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JBS Australia Pty Limited v Workers' Compensation Regulator[2017] QIRC 26

JBS Australia Pty Limited v Workers' Compensation Regulator[2017] QIRC 26

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

JBS Australia Pty Limited v Workers' Compensation Regulator [2017] QIRC 26

PARTIES: 

JBS Australia Pty Limited

(Applicant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2016/176

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

3 April 2017 

HEARING DATES:

23, 24, 25 January 2017

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Black

ORDERS:

  1. The appeal is allowed;
  2. The decision of the regulator dated 15 September 2016 is set aside; and
  3. Costs are reserved.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION – Where the review unit of the WCR had set aside the decision of the self-insured employer – Where the employer appealed to the Commission against that decision – Physical injury – No contemporaneous explanation of cause of injury – Association with employment in dispute.

CASES:

Workers' Compensation and Rehabilitation Act 2003, s 550; Briginshaw v Briginshaw (1938) HCA 60 CLR 336.

APPEARANCES:

Mr GJ Cross, Counsel, instructed by HBA Legal, for the Appellant.

Mr PB O'Neill, Counsel, instructed by the Workers' Compensation Regulator, the Respondent.

Decision

The Claim

  1. [1]
    The appellant in this matter, JBS Australia Pty Limited (JBS), operates the Dinmore Meat Works. JBS is a licensed self-insured employer under the terms of the Workers' Compensation and Rehabilitation Act 2003 ("WCR Act").
  1. [2]
    Mr Bacon has been employed at the Dinmore Meat Works since 1997. He lodged an application for compensation with the self-insurer on 29 January 2016 claiming that he had injured his right foot at work on 14 December 2015. His application for compensation was rejected by the self-insurer on 12 April 2016, however, on review, the workers' compensation regulator set aside the self-insurer's decision and concluded that the claim was one for acceptance. It is this decision, which was given on 15 September 2016, that is now the subject of appeal.

Nature of Appeal

  1. [3]
    The appeal to the Commission is conducted by way of a hearing de novo.  It is not an appeal stricto sensu, but is a trial of the injured workers’ claim for compensation. Both the Commission and the parties are unaffected by the earlier decisions of the insurer and the regulator. Whether the claim is one for acceptance or rejection is a matter to be decided afresh based on the material placed before the Commission during the trial.
  1. [4]
    In the context of this appeal, a finding that Mr Bacon has sustained an injury pursuant to s 32(1) of the WCR Act, requires a determination that Mr Bacon injured his right ankle on 14 December 2015 by hitting his ankle on a trim stand on the kill floor of the abattoir around 10.30 pm that evening. Section 32(1) of the WCR Act relevantly provides:

"32  Meaning of injury

(1) An injury is personal injury arising out of, or in the course of, employment if—

(a) for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury.

Appellant's Case

  1. [5]
    The appellant submitted that inconsistencies in the reporting of the injury surfaced by the contemporaneous first aid records supported a conclusion that the injury did not occur at the time or in the manner described by Mr Bacon. Such an outcome was supported by the records of medical consultations on 22 December and 31 December 2016 which disclosed that the ankle injury was not sustained on 14 December 2015, but at some earlier point. 
  1. [6]
    The appellant argued that the documentary evidence and related evidence established the following inconsistencies:
  1. (i)
    While Mr Bacon described in specific terms how he injured his ankle on 22 January 2016, when he first reported an injury to his employer's first aid officer at 11.50 pm on 14 December 2015, he said to the first aid officer that he was "unsure how the injury occurred";
  1. (ii)
    Similarly, when Mr Bacon completed a record of injury statement shortly after reporting to the first aid office, he wrote that he "suffered an injury when my right ankle became swollen over time", and stated that he did not know what caused the injury;
  1. (iii)
    Despite being very familiar with workplace policies and procedures relevant to incident and injury reporting, Mr Bacon never reported a work related injury to his employer (until well after the event);
  1. (iv)
    While stating on 22 January 2016 that his injury resulted from an incident at work on 14 December 2015, Mr Bacon told Dr Khanipour on 22 December 2015 that the injury occurred in early December 2015;
  1. (v)
    While stating on 22 January 2016 that his injury resulted from an incident at work on 14 December 2015, Mr Bacon told the Logan Hospital on 31 December 2015 that the injury occurring four weeks earlier;
  1. (vi)
    According to the consultation records, Mr Bacon did not tell either Dr Khanipour or the Logan Hospital that his ankle condition was work related and he did not request a workers' compensation medical certificate.
  1. [7]
    The appellant submitted that these inconsistencies were to be understood in circumstances where:
  1. (i)
    A failure to report an injury at work could not be attributed to any reticence on the part of Mr Bacon, or to a deficient understanding of relevant policy or procedure;
  1. (ii)
    It was not in dispute that Mr Bacon was well versed in workplace policies and knew that all work related injuries or incidents had to be reported on a timely basis, if not immediately. His role as an EBA representative emphasised his knowledge of these procedures;
  1. (iii)
    First aid records reveal that Mr Bacon had a history of reporting work related injuries promptly. Mr Bacon's record of attendance at the first aid facility since the year 2000 was set out in Exhibit 3;
  1. (iv)
    Familiarity with workers' compensation procedures including the obligation on the worker to establish that the claimed injury was work-related was demonstrated by the fact that Mr Bacon had, during the course of his employment at the abattoir, lodged twenty-seven workers' compensation claims.
  1. [8]
    In the appellant's submission it was inconceivable that, given these considerations, Mr Bacon might slip and kick a stand with some force and experience a sharp pain at 10.30 pm, and yet only an hour or so later, tell a first aid attendant that he did not know why his ankle was swollen, and indicate that the condition had built up over time.

