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UAM Pty Ltd v The Workers' Compensation Regulator[2015] QIRC 209

UAM Pty Ltd v The Workers' Compensation Regulator[2015] QIRC 209

 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

UAM Pty Ltd v the Workers' Compensation Regulator [2015] QIRC 209

PARTIES:

UAM Pty Ltd

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2013/411

PROCEEDING:

Appeal against decision of Regulator

DELIVERED ON:

4 December 2015

HEARING DATES:

10, 11 and 12 June 2014 and 5 July 2015

Respondent's submissions 24 June 2015

Appellant's submissions 15 July 2015

Respondent's submissions in reply 30 July 2015

MEMBER:

Deputy President O'Connor

ORDERS:

  1. The appeal is upheld;
  2. The decision of the Respondent dated 26 November 2013 be set aside;
  3. The claim for compensation by Matthew King is not one for acceptance; and
  4. The Respondent is to pay the Appellant's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission. 
 

WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF REGULATOR – Where the Regulator accepted the worker's application for compensation – Where the employer appealed this decision – Whether the worker sustained an injury within the meaning of that term in s 32 of the Act – Whether the worker was a credible witness – Appeal allowed.

CASES:

Workers' Compensation and Rehabilitation Act 2003, s 32

Brandi v Mingot (1976) 12 ALR 551

Goldsmith v Sanderlands (2002) 76 ALJR 1024

Jones v Dunkel (1959) 101 CLR 298.

Manly Council v Byrne & Anor [2004] NSWCA 123, [51]

Nicholls v The Queen (2005) 219 CLR 196

Palmer v The Queen (1998) 193 CLR 1

APPEARANCES:

Mr J.S. Miles, Counsel instructed by Hentys Lawyers for the Appellant.

Mr R.J. Clutterbuck, Counsel directly instructed by the Workers' Compensation Regulator.

   Decision

  1. [1]
    Mr Mathew King was employed as an Asset Inspector by UAM Pty Ltd ("the Appellant") and was based in Toowoomba from July 2008 to February 2013.
  1. [2]
    On or about 6 October 2012, Mr King claims to have suffered a workplace injury to his back as a consequence of "leaning forward and bending down to measure the girth of the power pole"[1].
  1. [3]
    By a letter dated 26 November 2013, the Review Unit of the Workers' Compensation Regulator ("the Regulator") confirmed WorkCover's decision to accept Mr King's application for compensation.
  1. [4]
    This is an appeal made under the Workers' Compensation and Rehabilitation Act 2003 ("the Act") against the decision of the Regulator.
  1. [5]
    The Appellant contends that the Mr King's injury did not arise out of or in the course of his employment.

Statutory Provisions and Onus of Proof

  1. [6]
    The appeal has to be decided by reference to s 32 of the Act which, at the time material to the Appellant's application for compensation, relevantly provided:

"32 Meaning of injury

  1. (1)
    An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.

…

  1. (3)
    Injury includes the following -
  1. (a)
    a disease …
  1. (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 -
  1. (i)
    a personal injury;
  1. (ii)
    a disease;
  1. (iii)
    a medical condition if the condition becomes a personal injury or disease because of the aggravation;

…

  1. (4)
    For subsection (3)(b) 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. [7]
    As with any appeal to the Commission against a decision of the Regulator, the nature of the appeal is by way of hearing de novo. 
  1. [8]
    The Appellant bears the onus of proof.
  1. [9]
    It is accepted by the Appellant that Mr King was a 'worker' within the meaning of the Act.
  1. [10]
    The issue for determination by the Commission is whether the worker has sustained an "injury" within the meaning of that term in s 32 of the Act.

