst but noted the rotator cuff appeared intact.  Correspondence prepared by Dr Winstanley for Dr Andal on 2 October 2013 noted:
  • The presence of a labral cyst;
  • Contemplated the existence of a tear within his posterior labrum;
  • Highlighted the requirement for surgical removal;
  • Noted Mr Raines required a referral to the public hospital system as he was uninsured.
  1. [44]
    In a letter dated 11 October 2013 to Dr Andal from the Sunshine Coast Hospital and Health Service, Mr Raines was assessed as a "Category 3 APPOINTMENT DESIRABLE WITHIN 365 DAYS".  The letter advised of a considerable wait time for the Orthopaedic clinic. 
  1. [45]
    In a report prepared on 18 August 2014, Dr Robinson, a hand and upper limb surgeon, determined that the Appellant suffered from two injuries:
  • Left supraspinatus tendonitis/Subacromial Bursitis;
  • Para Labral Cyst Left Shoulder (With Assumed Posterior Labral Tear). 

Doctor Robinson's view was supported by the X-Ray and Ultrasound results.  The Radiologist identified "rotator cuff dysfunction" with "mild tendonopathic of the anterior fibres of the supraspinatus". 

  1. [46]
    In his consultation with Dr Robinson, Mr Raines reported he was required to stack up to six layers of beams onto a trolley and that he would undertake this activity by himself with no assistance from co-workers or mechanical lifting.  Based on the reported history and the results of the X-Ray and ultrasound examinations, Dr Robinson opined the pain experienced by the Appellant originated from tendonitis, noting:

"The tendonitis is inflammation of the tendon so you've got sort of a prodrome leading up to it until the point where you have a straw that broke the camel's back and they go from being - they become symptomatic, so I would - I would interpret that that was the day where his shoulder's just finally went I can't do this anymore"[10]

  1. [47]
    Dr Robinson's view was that:

"it was the activity that caused the symptomatology because the Appellant was lifting greater than 30 degrees to the axis of the body with his hand a long way from his shoulder and he had a moderate weight in his hand."[11]

  1. [48]
    Having said that, Dr Robinson considered it would have been impossible for the Appellant to manipulate beams which weighed between 40 to 65 kilograms.  He thought the weights suggested were an over-estimation of the materials lifted.  However, if the weights lifted were around 25 to 30 kilograms there would be a high risk of the Appellant developing symptoms. 
  1. [49]
    Dr Robinson said he had written his report based upon the information given to him by the Appellant.
  1. [50]
    The Appellant submitted the second injury, the Labral Tear occurring at work, was open to the Commission. 