Respondent's Case

  1. [9]
    The respondent argued that a finding of credit favourable to Mr Bacon was warranted. It followed that Mr Bacon's version of events should be accepted and preferred to any speculative reasoning relied on by the appellant.
  1. [10]
    The respondent argued that Mr Bacon's version of events was supported by a body of evidence which clearly pointed to a conclusion that his injury would not have happened in any other way than as described by him. The body of evidence includes:
  1. (i)
    Mr Bacon's evidence that there had been no earlier onset of symptoms nor any other event or incident causing his ankle condition;
  1. (ii)
    Mrs Bacon's corroborating evidence that Mr Bacon had not sustained any injury prior to 14 December 2015;
  1. (iii)
    The absence of any evidence including medical evidence supporting a conclusion that Mr Bacon sustained a right tibial posterior rupture and spring ligament tear prior to 14 December 2015;
  1. (iv)
    The absence of any evidence showing that Mr Bacon experienced any symptoms or signs of injury prior to starting work on Monday 14 December 2015;
  1. (v)
    Evidence from JBS witnesses, who would have had opportunity and numerous opportunities to see Mr Bacon on a daily basis at work during the period immediately preceding 14 December 2015 and yet, who all confirmed that he showed no signs or symptoms of being injured prior to 14 December 2015.
  1. [11]
    The respondent maintained that Mr Bacon's evidence was corroborated by:
  1. (i)
    the evidence of Mrs Bacon;
  1. (ii)
    the fact that Mr Bacon experienced significant swelling in his right ankle on 14 December 2015 which is consistent with an event occurring at work that evening;
  1. (iii)
    the evidence that Mr Bacon was able to complete his normal work duties for the two weeks prior to 14 December 2015 without complaint of injury or any signs of injury or symptoms like limping, pained expression etc.;
  1. (iv)
    the evidence of Dr Peereboom, including his evidence that if a spring ligament tear occurred at the same time as the ruptured tendon, then it was likely that the injuries were caused by an acute event.

The Evidence

  1. [12]
    In his application for compensation dated 29 January 2016, Mr Bacon stated that his injury was sustained at his place of work on the "kill floor", and that the injury occurred because he slipped on fat as he was walking past a trim stand. Mr Bacon provided a consistent version in a statement subsequently prepared on 9 February 2016, wherein he stated at paragraphs 24 and 25 that:

"I recall slipping on a piece of fat that was lying on the floor near the stand and losing balance, causing my right foot to slip out from under me and hit the side of the stand with an amount of force. This action saved me falling on my back.

At the time I thought little of the incident as I was taking knives back to an employee on the stand. I carry 4 knives at a time."

  1. [13]
    In his evidence in the proceedings, Mr Bacon maintained that he had not experienced any difficulty with his right ankle prior to the work injury on 14 December 2015. He said that he did not have symptoms of swelling and that he did not experience any difficulty in movement attributable to a right ankle condition prior to the injury. This version of events was not disputed by any of the employer witnesses to the extent that they did not observe any restriction or limitation in Mr Bacon's movements during his attendance at work prior to 14 December 2015. In terms of how the injury occurred, it was his evidence that (T2-48/49):

" … I went back down, had a – picked up a couple more knives to go up and grind.  Went up and ground them, walked back down and, at that stage, that’s where I slipped on the piece of fat and – around half-past ten, slipped on the piece of fat and kicked my foot.

…

… Are you able to assist the commission with how much force, or what degree of force your foot contacted the stand?‑‑‑Well, I kicked it with a bit of force, yes.  Not a great thump, but it – I mean there was force there, yes.

All right.  And as a consequence of that contact, did you feel any pain?‑‑‑I felt a sharp pain, first up, which I assume everybody would.  But then it went to a dull – a dull ache, I mean, not a – not a sharp, hard pain, but a dull pain."

  1. [14]
    Mr Bacon did not inform his employer that he had sustained a work-related injury. His retrospective explanation was to the effect that he did not report the injury because he did not think the problem was serious and that, with a six week shut down imminent, he thought he would have ample time to recover before the plant resumed operations (T2-54):

“ … As I said – stated before, I just didn’t think anything of it.  Just kicked my foot, didn’t think a great deal of it.  It wasn’t overly sore.  It was – there was pain there, but not overly, and thinking that we’ve got five weeks off – four to five weeks off, it’d settle down.”