The Appellant's Case

  1. [11]
    Mr King told the Commission that on 6 October 2012, in performing his role as an Asset Inspector, he was inspecting power poles at a site some 20 kilometres from Dalby.
  1. [12]
    Having regard to the age of the poles being inspected, it was a case of conducting a visual inspection or a "dig and fill".  Mr King said that it was necessary to dig around the pole to a depth of 500 millimetres, measuring the girth and then back filling the hole with soil. 
  1. [13]
    At approximately 9.00 or 10.00 am, Mr King said that he was bent down measuring the girth of the pole and "… as I've come back up I felt pain in me back and tingles go down the back of my legs."[2]
  1. [14]
    In the Hazard and Incident Investigation Report dated 6 October 2012[3], Mr King stated that the incident occurred as a result of "constant shovelling black soil 'Back Filling'" and answered the question "What was the employee doing at the time?" - with the answer "working on the shovel".
  1. [15]
    In the WorkCover Queensland Claim form[4] also dated 6 October 2012, Mr King, in answer to the question "How did the injury happen?" said "Bending down around base of pole".
  1. [16]
    In a signed Record of Conversation of Mr King dated 8 October 2012[5] it states that "MK believes that he hurt his back from constant back filling on Sat 6th October at approx 10am."
  1. [17]
    In cross-examination, Mr King said that he was not backfilling at the time of the injury but rather measuring the girth of the poll which was another procedure in conducting the audit.
  1. [18]
    Mr King was asked in cross examination: "Did you shout out in pain? --- No. Well, I didn't want to look like a big pussy - so - I didn't want to look like a girl, so --- So you didn't even grunt? --- I said my bloody back. That's what I said. I said - and the boys come over and I said I hurt my back and then Paul come down from the digger."[6]
  1. [19]
    Mr King was part of a three man crew working on Saturday 6 October 2012.  Mr Adam Lea, was employed as a trainee asset inspector with the Appellant.  On 6 October 2012, Mr Lea's function was to complete tasks on the Personal Digital Assistant (PDA).  The third member of the crew was Mr Paul Edwards who undertook the responsibilities of a trade's assistant.
  1. [20]
    Neither Mr Lea nor Mr Edwards saw any incident on 6 October 2012.  Their evidence to the Commission was based upon what Mr King had told them.  Their recollections differed as to when Mr King told them when he had been injured.
  1. [21]
    Mr King was clear in his evidence to the Commission that he did not delay in telling either Mr Lea or Mr Edwards that he had been injured.
  1. [22]
    The Commission was told by Mr King that Mr Lea was in close proximity to him, such that: "Well, he come up and ask me.  So, yeah.  I've hurt my back, mate."[7]  Mr Lea denied asking Mr King how he was injured.[8]
  1. [23]
    Mr Lea in his evidence said "There was no specific incident that I can recall that would cause his injury".[9]  He did observe a change in Mr King's demeanour during the morning.  Mr Lea said that around 10.00 am he was told by Mr King that he had hurt his back.  Mr Lea observed that during the course of the day, Mr King began to limp and "He wasn't as fast in undertaking his duties".[10]
  1. [24]
    In cross examination, Mr Lea was asked:

"Mr Lea, did Mr King tell you at the time he mentioned his back injury to you on the 6th of October 2012 that he'd done it some time earlier? ---No.

You don't - he didn't mention when it happened specifically? --- He mentioned that he hurt his back ---

 Right? --- after we'd been on site for a few hours.

 …

Okay.  And you've already told the Commission that you were not aware of it, didn't see how it he did it? ---That's correct.

 You didn't hear him call out in pain either? ---No."[11]

  1. [25]
    Mr Edwards told the Commission that on 6 October 2012 he was responsible for backfilling.  He said that he was working some distance ahead of Mr King and Mr Lea. It was not until mid or late morning and somewhere around 10.00 am to 11.00 am that Mr Edwards became aware that Mr King had suffered a back injury.[12]
  1. [26]
    In a statement given by Mr Edwards on 8 October 2012[13] it is recorded:

"MK said his back was playing up.  PE asked how he did it.  MK said probably over exurtion (sic) from shoveling (sic) dirt back in hole."