Issues of Credit

  1. [51]
    Both Ms Allsop and Mr Crossley told the Commission after the date of the Appellant's alleged injury, Mr Raines had begun building a separate office in the form of an elevated shed within the factory.  The Appellant claims he used a forklift to take up the various tools which were required for its installation.
  1. [52]
    However, Mr Crossley who assisted Mr Raines with the building of the office during this period said the Appellant was regularly up and down a ladder and carrying various tools.  The office installation was undertaken in December 2013.  The Respondent submitted if the Appellant was suffering from his injury, it then would have been impossible for him to have built the particular shed.  Whilst Ms Allsop was unable to describe with any clarity the type of tools Mr Raines was using, she was also confident she had observed Mr Raines actively involved in the building of the shed within the factory.
  1. [53]
    The Respondent also argued Mr Raines has brought his claim for the purposes of seeking revenge against Mecano Sheds following a breakdown in their relationship, and further, Mr Raines' WorkCover form of 10 February 2014 was completed after he had become aware he was not able to gain medical insurance cover for his shoulder surgery.
  1. [54]
    The background to this submission is that Mr Raines undertook clerical and accounts work for the Respondent and held an intimate understanding of the Respondent's accounting processes following the resignation of Ms Julie Batchwell in or around 2012.  According to Ms Allsop and Mr Yelaska, the Appellant would take a laptop computer home and often performed the business accounting work from his home.  In effect, the Appellant held all of the businesses' accounting and financial records on his laptop.  Ms Allsop took steps to request the financial data, including MYOB files be shared with other computers in the office but in the end, she maintained the historic files were never provided and are still outstanding.
  1. [55]
    Mr Raines, who was also a signatory to the cheque account, regularly wrote out cheques for the payment of invoices and prepared cheque listings which Mr Yelaska's wife would review.  The Respondent submitted Mr Raines' employer, on reviewing cheque payments against invoices and purchases, had formed a view he had abused his position of trust in the business to the extent that it has alleged, separately, financial fraud on the Appellant's part which has led to criminal charges being laid against the Appellant by the Queensland Police Service. 
  1. [56]
    A further issue concerning credit related to the Appellant's claim that when he suffered his injury he had spoken with Mr Yelaska who had offered to pay him $475 to cover the costs of his appointment with Dr Winstanley.   Mr Yelaska denied any knowledge of the appointment or making these offers and also denied the Appellant had told him that he had suffered a work injury.  Mr Yelaska's evidence was that his wife always documented instances where Mr Yelaska provided staff with payments, bonuses or other benefits that exceeded $50 - $100.  The Respondent says that the claim made by Mr Raines concerning his alleged request for $475 from Mr Yelaska for payment to attend a consultation with Dr Winstanley was a ruse. 
  1. [57]
    In contrast, the Appellant claimed he cashed the cheque, taking the proceeds to the medical clinic (where his consultation was subsequently bulk billed), after which he spent a portion of the cash on fuel and food and returned the balance of the cash back to Mr Yelaska.  Mr Yelaska denied being given any cash by Mr Raines.  The Respondent also argued the Appellant already had a fuel card as part of his work benefits and questioned why he would have left his card at work, claiming the Appellant's evidence around this matter was untruthful. 
  1. [58]
    Another issue arising out of Ms Allsop's evidence concerned the prior Incident Report Forms compiled by the business, which she claimed had been removed from her filing cabinet over a weekend when the Appellant accessed the office of the employer in circumstances where the security system was accurately reporting and monitoring such access. 
  1. [59]
    Evidence in support of the Appellant's claims came from his wife, Mrs Raines.  She agreed that she had spoken to a medical practitioner about the waiting list for her husband's surgery and around that time she had also become aware that WorkCover might pay for that surgery. Whilst Mrs Raines said she believed her husband and Mr Yelaska had discussed not getting WorkCover involved in this matter, the Respondent says that this is hearsay evidence and that the only reason the Appellant claimed WorkCover was because his personal health insurance did not cover the cost of an operation. 