  1. [15]
    Mr Bacon customarily attended at the first aid office during his shift for the purpose of self-administering an insulin injection. His insulin was stored in a fridge located in the first aid facility. In his evidence he said that he would administer the insulin injection during a twenty minute break from work that was typically commenced around 11.30 pm. On 14 December 2015 he attended the first aid facility for this purpose soon after 11.20 pm when work stopped for the smoko break.
  1. [16]
    It is not clear on the evidence in the proceedings how Mr Bacon's ankle attracted some attention. But after his insulin had been injected, either Mr Bacon asked the first aid officer, Mr Pusaloa, to have a look at his ankle, or Mr Pusaloa noticed that something was amiss. Either way, as soon as Mr Bacon's boot came off it was clear that his ankle was swollen. After treatment with ice, the discussion turned toward causation. Mr Bacon's evidence is set out below (T2-52):

"All right.  Now, what can you recall either Mr Pusaloa asking or you telling Mr Pusaloa about your foot?‑‑‑He asked me what I’d done.  I did say I wasn’t sure.  He had a look at my foot, iced it.  He said, “It’s very swollen”.  Iced it, and then would not let me go back to work.

All right.  So what did you do for the balance of that shift?‑‑‑I sat on a chair with ice – an icepack on my foot till approximately 1 o’clock in the morning, then had a shower and went home."

  1. [17]
    Mr Pusaloa's evidence about the matter is set out below (T1-103):

"What do you remember occurred on that particular occasion?‑‑‑On that night, I recall actually having a discussion with Mr Bacon.  He was sitting beside me at my desk in first aid office, and I had happened to glance down and look at his boot, and I see a swelling protruding from his boot.  And so that’s what prompt me to ask him several questions in regard to the injury, where he replied he was unable to give me a definitive answer as to how it happened, so ‑ ‑ ‑

Was he there for another reason?  No, no, I’ll leave that.  Was he there to – in regard to his diabetes?‑‑‑Yes, yes, he was.

And you say that you looked down or noticed that he had some problem with his foot.  Is that correct?‑‑‑Yes, sir.

And did he bring it to your attention or did you bring it to his attention?‑‑‑I can’t really recall.  I think it was a mixture of both.  We were just as surprised to see that there, so ‑ ‑ ‑

Is it part of your normal routine as a first aid officer to ask whether any event occurred or any injury occurred?‑‑‑Yes, sir.

Did you ask that question on that night?‑‑‑Yes, sir.

And what answer did you receive?‑‑‑We weren’t able to – he wasn’t able to give me a definitive answer.

Did he advise you of any particular event that night or ‑ ‑ ‑?‑‑‑Well, it was speculation, but it was nothing really concrete to say that this happened which caused this."

  1. [18]
    During cross-examination, Mr Pusaloa's further evidence about the matter is set out below (T1-107):

"It could be gout?‑‑‑It could be anything to – to start off major swelling like that, and I just – yeah.  I was just picking any scenario just so we can get to the root cause so he can get better, you know.  That was ‑ ‑ ‑

Was there any actual discussion – there’s no indication in the note, but was there any actual discussion that you can recall between you and Mr Bacon about the issue of gout, or was this just a theory that you kept to yourself?‑‑‑Yeah, it – look, it was a theory that him and I had discussed.  It was an array of things.  It could have been anything, so that was my conversation with him.  I was just trying to get him to jog his memory just to see if it could be gout or it could not be, but ‑ ‑ ‑

And did he indicate to you that he had in fact not suffered from gout?‑‑‑No, not that I – I can recall.  The only thing I remember telling him, and I told this to a lot of guys at work, if you’re unsure, go to your doctor; see your GP.

Okay.  All right.  Is it possible that – in the course of that conversation about, you know, speculation about how it happened – that he may’ve mentioned to you about this incident of kicking a stand?‑‑‑Well, that information was only brought to my attention when I read the 22nd of the 1st, the second injury report."

  1. [19]
    Mr Bacon's evidence in cross-examination was consistent with the evidence given by Mr Pusaloa (T2-71):

"You accepted that he has tried to – that he attempted to explore what caused this problem?‑‑‑He asked me.

He asked you about gout?‑‑‑He asked me about gout.

He asked you about whether you had any incidents or events?‑‑‑And as I explained, and I have explained a dozen times, I didn’t think anything of it."

  1. [20]
    Following normal practice, after receiving treatment for his injury, Mr Bacon was asked to complete an injury report which is included in Exhibit 5. In this report Mr Bacon stated that he suffered an injury when his "right ankle became swollen over time". He said that the injury occurred at 10.30 pm on 14 December 2015. He said that at the time of injury he was on the kill floor. He said that he did not know what caused the injury.
  1. [21]
    The First Aid Employee Attendance Sheet, which is in the evidence as Exhibit 3, also included a record of Mr Bacon's attendance. The relevant entry included by Mr Pusaloa reads as follows:

"Peter has sustained major swelling to his R) ankle. At the time of the injury he was on the kill floor. Peter is unsure how the injury occurred. He reports that the swelling had gradually built up over time. Rested in FAC with an ice pack for the remainder of the night. Advised to see a G.P. for this issue as it may be a personal illness that he is unaware of. Foreman and HR are aware of the injury."

  1. [22]
    When Mr Pusaloa was asked about the gradual build-up of the swelling he said (T1-104):

"Okay.  And when you say it gradually built up over time, did he – did you have any understanding or did he advise you over what period of time?‑‑‑No, sir.  There was nothing really concrete.  There was no – when he stated that, I kind of assumed it was something building up throughout the night.  Yeah."