  1. [27]
    On 3 December 2012, Mr Edwards gave a further statement indicating that Mr King's injury was as a result of measuring the girth of the power pole.  When asked why his recollection of the nature of the injury had changed, Mr Edwards responded that he could not give a definitive answer why the two statements contradicted each other.[14]
  1. [28]
    Ms Jennifer Tronson was employed by the Appellant as a business support officer.  She told the Commission that on Friday 5 October 2012, she had a conversation with Mr King in which he said that he was working on Saturday but proposed going jet skiing on Sunday.  Around 7.00 am on Monday, 7 October 2012, Ms Tronson told the Commission that she saw Mr King completing some paperwork.  He said: "… he had done his back in on Saturday", which he said was caused by digging some 40 poles.  Ms Tronson also told the Commission that Mr King said that he had gone jet skiing on Sunday even though his back was sore as he was dosed up on painkillers.
  1. [29]
    On 9 October 2012, Ms Tronson sent an email[15] to Ms Carley Frost, a scheduler with the Appellant, outlining her conversation with Mr King.  Ms Tronson told the Commission that she sent the email at the request of Ms Frost, as Ms Frost thought the information was important.
  1. [30]
    Mr King said that on Sunday 7 October 2012, he "….laid in bed all day having painkillers and had my ex-partner's mother rubbing Tiger Balm, heat packs and all that type of jazz on my back.  Yeah.  So I had a lot of painkillers that day."[16]  Mr King rejected outright the suggestion that he had travelled to Somerset Dam on that day to Jet Ski.
  1. [31]
    It was submitted by the Regulator that the theory behind the jet skiing is wholly dependent upon the reliability of the evidence of Ms Tronson, whose evidence, it was submitted, ought to be discarded in light of the evidence of Mr Lea.
  1. [32]
    Mr King maintained in his evidence that he did not return to the depot on the afternoon of Friday 5 October 2012, but rather travelled back to his residence with Mr Edwards.  Mr King denied having a conversation with Ms Tronson.
  1. [33]
    The evidence of Mr Edwards was equivocal as to whether or not he returned to the depot on Friday afternoon.  There was nothing exceptional or memorable about that Friday afternoon.  Mr Edwards could not recall whether he went back to the depot with Mr King or went immediately back to his residence.
  1. [34]
    Mr Lea's evidence was that he did not return to the depot on the afternoon of Friday 5 October 2012.  He said that he took the digger home with him so that he could have an early start opening up a few poles on Saturday morning.  Whilst Mr Lea accepted that there was a need to return to the depot from time-to-time, he could not recollect any need to do so on the Friday afternoon.  His recollection was that a swap of gear and the Nissan Patrol with the digger attached would have happened on the Dalby-Cecil Plains Road on Friday afternoon, with Mr King and Mr Edwards returning together in the Colorado.
  1. [35]
    In cross-examination, it was put to Mr King that during the luncheon adjournment on day three of the hearing, whilst under cross-examination and notwithstanding the warning given by counsel for the Regulator, he discussed aspects of the case with Mr Lea and Mr Edwards.
  1. [36]
    Mr King originally denied speaking to "anyone about anything".  However, later in cross-examination agreed that he had spoken to both Mr Lea and Mr King, but only about "power poles actually, believe it or not".[17]
  1. [37]
    Both Mr Lea and Mr Edwards agreed that Mr King had spoken to them during the luncheon adjournment about the hearing.
  1. [38]
    Mr Lea said he had a conversation with Mr King prior to giving evidence.  Part of that conversation included a discussion concerning the allegation that Mr King had gone jet skiing on Sunday 7 October 2012 and that Jennifer Tronson and Carley Frost had given evidence.  Mr Lea agreed that Mr King had told him that Jennifer Tronson had given evidence that she had a conversation with him about going jet skiing on Sunday 7 October 2012.
  1. [39]
    Whilst Mr Lea denied any suggestion that he was encouraged to give any particular evidence, it does leave some doubt in my mind as the exact nature and extent of the discussion and, as a consequence, the reliability of the evidence of Mr Lea in regard to the events of the afternoon of 5 October 2012.
  1. [40]
    The submission of the Regulator is that "Ms Tronson's evidence ought to be considered with great caution as it is clear that her recollection of events is entirely unreliable or is untrue."  In support of that submission, reference is made to the evidence of Mr Lea and the evidence where she said "I don't believe it was necessary for the conversation - no".  The Regulator submitted that the statement demonstrated the real possibility of contrived evidence which in light of the previous submission, renders her testimony wholly unreliable."
  1. [41]
    I do not accept the submission of the Regulator that the statement supports a conclusion that her evidence was contrived.  Ms Tronson was asked in cross-examination the following:

"What did he specifically say to you? ---He told me that he - I asked him - he was holding his back ---

Yes? ---- filling in paperwork and I asked him what was wrong with his back and he told me that he had done it in on the weekend digging the poles ---

Yes? --- or doing 40 poles and then I meant - I asked him if he got around to skiing, because he had mentioned that's what he would have be doing on Sunday, and he said yes, but that he was dosed up on painkillers. So he did mention to me that he had gone.

And did he tell you where he had gone? ---No

He didn't tell. All right? --- I don't recall.

Right. You didn't think to ask him where he had gone? --- I don't believe it was necessary for the conversation, no.

….

All right. Ms Tronson, you were aware, were you not, that he made a claim for workers compensation? --- I - I wasn't aware, no.

When did you become aware? --- Probably a couple of months ago.