Findings and Conclusion

  1. [60]
    It is not contested that the Appellant is a "worker" for the purposes of the Act.
  1. [61]
    To be successful in his Appeal, Mr Raines must prove on the balance of probabilities that his personal injury, namely a Left Supraspinatus Tendonitis/Subacromial Bursitis; and/or Para Labral Cyst Left Shoulder (With Assumed Posterior Labral Tear) is one arising out of, or in the course of employment; and that his employment with Mecano Sheds is a significant contributing factor to the injury.
  1. [62]
    What also needs to be determined in this matter is whether Mr Raines was operating the C-section machine in the manner he described on 13 August 2013; and whether he moved or lifted a beam in the manner described to the extent that it led to his shoulder injuries.  There is also a dispute as to whether Mr Raines reported his injury to Ms Allsop and whether there was any established practice within the business to report and document workplace related injuries at the time of the alleged injury.
  1. [63]
    The Respondent submitted the determination of this matter is essentially reliant on the acceptance of the testimony of Mr Raines in circumstances where there is no contemporaneous note or statement of observation of the alleged injury by any other witness and where the claim was lodged some five months after the alleged injury arose after the relationship between the employer and Mr Raines had largely broken down.
  1. [64]
    Mr Clutterbuck, for the Regulator, actively questioned whether Mr Raines sustained a workplace injury on 13 August 2013 at all, pointing to his conduct during the hearing process during which he submitted was consistently evasive and untruthful. 
  1. [65]
    Instead, the Respondent has submitted Mr Raines is a person who has suffered some sort of disability or injury, which is not a workplace injury.  Further, that on or around the time he recognised he needed surgery to fix the problem the only way for Mr Raines to access surgery, in circumstances where he has no private health insurance, was to attempt to take advantage of the WorkCover system, in order to compensate him for the private surgery that was necessary to repair his shoulder in a timely manner.
  1. [66]
    The Appellant's submissions point to the nature of the work performed by Mr Raines at the workplace noting it is the Commissions role, to determine on balance whether Mr Raines has proved his case.  Ms Willson, Counsel for the Appellant submitted the medical evidence in support of how Mr Raines' injuries arose is compelling, highlighting the contemporaneous notes taken by Doctors at the time of this injury. 
  1. [67]
    On the evidence before the Commission however, I am not persuaded that an injury within the meaning of the act has occurred.
  1. [68]
    There is no question that the beams produced by the C-Section machine were cut at least 6 metres in length and weighed approximately 40 kilos.  If, as stated by the Appellant and Mr Crossley, the sections were moved onto the trolley, then the weight of any such lift or transfer that may have occurred during this process would have been reduced to between 23 and 30 kilos.  The difficulty I have with Mr Raines' claim is that is no evidence or contemporaneous documentary notations, save from that provided by Mr Raines and his wife (who wasn’t in the workplace), that he suffered an injury on 13 August 2013.
  1. [69]
    Significantly, Mr Crossley, the person who was always assigned to work with the Appellant, had no knowledge of any incident.  Mr Yelaska stated he also had no knowledge, as Managing Director of the business, of a claim of injury on the part of Mr Raines on that day.  Whilst such an occurrence is not always fatal to an Appeal, the concerns I have with Mr Raines' appeal are further compounded by issues of credit and a lack of evidence in support of other claims made by him surrounding the manner in which he alleges events associated with the reporting of the injury unfolded.
  1. [70]
    For example, Mr Raines maintains he immediately reported the incident to Ms Allsop who strongly denied this and instead gave evidence that had such an incident been reported by Mr Raines she would have maintained a record.  Ms Allsop pointed to an example of another workplace incident report where an employee had experienced an electric shock and she had completed an incident report.
  1. [71]
    Counsel for the Appellant submits the Commission should not be satisfied the reporting of workplace incidents in the format proposed by Ms Allsop was a process that was consistently adopted by the workplace due to the lack of other reports.
  1. [72]
    Ms Allsop claimed her folder of incident reports went missing one weekend just prior to Mr Raines resigning his employment, but that she'd been able to produce the 'electric shock' incident report because she had kept it in another folder.  In my view, Ms Allsop's evidence in respect of the example of the incident report provided was credible and solid. Further, whist it is clear that at some point Mr Raines more than likely did mention his shoulder pain to Mr Crossley, Ms Allsop and Mr Warner, I accept he did not frame these comments in the context of a workplace injury.
  1. [73]
    Likewise, whilst the Appellant has argued the medical evidence, in particular the contemporaneous notes recorded by Drs Kah Ho, Fullerton and Andal, is compelling in respect of how and where the injury arose, a close review of these notes indicate that whilst there are some references to the nature of Mr Raines' work  recorded in the notes that were made following appointments or examinations around that time, there are no definitive comments by any of the doctors at that time linking the shoulder pain directly to a particular incident that occurred in the workplace.  Certainly, there is no reference to the C-section machine or a specific incident mentioned by Mr Raines that contributed or led to his shoulder pain.
  1. [74]
    In fact, as time moves on, the language used by Dr Winstanley and to a lesser extent Dr Andal in their correspondence and notes in relation to the history of the injury, tends to move further away from any reference to Mr Raines’ workplace.  It's not until one considers Dr Robinson's report, which was prepared a year after the incident and based on the history reported to him by Mr Raines after he lodged his claim and after he had resigned his employment, that there are any specific details reported by Mr Raines to a Doctor in respect of the C-section machine and his recollection of how he first hurt his shoulder.
  1. [75]
    In support of his position that Mr Yelaska was aware of his shoulder injury and its workplace origins, Mr Raines pointed to a cheque for $475 for a specialist medical appointment which he claims Mr Yelaska authorised.  I'm not convinced however that either Mr Yelaska or Mrs Yelaska were aware of the cash cheque for $475.  The evidence shows Mr Raines personally made out a cheque for $475 in circumstances where he had access to the company cheque book, oversaw the preparation of cheque listings and was afforded a significant amount of trust and autonomy in the business.  Mr Raines also held all of the employer's accounting records (within a MYOB accounting system) on a computer which he alone accessed.  Whilst Mr Raines said the cheque was initially intended to pay for a specialist appointment with Dr Winstanley, he then claimed the consultation was bulk billed and that he had utilised a portion of the cashed cheque for fuel and food.  However, this doesn't entirely ring true in circumstances where Mr Raines was already able to access a fuel card paid for by the business.
  1. [76]
    Further matters of credit arose around the Mr Raines' evidence that in December 2013, therefore some months after his alleged injury of 13 August 2013, he undertook the construction of a shed/office at the workplace.  Mr Crossley's evidence was the Appellant was able to complete his duties (i.e. going up and down a ladder carrying various tools) without any obvious problems.  Whilst Mr Raines claimed he had complained about performing some of the work on this shed/office, there was no evidence produced from any witness to that effect. 
  1. [77]
    As such, having regard to all the evidence I am not persuaded the shoulder injuries complained of by Mr Raines arose out of or in the course of undertaking the Csection tasks.  Further, whilst Dr Robinson was prepared to link the tendonitis suffered by Mr Raines to the work he undertook, he acknowledged his opinion was predicated on the basis of the information reported to him by the Appellant.
  1. [78]
    The evidence supporting a link between Mr Raines work associated with the Csection machine and the onset of a para labral cyst on his left shoulder was even less convincing. 
  1. [79]
    As such I am not satisfied the Appellant has demonstrated he suffered a personal injury on 13 August 2013 that arose out of, or in the course of his employment, or that his employment was a significant contributing factor to the injury.  Consequently, I conclude the Appellant did not suffer a physical injury of the type referred to in s 32(1) of the Act.
  1. [80]
    Accordingly I order:

(i)the appeal is dismissed;

(ii)the decision of the Regulator dated 19 May 2104  is confirmed; and

(iii)the Appellant is to pay the Respondent's costs of and incidental to the appeal to be agreed.  In the event agreement cannot be reached between the parties with respect to the costs the Appellant has the liberty to apply.

Footnotes

[1] [2015] QIRC 053.

[2] Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48.

[3] (2004) 177 QGIG 769.

[4] (C/2012/35) - Decision .

[5] (1997) 156 QGIG 100.

[6] 186 QGIG 512 [513].

[7] McDonald v Q-COMP (2008) 188 QGIG 180.

[8] Transcript of proceedings, Christopher Raines v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/193, 1 October 2014)22 (T.L.Ryan).

[9] Transcript of proceedings, Christopher Raines v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/193, 2 October 2014)37 (Dr P. Winstanley).

[10] Transcript of proceedings, Christopher Raines v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/193, 2 October 2014) 23 (Dr M.W. Robinson).

[11] Transcript of proceedings, Christopher Raines v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/193, 2 October 2014) 24 (Dr M.W. Robinson).

Close

Editorial Notes

  • Published Case Name:

    Christopher Raines v Simon Blackwood (Workers' Compensation Regulator)

  • Shortened Case Name:

    Christopher Raines v Simon Blackwood (Workers' Compensation Regulator)

  • MNC:

    [2015] QIRC 128

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    10 Jul 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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