  1. [23]
    It was also Mr Pusaloa's evidence that Mr Bacon was not prone to visit first aid for minor or insignificant injuries. He said that it would be fair to characterise Mr Bacon as a worker who was less likely to report an injury rather than more likely. He was never the type to attend at the first aid facility "willy-nilly" to report injuries.
  1. [24]
    In the end result Mr Bacon remained in the first aid facility for a little over one hour. During this period he would have had time for reflection. This was not a case where he got treatment for his ankle and then left. He had a fairly wide-ranging or exploratory discussion with Mr Pusaloa about causation. After treatment by Mr Pusaloa he would have had time to reflect on an injury or a symptom which he had not previously experienced. The ankle was badly swollen. It is difficult to accept that an incident occurring only an hour or so earlier which caused significant pain would not have surfaced in his mind.
  1. [25]
    The First Aid Employee Attendance Sheet entry made by Mr Pusaloa on 14 December 2015 included a statement that "Foreman and HR are aware of the injury". This entry was made at 11.50 pm. On the evidence, HR became aware of the injury when Ms Smith visited the first aid facility while Mr Bacon was receiving treatment. There is no evidence of any other notification of the injury to HR before 11.50 pm on 14 December 2015.
  1. [26]
    Ms Smith said that she was the Human Resources Officer on duty on the night shift on 14 December 2015. She said that she saw Mr Bacon in the first aid room during a routine visit to the first aid centre (T1-70):

" … when I went into the first aid department, I noticed Peter was there.  I seen the ice pack on his foot.  I said to him, “What have you done now?”  And he said, “I don’t know”.  I asked him to lift the ice pack up and I had a look.  It was swollen at the time.  And then I left it at that and I left HR – went back to HR.

  1. [27]
    Mr Bacon however denied that he had spoken to Ms Smith. He said that while she came into the first aid room she did not speak to him and left the room very soon after arriving. Mr Bacon's version is partially consistent with an earlier account that Ms Smith had provided (Exhibit 9) when interviewed by an investigator on 26 February 2016. When Ms Smith was asked whether she had been told on the night of 14 December 2015 what caused Mr Bacon's injury, she replied "no, I was in and out of first aid very quickly as I had a message to give to TJ. I had a brief conversation with TJ and returned to HR".
  1. [28]
    Acknowledging the apparent inconsistency between Ms Smith's evidence in the proceedings and the prior statement, I don’t think that much turns on the inconsistency, nor on the differences in the versions provided by Ms Smith and Mr Bacon. I accept that the exchange between the two was very brief and superficial in nature, that Mr Bacon did not volunteer a cause of injury, and that Ms Smith did not show any particular interest in establishing the cause. 
  1. [29]
    The entry in the First Aid Employee Attendance Sheet dated 14 December 2015 stated that Mr Bacon's foreman had been made aware of his injury. Mr Bacon's foreman on the shift was Mr Heit. However Mr Bacon's evidence in the proceedings was that he did not tell Mr Heit about his swollen ankle until the following day. He said that he told Mr Heit that he had slipped and had hurt his foot. Significantly he did not tell Mr Heit either how he had hurt his foot or where he had hurt his foot. In a statement (Exhibit 14) sworn on 9 February 2016, Mr Bacon said that he informed Mr Heit on 15 December 2015 about his swollen right foot, but he did not recall if he "went into details of slipping on the fat and hitting my right ankle on the trim stand". In his statement (Exhibit 14), Mr Bacon also said that he did not tell anyone about his injury until he went to first aid.
  1. [30]
    In the circumstances I do not think that Mr Bacon can rely on the reference in the first aid attendance sheet to suggest that he told Mr Heit about his injury before presenting at the first aid facility. In any event it was the evidence of Mr Heit, that Mr Bacon did not report the injury to him. This evidence mirrored what he had recorded in the injury or incident investigation form (Exhibit 5) on 3 February 2016 where he stated that Mr Bacon's injury had not been reported to production staff and that it was not known how the injury occurred.
  1. [31]
    Mr Bacon also maintained that he told the Human Resources Manager, Mr McManus, about his injury in a brief exchange on 15 December 2015. When Mr McManus saw him limping he said that he had hurt the ankle the previous evening. Mr McManus then asked him if he had gout. On Mr McManus's version, having observed Mr Bacon's condition he asked him what was the matter, in response to which Mr Bacon replied that he did not know.
  1. [32]
    There is nothing in the exchanges said to have occurred by Mr Bacon which establishes that he reported a work-related injury to either Mr Heit or Mr McManus on 15 December 2015. Any communication at all was denied by Mr Heit, but on Mr Bacon's version, there is a significant difference between, on the one hand informing the supervisor that he had a swollen ankle and, on the other hand, reporting an injury sustained at work. Similarly, in my view, his own evidence does not sustain a conclusion that he reported a work related injury to Mr McManus.
  1. [33]
    What has emerged at this stage of the chronology is that despite Mr Bacon's knowledge of procedures relating to work-related injuries and requiring the reporting of work-related injuries, on his own evidence, in conversations with Mr Pusaloa, Mr Heit, and Mr McManus he had not taken the opportunity to unambiguously point out that he had injured himself at work and to describe the mechanism of injury. Further, while he denied that he exchanged words with Ms Smith in the first aid room the previous evening, neither did he take the opportunity of informing her of a work-related injury.
  1. [34]
    After the incident on 14 December 2016, Mr Bacon completed his normal shifts on 15 and 16 December 2016 after which the plant closed for the Christmas break. The evidence does not include reference to any other interactions prior to the Christmas shut down of the plant, subsequent to which Mr Bacon did not return to the plant until 22 January 2016.
  1. [35]
    The evidence supports a finding that neither Mr Pusaloa, Mr McManus, Mr Heit, nor Ms Smith knew prior to 22 January 2016, that Mr Bacon was claiming that his ankle condition was work related.
  1. [36]
    This state of affairs changed however when the plant resumed operation on 22 January 2016 and Mr Bacon again attended at the first aid facility. The First Aid Employee Attendance Sheet (Exhibit 3) includes a record of this attendance which indicates that Mr Bacon provided further details to Mr Pusaloa about how he hurt his ankle on 14 December 2015. The record indicates that at the time of his injury, Mr Bacon was walking past a stand and stated that Mr Bacon believed that "the injury occurred because he slipped on a bit of fat". After presenting at the first aid facility on 22 January 2016, Mr Bacon subsequently worked on alternative duties until 27 January 2016, but has not worked since that date.
  1. [37]
    When he was asked why he changed his mind about causation, Mr Bacon said that he changed his view after having time to reflect "on a possible cause and slipping and kicking the stand was the only factor that I could recall that would have caused my injury". In a context where immediately after the alleged event, Mr Bacon told Mr Pusaloa that he did not know what caused the injury, Mr Bacon's testimony was that he had to go through some form of process of recall to try to find an incident that "would have caused" his injury. This explanation may not be sufficient to satisfy the statutory test of association between injury and employment. 
  1. [38]
    The first aid record for 22 January 2016 included an entry to the effect that the health and safety department was aware of the injury in addition to human resources staff and Mr Bacon's foreman. The relevant health and safety officer was Mr Wilson. It was his evidence that he became aware on 22 January 2016 that Mr Bacon had claimed that his ankle condition was work related. It was his responsibility to oversee the investigation into Mr Bacon's injury. An Injury/Incident Investigation Form in the evidence as Exhibit 5 disclosed the nature of the investigation process.
  1. [39]
    Section B of the form was completed by the attending first aider, Mr Pusaloa, on 5 February 2016. Mr Pusaloa wrote that the injured worker reported "that swelling had gradually built up over time however he also recalls accidentally slipping or fat and kicking a stand, but thought nothing of it. Mr Pusaloa also recorded that he had no reason to doubt the injury was consistent with the mechanism described.
  1. [40]
    In his evidence in the proceedings Mr Bacon said that he talked to Mr Wilson about his injury on Monday 25 January 2016. He said that Mr Wilson asked him about the injury, and what happened (T2-61):