Were you aware, on the 9th of October 2012, about the possibility of a claim for compensation? --- No, I wasn't."[18]

  1. [42]
    It cannot be said, in my view, that the above passage supports a conclusion that Ms Tronson's evidence was contrived.
  1. [43]
    I found Ms Tronson to be a reliable witness and I accept her evidence that she had a conversation with Mr King during which he told her that he had gone jet skiing on Sunday 7 October 2012.

Failure to call Mr Gary Page

  1. [44]
    Counsel for the Regulator submitted that the Commission should draw a Jones v Dunkel[19] inference in relation to failure of the Appellant to call Mr Gary Page.
  1. [45]
    Counsel for the Regulator submitted that the Commission was entitled to draw an inference that the uncalled evidence would not have assisted the Appellant's case.
  1. [46]
    The principle in Jones v Dunkel at its most fundamental is usually understood as an inference that can arise against a party who elects not to adduce evidence on a matter in issue.  Windeyer J, at 320 to 321, embraced the notion of "fear of exposure" on the part of the party who fails to call the witness, quoting Wigmore on Evidence:

"The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstances or document or witness, if brought, would have exposed facts unfavourable to the party."[20]

  1. [47]
    In Manly Council v Byrne & Anor[21],  Campbell J cited the joint judgment of Gibbs A-CJ, Stephen, Mason and Aickin JJ in the High Court's decision in Brandi v Mingot[22]  to support the proposition that:

"Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn."[23]

  1. [48]
    Whilst the authorities clearly support, in appropriate cases, the drawing of an adverse inference, I am not of the view that this case is one of them.  The Appellant's case was that there was an absence of a contemporaneous report of the incident to co-workers.   It was not argued by the Appellant that Mr King did not report the incident to Mr Page as it was suggested.  There is no basis to dispute the evidence of Mr King that he reported to incident to Mr Page as he said.  Albeit later than he had originally suggested. The reporting of the incident is not proof that the incident occurred but merely that Mr King reported an incident to Mr Page. 
  1. [49]
    It was submitted by the Regulator that Mr Page was an important witness.  He was  Mr King's supervisor but was not on site on 6 October 2012, and therefore did not witness the incident.  He participated in the record of conversation along with Ms Frost (who gave evidence) and the signed records of conversation were tendered. Both Mr Lea and Mr Edwards accepted that the records of conversation were an accurate record of the conversation.  Importantly, as noted above, there was no real dispute that Mr King telephoned Mr Page and left a message that he had hurt his back. In the circumstances, I am not convinced that there is any basis upon which an adverse inference could be draw.

Incident in 2008

  1. [50]
    Mr King said that he was injured in a work related accident sometime in October 2008 as a result of moving a soil tarp.  As a consequence, he said he suffered a crushed disc.  He said he was taken to St Andrew's Hospital (Toowoomba) or a medical centre associated with the hospital.  No x-rays, CT scans or MRI scans were performed.[24]
  1. [51]
    His evidence was that he was off work for 12 to 16 weeks. He said:

"They took me to the hospital and everything like that, and then they put me up into a room - into a cabin in Toowoomba and made me stay there on a high dose of pain killers."[25]

  1. [52]
    In cross-examination Mr King gave the following evidence in relation to the 2008 incident:

"DEPUTY PRESIDENT: Sorry, Mr King, you said - just correct if I am wrong? --- Yeah.

 You said 12 to 16 weeks or thereabouts you were off work? --- Yes

 Is that correct? --- Yes, that's correct.

And you lived in Toowoomba during that time? --- Well, majority of that time, your Honour, yeah, I did.

 You didn't ---? ---Like, of work time I did.

You didn't go home, though? ---Yes, I did go home on my days off, that I had for Friday, Saturday, Sunday.

 But I thought you were off work for 12 to 16 weeks? ---No---

Which means you're not working at all? ---No, I'm not working at all. But they had to keep me in a place there for - like, I don't know if it was a couple of days or a couple of weeks. I don't know. I can't remember. It's that long ago.

…

But you didn't go home? ---It wasn't full off work duties. So I had, like - what can I say, light duties involved in that 12 to 16 weeks. So I wasn't full - on full capacity of work. That's what I mean by 12 to 16 weeks.

Well, how long did you not work, and then how long did you work on - be it either half-time or part-time, or whatever. Can you recollect? ---Couldn't tell you, your Honour. I would be lying again. I couldn't tell you. If - like, when - when I got on first of light duties, I couldn't tell you."[26]

  1. [53]
    In relation to the 2008 incident, Dr Ballenden records in his report of 20 November 2012[27]:

"He says he 'crushed a disc' in 2008.  He was off work 12 weeks that time.  He says there was no WorkCover claim and that the company 'just paid him'.  He had no investigations at that time but thinks he did have physiotherapy and he feels he made a full recovery."