"What was the nature of the conversation that you recall that you had with Mr Wilson?‑‑‑He asked me what I’d done, you know, the injury;  I told him, you know, slipped on a bit of fat, kicked the stand;  he asked me where;  and I told him where, on the kill floor.

All right.  And did you give him details about where it was on the kill floor?‑‑‑I would’ve told him.  Yes, on the forequarter trim stand. 

Are you sure that you said that to him?‑‑‑Yes.

All right.  And after that conversation that you had with Mr Wilson, did you ever have any further conversation with Mr Wilson about your injury?‑‑‑No."

  1. [41]
    Mr Wilson's evidence was different. He said that Mr Bacon told him that he did not know what had happened, that his "foot just swelled up", and that he "must’ve done it on the kill floor.” Mr Wilson maintained that when he asked Mr Bacon to specify an injury location, Mr Bacon simply indicated that the incident happened on the kill floor and declined to be more specific. This was a significant difficulty given that there were 204 workstations and 20 trim stands on the kill floor. Further the lack of specificity meant that the usual procedure of completing a video re-enactment of the incident could not be carried out.
  1. [42]
    Section C of the investigation form was completed by Mr Wilson. The entries made by Mr Wilson in completing his section of the form on 5 February 2016 included the following:

"Unable to identify any causal factors due to I.W.'s inability to supply or provide specific agency of injury";

"Possibility of degenerative condition or other";

"conflicting narrative. Task not related" (in referred to the statement completed by the injured worker)

  1. [43]
    Mr Wilson also made an entry drawing attention to the conflict between the injured workers statement made by Mr Bacon on 14 December 2015 and his subsequent statement which was completed on 22 January 2016.
  1. [44]
    The respondent submitted that the evidence supported a conclusion that Mr Wilson's investigation was conducted in an incompetent, unprofessional and biased manner. The submission was that the investigation conducted by Mr Wilson was flawed in that it completely ignored Mr Bacon's version of events and did not consider the possibility that the injury had occurred in the manner described by him. It followed that the appropriate course would be for Mr Wilson's evidence in the proceedings to be disregarded.
  1. [45]
    In my view nothing much turns on Mr Wilson's evidence, including his investigative process and the investigative outcome. I am reluctant to attach any significant weight to evidence about events occurring after 22 January 2016. It was on or about this date that it became clear that Mr Bacon's claim would be contested, and that the process would become or had become adversarial. Mr Wilson had no involvement in the matter prior to 22 January 2016.
  1. [46]
    It was Mrs Bacon's evidence that her husband had not been exhibiting any signs of an ankle condition prior to his departure for work on 14 December 2015. She said however that the following morning around 8.00 am, Mr Bacon drew her attention to his swollen foot and told her that he had injured his foot at work by kicking a stand. The difficulty with Mrs Bacon's evidence is that it is not consistent with what Mr Bacon had told Mr Pusaloa the previous evening when he said that he did not know how the injury had occurred. Nor is her evidence consistent with what Mr Bacon told Mr Heit or Mr McManus on 15 December 2015.
  1. [47]
    When Mr Bacon first sought treatment for his swollen ankle, he told Dr Khanipour on 22 December 2015 that he attended because of swelling over his right foot, which he said was "on and off for 3 weeks after hitting". The record then stated there was no ankle sprain and indicated that there was more swelling, or the swelling was worse, after walking for a long time. The relevant parts of the record (Exhibit 2) are set out below:

"1) came for sweling (sic) over rt foot, on and off for 3 weeks after hitting, no ankle sprain more after walking for long time

exam: mild redness and warmness

no tenderness"

  1. [48]
    The records of Mr Bacon's attendance on Dr Khanipour on 22 December 2015 also disclosed that Mr Bacon's diabetes was "not well controlled" and that he was given education about the "importance of diabetic management".   
  1. [49]
    The consultation note of Mr Bacon's attendance on Dr Khanipour on 23 December 2015 indicated that an ultrasound commissioned the previous day revealed a rupture of the tibialis posterior tendon.  No reference was made to a spring ligament tear.
  1. [50]
    Dr Khanipour's evidence in the proceedings did not provide any significant illumination. He had little independent recall of the consultations in question. He confirmed that he did not issue any workers' compensation medical certificate and that he did not make any entry to the effect that the ankle condition was caused by an event at work.
  1. [51]
    On 24 June 2016, Mr Bacon's lawyers sought further information from Dr Khanipour about the entries in the medical records of the 22 December 2015 consultation. An entry in the medical records for 4 July 2016 discloses that Dr Khanipour responded by saying that either there was no mention of a work related injury in his records or that Mr Bacon did not specify any work connection. 
  1. [52]
    Dr Khanipour referred Mr Bacon to the Logan Hospital fracture clinic. The hospital record (Exhibit 4) of Mr Bacon's attendance on 31 December 2015 discloses that the injury was caused when Mr Bacon accidently kicked a stand four weeks earlier, and that while he had no problems for two weeks, he then experienced pain and swelling and that walking became painful. The relevant part of the record is reproduced hereunder:

"Acidentally kicked a stand with the medial side of R foot 4/52 ago

Had no problems for 2/52, the started to C/O pain swelling and painfull walking

Says that he an (sic) not exactly pinpoint the area of pain, but it is more anterior, medial and posterior foot and ankle"

  1. [53]
    The Logan Hospital record also noted that an ultrasound had shown a tibialis posterior tendon rupture, and that an MRI had been commissioned. It was Dr Peereboom's evidence that the MRI revealed both a tibialis posterior rupture and a spring ligament tear.
  1. [54]
    The effect of the medical records of Dr Khanipour and the Logan Hospital in terms of timing of onset is that an event occurred in early December 2015. The records are not consistent with Mr Bacon's 22 January 2016 version of events that the injury was caused by an incident on 14 December 2015.
  1. [55]
    However the respondent submitted that it would be unfair and dangerous for the Commission to treat the content of particular medical records as evidence of a prior or earlier injury and in so doing reject a body of evidence including the following:
  1. (i)
    Evidence from Mr and Mrs Bacon which contradict the timing of onset of symptoms recorded in the consultation note;
  1. (ii)
    Evidence of Mr Bacon attending work and completing his work duties without complaint or apparent difficulty in the two weeks leading up to 14 December 2015;
  1. (iii)
    Evidence from JBS witnesses to the effect that in the two weeks prior to 14 December 2015, Mr Bacon was able to perform his work duties without apparent difficulty and with no sign of injury or symptoms.
  1. [56]
    While the respondent emphasised Mr Bacon's capacity to move around the workplace unhindered prior to 14 December 2015, the effect of Dr Peereboom's evidence on the subject was that, if Mr Bacon had ruptured his tendon prior to 14 December 2015, the rupture may not have significantly restricted his mobility or his capacity to walk distances at work, including walking up and down stairways. Significantly, Dr Khanipour's evidence was similar. When asked about the matter he said that, for patients suffering from a ruptured posterior tibialis tendon, some would experience difficulty in walking, while others would not. It was his evidence that a rupture in the tendon could result in some limitation in activity, or it may not.
  1. [57]
    Dr Peereboom had examined Mr Bacon on 25 February 2016 at the request of the self-insurer. Dr Peereboom's conclusion on the assessment is set out in his report dated 25 February 2016 (Exhibit 6):

"I believe that Mr Bacon has sustained a rupture of his tibialis posterior tendon, which can occur just in the course of normal everyday activity.

I am unable to state categorically that the slip at work caused this but, because Mr Bacon asserts that he had had no problems prior to that incident, and because the swelling commenced within a few hours after the event, I believe that this would in all probability be the event that cause the tendon to rupture."