  1. [54]
    Dr Walters records in his report of 31 July 2013[28]:

"He told me of three injuries, one in 2008 when he had a back pain after lifting a tarpaulin.  He had two weeks off work and then returned to normal duties.  In 2010 a truck bumped him and he hurt his back but he was only off for one day.  No investigations were performed.  He thinks he had an x-ray in 2008 but not subsequently."[29]

  1. [55]
    Mr Cunningham, the Quality Health Safety and Environment Manager for the Appellant gave evidence that according to their records, Mr King commenced employment with the Appellant on 14 July 2008 and did not take leave in 2008.
  1. [56]
    Mr King said that the 2008 incident was not a Workers' Compensation claim as the company just kept paying him.
  1. [57]
    In his evidence before the Commission, Mr Cunningham could find no information concerning an alleged injury to Mr King in 2008.
  1. [58]
    The Regulator argued that the records held by the Appellant showing that no leave was taken in 2008 was consistent with Mr King's belief that he was paid by his employer without a formal Workers' Compensation application being submitted.  It is, of course, also consistent with Mr King not suffering any work related injury in 2008.
  1. [59]
    I do not accept the evidence of Mr King in relation to the 2008 incident.  His evidence was vague, inconsistent and exaggerated.  It would, in my view, be improbable that having regard to the type of injury allegedly suffered by Mr King in 2008 that a Workers' Compensation claim would not have been submitted by the Appellant.  This is particularly so having regard to the evidence of Mr King that he was off work for between 12 to 16 weeks (either on half-time or light duties), was hospitalised at St Andrews Private Hospital, underwent extensive physiotherapy[30] and was kept in a cabin for an extended period of time on painkillers.

 The Telephone records

  1. [60]
    It was submitted by Counsel for the Appellant that Mr King journeyed from his home at Yamato to his brother's house in Kilcoy on 7 October 2012, the day following his alleged injury. It was the Appellant's argument that Mr King travelled to Somerset Dam to engage in jet skiing.
  1. [61]
    The Regulator has submitted "…that the evidence does little to enhance the applicant's case as the only basis upon which it can be received as an exception to the collateral evidence rule is to demonstrate that the testimony of the employee is biased in favour of the party calling him." 
  1. [62]
    In Nicholls v The Queen[31], McHugh J made a number of comments regarding how the collateral evidence rule should be viewed.  In discussing the common law rule, his Honour pointed to the pragmatic origin of the rule "as a rule of convenience—a rule for the management of cases—rather than a fixed rule or principle"[32] and continued:

"The finality rule is important to the efficient conduct of litigation. Without it, the principal issues in trials would sometimes become overwhelmed by charge and counter-charge remote from the cause of action being litigated.  In many cases, the finality rule also protects witnesses from having to defend themselves against discreditable allegations that are peripheral to the issues. But the common law should not have any a priori categories concerning the cases where the collateral evidence rule should or should not be relaxed.  It should be regarded as a flexible rule of convenience that can and should be relaxed when the interests of justice require its relaxation.  Avoiding miscarriages of justice is more important than protecting the efficiency of trials."[33]

His Honour concluded:

"[E]vidence disproving a witness’s denials concerning matters of credibility should be regarded as generally admissible if the witness's credit is inextricably involved with a fact in issue.  Consistently with the case management rationale of the finality rule, however, a judge may still reject rebutting evidence where, although inextricably connected with the fact in issue, the time, convenience or expense of admitting the evidence would be unduly disproportionate to its probative force.  In such cases, the interests of justice do not require relaxation of the general rule that answers given to collateral matters such as credit are final."[34]

  1. [63]
    Gleeson CJ in Goldsmith v Sanderlands[35] wrote:

"The primary rule of evidence is that a court will receive, and will only receive, evidence that is relevant to the issues as defined by the pleadings.  Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding. The general rule that relevant evidence will be received is qualified by other rules based upon considerations of justice, or practicality."[36]