  1. [58]
    In a supplementary report dated 12 April 2016 Dr Peereboom informed the self-insurer that the rupture of the tibialis posterior tendon "could have occurred at any stage in early December, or even prior to this". The effect of Dr Peereboom's evidence in the proceedings and his documentary evidence was that:
  1. (i)
    There is a well-recognised association between diabetics and the development of tibial posterior tendonitis. People who have diabetes are commonly more prone to develop tibial posterior tendonitis;
  1. (ii)
    While the mechanism of injury described by Mr Bacon was consistent with the diagnosed injury, a rupture of the tendon does not need to be caused by a specific traumatic event. The rupture could have occurred spontaneously or secondary to any injury or knock;
  1. (iii)
    A person can get an inflammatory condition in the tendon "for no good reason". What results is a painful swollen ankle;
  1. (iv)
    The radiology (MRI) did not disclose when the tendon ruptured;
  1. (v)
    Swelling or an increase in swelling, and pain, would be associated with a tendon rupture;
  1. (vi)
    It would take a significant and great amount of force to cause a rupture a healthy posterior tendon, but in a diseased tendon, as in Mr Bacon's case, a less significant event could give rise to the rupture;
  1. (vii)
    Mr Bacon had tibialis posterior dysfunction for quite some time before his tendon ruptured. People with this dysfunction are usually fine for a while but after a year or so they develop arthritis in the joints underneath the ankle;
  1. (viii)
    The MRI revealed evidence of degeneration inside Mr Bacon's calcaneocuboid joints. The degeneration or arthritis indicated that some degree of deformity had been present for many years;
  1. (ix)
    The pre-existing arthritis may have predisposed Mr Bacon to the injury and meant that the rupture could have occurred with less force or trauma than would otherwise be the case. An aggravation of the pre-existing condition could have led to the ligament tear and have caused the swelling;
  1. (x)
    People are able to walk after rupturing the tibialis posterior tendon and the condition can be less restrictive or more comfortable than when the tendon is intact;
  1. (xi)
    Research indicates that it is a common occurrence for the two conditions (tendon rupture and spring ligament tear) to happen together;
  1. (xii)
    It was more likely than not, that an acute event would have been involved if Mr Bacon had sustained both the tendon rupture and the spring ligament tear at the same time.
  1. [59]
    It was the respondent's submission that the evidence of Dr Peereboom, considered in a factual context where Mr Bacon did not exhibit any apparent signs of an ankle condition prior to his commencement of work on 14 December 2015, supported findings that Mr Bacon's injury arose from either:
  1. (i)
    an event at the workplace on 14 December 2015 that caused or contributed to either a rupture of the posterior tibialis tendon in Mr Bacon’ right leg, and/or a tear of the spring ligament; or
  1. (ii)
    an event at the workplace that caused or contributed to a permanent aggravation of an underlying degenerative process or dysfunction of the posterior tibialis tendon, and that has also caused a spring ligament tear.
  1. [60]
    It was submitted that either of these scenarios caused substantial swelling to occur in Mr Bacon’s right ankle and brought about a permanent change to Mr Bacon’s condition. Further the degeneration process associated with Mr Bacon’s foot or ankle made it more likely that Mr Bacon would sustain a rupture of his posterior tibialis tendon, particularly if there was an acute event where his foot kicked or struck something.
  1. [61]
    The respondent further argued that the focus, in terms of the evidence of Dr Peereboom, should be on his consideration of the implications of Mr Bacon sustaining both a ruptured tendon and a spring ligament tear. It was contended that the appellant's view of the evidence did not "accurately summarize the ultimate evidence of Dr Peereboom, which was that the fact that Mr Bacon has sustained both a posterior tibial tendon rupture together with a spring ligament tear makes it far more likely that there was in fact an acute event of some nature".  It followed from the respondent's perspective that this evidence, when considered together with the evidence of substantial swelling occurring on 14 December 2015, supported a finding that an event had occurred at the workplace on 14 December 2015.
  1. [62]
    There are some difficulties associated with the respondent's treatment of this issue. Firstly, nothing much turns on whether the ankle condition was caused by an acute event. This is not a matter in dispute on the medical evidence. The significant matter in dispute is whether, if there were an acute event, it occurred on 14 December 2015 or at some earlier time.
  1. [63]
    Secondly, the evidence did not establish that Mr Bacon ruptured his tendon and sustained a ligament tear at the same time. While the tendon rupture was shown on an ultrasound taken on 22 December 2015, the spring tear was not identified until an MRI taken in January 2016 was reviewed by Dr Peereboom. The evidence in respect to the tendon rupture was that the MRI could not show when the rupture occurred. The possibility that the tendon rupture may have occurred at the same time only arose during the proceedings when the respondent canvassed the matter with Dr Peereboom. In this regard it was the effect of Dr Peereboom's evidence that the research indicated that it is a common occurrence for the two conditions to happen together. Other than this acknowledgment, there was no other evidence touching on the matter.
  2. [64]
    The effect of the appellant's submission was that, whatever conclusions the respondent chose to draw from Dr Peereboom's evidence, it did not alter the fact that his evidence also supported scenarios in which:
  1. (i)
    Mr Bacon's ruptured tendon could have occurred spontaneously without an injury or knock, and could have occurred in the course of normal every day activity;
  1. (ii)
    If symptoms had emerged earlier as noted in the record of attendances on Dr Khanipour on 22 December 2015 and the Logan Hospital on 31 December 2015, then the injury could have occurred in early December 2015;
  1. (iii)
    Mr Bacon's weight and diabetic condition would have pre-disposed him to the development of tibialis posterior tendonitis. No association with employment was necessary.
  1. [65]
    In my view, the medical evidence of Dr Peereboom could be relied on to support the position of either side. Essentially the diagnosed injury could have occurred at work as postulated by Mr Bacon, it could have occurred while Mr Bacon was at work without any specific traumatic event, it could have occurred away from work, and it could have occurred earlier than 14 December 2015.