  1. [64]
    It was part of the Appellant's case that, on 7 October 2012, a day after he is alleged to have suffered a back injury, Mr King went jet skiing "… even though his back was sore as he was dosed up on painkillers."  Ms Tronson gave evidence to that effect.
  1. [65]
    The key fact in issue is whether Mr King suffered a work related injury to his back on 6 October 2012.  Whether Mr King went jet skiing on Sunday 7 October 2012 is a fact relevant to the fact in issue.  Whilst engaging in the jet skiing on Sunday is not in itself proof that he did not suffer a work related injury on 6 October, together with other evidence before the Commission, it could rationally affect the probabilities as to whether he was injured on 6 October 2012.  The evidence upon which the Appellant relies to establish the fact relevant to the fact in issue included: evidence of an admission by Mr King to Ms Tronson (which was denied by Mr King); and the medical evidence which suggests that given the severity of the symptoms that Mr King reported having experienced at the time of the injury, it would have been highly improbable[37] that he could have engaged in jet skiing the day immediately after being injured.
  1. [66]
    Mr King accepted in cross-examination that he owned a Jet Ski, he was a jet skier and would go to Somerset Dam to Jet Ski with his brother, Simon King who lived in Kilcoy.
  1. [67]
    The evidence of Mr Cunningham was that according to the telephone records of the Appellant for Sunday 7 October 2012, Mr King's work issued mobile telephone was recorded as being used at 7:59 am, 8:00 am and 9:30 am from Raceview East and at 11:15 am and 3:47pm from Kilcoy East.[38]  The mobile telephone number dialled was identified as belonging to Mr Simon King.  Somerset Dam is in the Kilcoy area.  There were a series of other calls from 3:43 pm to 3:47 pm which were identified as calls to RACQ Road Assist.
  1. [68]
    Counsel for the Regulator objected to the telephone records being used on the basis that there was no evidence to confirm whether the reference to Kilcoy East referred to a Telstra tower that was a receiver or an originator.
  1. [69]
    The Appellant sought an expert report from Professor Coutts, a Telco Subject Matter Expert.  Professor Coutts in his written report of 29 January 2015[39], confirmed that having regard to the GSM technology it was "highly likely" the phone issued by the Appellant to Mr King travelled north from Yamanto to Kilcoy on 7 October 2012.
  1. [70]
    The evidence of Professor Coutts together with the evidence contained in the Appellant's telephone records support the submission that Mr King made a return trip between Yamanto and Kilcoy on 7 October 2012, despite his evidence that he "…laid in bed all day having painkillers…"[40]

 The Medical Evidence

  1. [71]
    Mr King told the Commission that he saw Dr Scandrett, a General Practitioner at the Riverlink Medical Centre on 8 October 2012 at around 9.20 pm. She issued him a medical certificate for "low back pain? Discogenic".  Dr Scandrett told the Commission that his symptoms were consistent with the stated cause of his injury.[41]
  1. [72]
    Dr Scandrett saw Mr King again on Friday 9 November 2012, when she issued him with a medical certificate for a restricted return to work on suitable duties between     9 November and 23 November 2012.  The limited duties listed in the medical certificate included very limited bending, no prolonged sitting or standing, six hours per day at own pace and work within Ipswich region with no long car trips.
  1. [73]
    The evidence of Mr King was that notwithstanding the restriction on long car travel, he made a car trip between Yamanto and Cunnamulla on 10 November 2012, a trip of some 700 to 800 kilometres.  Dr Scandrett said in reply to a question from Counsel for the Appellant:

"That's not something you'd expect him to be able to do with the symptoms he complained of, is it? --- Well, not if he was unable to get himself an hour and a half to work, no; I would not have expected that he would have done that."[42]

  1. [74]
    Dr Ballenden in his report of 20 November 2012 states:

"This man performed a simple bend.  He was not performing manual labour.  He was not digging, scratching, lifting or straining in any way.  Bending is a physiological day-to-day function.  When he stood up he developed pain in his back.  This suggests a natural progression of constitutional change in the lumbar spine, unrelated to his work activities, evidence based research shows occupational and sport has a relatively minor role in disc degeneration, beyond that of upright postures and routine activities of daily living.  Recent research indicates that heredity has a dominant role in disc degeneration.

There is no point of investigating this man now as his condition has resolved and investigations are really only worthwhile if they are likely to change the outcome of a condition or change treatment intervention."[43]

  1. [75]
    Dr Ballenden records in his report of 20 November 2012 that Mr King had reported to him that he had a "crushed disc" in 2008 and was off work for 12 weeks.  In his oral evidence, Dr Ballenden also confirmed that he saw no radiological evidence from the injury in 2008.
  1. [76]
    Dr Ballenden gave the following evidence:

"When you saw Mr King, doctor, it was Tuesday, the 20th November 2012.  Did he report those symptoms to be persisting? --- No.

No? --- He, in fact, reported that he was symptomless and was expecting to be sent back to work within two or three days he was due to see his doctor within two or three days.

Given the symptoms that he reported having experienced at the time of the injury and in the weeks following it are you able to comment about the recovery time? ---It would be highly unusual to show a complete recovery in that period of time, although with referred pain, which is different from radicula type of pain that he described, can be from more minor injuries and recover more quickly.  It does refer to below the knee and that might have recovered in a short period of time.  But given the severity of his initial reporting, it would've very unusual to show a recovery in under three to four months.  The statistics suggest 90 percent of people recover within that time with a radicula presentation, in other words, with nerve root compression.  The other 10 percent go on to surgical intervention for the most part."[44]

  1. [77]
    On whether or not Mr King suffered an aggravation of some pre-existing injury or degeneration, Dr Ballenden, in a series of answers to questions from counsel for the Regulator said:

"…. I'm not entirely sure whether you answered this, but a pre-existing injury in 2008 could have well have been an aggravation of that, bearing in mind the nature of the work that he had been performing through the course of that week and the movement that he may have taken that particular day? --- That- that is possible.  If-if there is a continuing of degeneration, I'd have to have a look at the - in the radiology - the radiological evidence from 2008, but I couldn't comment ---

  No? ---a pre-existing or degeneration at all is an assumption."[45]

  1. [78]
    Dr Walters expressed the view in his written report of 31 July 2013[46] that:

"The diagnosis is not definite because we have seen no investigations and they are not justified for treatment purposes at the moment.  He probably has an injury to one of his lumbar discs.  This would probably be an aggravation of a pre-existing degenerative disc."

He goes on to conclude:

"I think his symptoms were an aggravation of pre-existing early degeneration in his lumbar spine."

  1. [79]
    The conclusion was made in the absence of radiological evidence and based on the history given to Dr Walters by Mr King.
  1. [80]
    In examination-in-chief, Dr Walters was referred to the report of Dr Ballenden and asked:

"And at the top of page 2 Dr Ballenden records that Mr King told him the pain was severe and intense, radiated down the back of his right leg and all the way to the foot, a burning sensation with pins and needles, and then moved from the right leg to the left leg, and he had the same feeling there which lasted for two weeks. So, firstly, you made comment earlier on, before I referred you to Dr Ballenden's report, that the symptoms didn't last very long? --- Yeah.

Is that - do I understand your evidence correctly; that that was what you were saying? --- Well, by - I didn't see him, of course, till a year---

About 10 months you saw him - 10 months later? ---10 months later, by which time he had no lower limb - no lower limb symptoms at all.

No. No. But if he had severe pain and a burning sensation, with pins and needles in the right leg, and then that transferring to the left leg, would you regard the recovery time to becoming symptom free by the time Dr Ballenden saw him on 20th November 2012 as a relatively quick recovery time? ---Yes, I would ---"[47]

  1. [81]
    By 30 November 2012, Dr Scandrett had certified Mr King as being "…fully recovered from episode".[48]

 Conclusions

  1. [82]
    I have formed the view that the Appellant has discharged the onus of establishing, on the balance probabilities, that Mr King did not sustain an injury within the meaning of s 32 of the Act on 6 October 2012.
  1. [83]
    This case is, in my view, essentially one of credit.  The credit of Mr King.  I had the opportunity of observing Mr King giving his evidence before the Commission.  I found him to be an unreliable witness.  I was left with the clear impression that he was prepared to say what was necessary to support his position.  His evidence was contradictory, evasive, and full of exaggeration.
  1. [84]
    The evidence given by Dr Ballenden and Dr Walters does not, in my view, support a conclusion that Mr King suffered an injury as alleged on 6 October 2012.  Dr Ballenden, in particular, who saw Mr King some weeks after he claimed to be injured was in the best position to establish the extent of his injury.  He concluded that having regard to the symptomatology as described by Mr King, it would be "very unusual" to have made such a speedy recovery.
  1. [85]
    Neither Mr Lea nor Mr Edwards saw Mr King injure himself.  Their evidence differed from Mr King in relation to when and how he reported his injury.
  1. [86]
    Mr Cunningham's evidence was that according to the company records, Mr King did not take leave in 2008.  Mr King's account of suffering a crushed disc in a work related accident in 2008 was not supported by any medical evidence and indeed his suggestion that he was placed in a cabin by two employees of UAM for an extended period of time and kept on high doses of painkillers could only be described as fanciful.
  1. [87]
    Having formed the view that Mr King was not a witness of credit and having regard to the other evidence as set out above, I cannot conclude that he suffered an injury on 6 October 2012 as alleged.  It therefore follows that the appeal should be allowed.

 Orders

  1. [88]
    I make the following orders:
  1. The appeal is upheld;
  2. The decision of the Respondent dated 26 November 2013 be set-aside;
  3. The claim for compensation by Matthew King is not one for acceptance; and
  4. The Respondent is to pay the Appellant's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission. 

Footnotes

[1] T2-43 Ll.10-11.

[2] T2-67 Ll.9-10.

[3] Exhibit 13.

[4] Exhibit 12.

[5] Exhibit 7.

[6] T2-98 Ll.1-3.

[7] T2-98 Ll.9-10.

[8] T3-124 Ll.6-7.

[9] T3-109 L.20.

[10] T3-123 Ll.4-6.

[11] T3-124 Ll.16-30.

[12] T3-114 Ll.42-44.

[13] Exhibit 34.

[14] See T3-116 Ll.16-45, T3-117 Ll.1-16.

[15] Exhibit 5.

[16] T2-74 Ll.20-22.

[17] T3-77 Ll45-46.

[18] T1-39 Ll.41-45, T1-40 Ll.1-22.

[19] Jones v Dunkel (1959) 101 CLR 298.

[20] Ibid, 320-321.

[21] Manly Council v Byrne & Anor [2004] NSWCA 123.

[22] Brandi v Mingot (1976) 12 ALR 551.

[23] Manly Council v Byrne & Anor [2004] NSWCA 123, [51].

[24] T2-85 Ll.44-47.

[25] T2-46 Ll.13-16.

[26] T3-4 Ll.35-45, T3-5 Ll.1-23. 

[27] Exhibit 1.

[28] Exhibit 3.

[29] See T2-47 Ll.14-26.

[30] T2-46 L.33.

[31] Nicholls v The Queen (2005) 219 CLR 196.

[32] Ibid, [53].

[33] Ibid, [55].

[34] Ibid, [56].

[35] Goldsmith v Sanderlands (2002) 76 ALJR 1024.

[36] Digest of the Law of Evidence, 5th ed (1887), Art 1 at 2, see also McHugh J in Palmer v The Queen (1998) 193 CLR 1 at 24 [55].

[37] T2-19 Ll.2-3.

[38] Exhibit 19.

[39] Exhibit 37.

[40] T2-74 L20.

[41] T2-52 Ll.7-8.

[42] T2-59 Ll.25-27.

[43] Exhibit 1.

[44] T2-18 Ll.12-29.

[45] T2-23 Ll.33-41.

[46] Exhibit 3.

[47] T2-64 Ll.26-42.

[48] Exhibit 29.

Close

Editorial Notes

  • Published Case Name:

    UAM Pty Ltd v The Workers' Compensation Regulator

  • Shortened Case Name:

    UAM Pty Ltd v The Workers' Compensation Regulator

  • MNC:

    [2015] QIRC 209

  • Court:

    QIRC

  • Judge(s):

    O'Connor DP

  • Date:

    04 Dec 2015

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Brandi v Mingot (1976) 12 ALR 551
2 citations
Jump To
Cite 1 - (1976) 12 ALR 551
Cite 2 - (1976) 12 ALR 551
Goldsmith v Sandilands (2002) 76 ALJR 1024
2 citations
Jump To
Cite 1 - (2002) 76 ALJR 1024
Cite 2 - (2002) 76 ALJR 1024
Jones v Dunkel (1959) 101 CLR 298
3 citations
Jump To
Cite 1 - (1959) 101 CLR 298
Cite 2 - (1959) 101 CLR 298
Cite 3 - (1959) 101 CLR 298
Manly Council v Byrne [2004] NSWCA 123
3 citations
Jump To
Cite 1 - [2004] NSWCA 123
Cite 2 - [2004] NSWCA 123
Cite 3 - [2004] NSWCA 123
Nicholls v R (2005) 219 CLR 196
5 citations
Jump To
Cite 1 - (2005) 219 CLR 196
Cite 2 - (2005) 219 CLR 196
Cite 3 - (2005) 219 CLR 196
Cite 4 - (2005) 219 CLR 196
Cite 5 - (2005) 219 CLR 196
Palmer v The Queen (1998) 193 CLR 1
2 citations
Jump To
Cite 1 - (1998) 193 CLR 1
Cite 2 - (1998) 193 CLR 1

Cases Citing

Case NameFull CitationFrequency
Watpac Construction Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2021] QIRC 2573 citations
1

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