Gout

  1. [66]
    It is open on the evidence to conclude that the possibility that gout was the cause of the ankle condition first emerged in the exploratory discussion between Mr Pusaloa and Mr Bacon on 14 December 2015.
  1. [67]
    In terms of the subsequent interactions between Mr Bacon and Ms Smith and Mr McManus on 15 December 2015, Mr McManus said that Mr Bacon told him that "it was most likely his gout that was causing him the issue". Mr Bacon's evidence however was that Mr McManus asked him whether gout was the cause. Ms Smith said that while there was a conversation about gout between Mr McManus and Mr Bacon, she was not sure who raised the matter.
  1. [68]
    The evidence does not support a finding that Mr Bacon volunteered or suggested or nominated gout as a cause of his swollen ankle. It was raised as a possibility by Mr Pusaloa and subsequently canvassed as a possibility in a conversation between Mr Bacon and Mr McManus. The medical evidence was clear in establishing that Mr Bacon had not previously suffered from gout.

Standard of Proof

  1. [69]
    The appeal is to be decided on the standard of proof in civil proceedings, the balance of probabilities. The civil standard varies according to the gravity of the allegations, their inherent probability, and the consequences of an affirmative finding:[1]

"The seriousness of an allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony or indirect inferences."

Conclusion

  1. [70]
    Mr Bacon made his claim for compensation in circumstances where the incident that he alleged caused his injury was not witnessed, and he did not report the incident to his employer until six weeks after the event. A failure to report an injury is not fatal to the success of an injured workers’ claim, but the associated facts and circumstances in this case suggest that it was improbable that his injury was caused by an incident at work at 10.30 pm on 14 December 2015.
  1. [71]
    Firstly, Mr Bacon's condition did not require any association with employment in circumstances where particular factors predisposed Mr Bacon to a tendon injury. The medical evidence established that Mr Bacon was a diabetic, that he was overweight, and that he had a diseased foot (arthritis in the calcaneocuboid joint indicating a degree of deformity). His tendon could have ruptured prior to 14 December 2015, and while some pain and swelling would have been experienced at the time of the rupture, mobility need not have been restricted.
  1. [72]
    Secondly, Mr Bacon has provided two versions of events about causation. He provided a version soon after the alleged incident occurred, and he provided a second and different version on 22 January 2016. Given the explanation he has provided about how he arrived at his second version, I prefer the contemporaneous version in which Mr Bacon said that he did not know what caused the injury.
  1. [73]
    Thirdly, the contemporaneous evidence associated with Mr Bacon's attendance at the first aid facility on 14 December 2015 does not support a conclusion that his ankle condition was related to a workplace event. When Mr Bacon's swollen ankle was assessed by the first aid officer, Mr Bacon did not attribute the condition to an incident at work. This outcome prevailed notwithstanding that Mr Bacon had remained in the first aid facility for an hour and had engaged in a reasonably detailed exploratory discussion with Mr Pusaloa about what might have caused the injury. It is difficult to accept that such a process would not have surfaced an event at work where Mr Bacon kicked a stand with force and experienced sharp pain in his ankle.
  1. [74]
    Fourthly, Mr Bacon did not report a work related incident to his employer at any time between 14 December and 16 December 2015. Mr Bacon's failure to notify his employer that he had suffered a work related injury occurred in circumstances where he was very familiar with policies and procedures requiring the reporting of work related incidents and injuries; he had previously reported many injuries or incidents; he had witnessed co-workers being counselled because of a failure to report incidents and injuries; and he had previously made twenty-seven workers' compensation claims.
  1. [75]
    Fifthly, the contemporaneous medical records provide a history for the ankle condition that is inconsistent with that provided by Mr Bacon. The effect of the records was to indicate that the ankle condition was attributable to an event occurring in early December 2015, and that following this event Mr Bacon had experienced swelling in the ankle and some pain. His symptoms were more pronounced after walking for significant periods of time. The 22 December 2015 record said that the symptoms were experienced "on and off", while the later record stated that the symptoms did not become troublesome until the middle of December 2015.
  1. [76]
    The respondent questioned the weight that should be given to the medical records. Witness evidence had not been called by either side to explain the Logan Hospital entries made on 31 December 2015; Dr Khanipour's independent recall of the consultations on 22 and 23 December 2015 was not particularly helpful; and parts of the records were not inconsistent with Mr Bacon’s version of events in that they included entries which attributed the cause of the injury to "hitting" and to "kicked a stand".  Given these considerations the respondent argued that it would be wrong to prefer the history disclosed by the records, to the sworn testimony of Mr Bacon.
  1. [77]
    I acknowledge that care should be exercised in arriving at any conclusion about the meaning of the records. But this is not a case where a decision adverse to Mr Bacon relies solely on an inconsistency in his version and that recorded in the contemporaneous consultation notes. Other factors also contribute to a conclusion that Mr Bacon's account of causation is not to be preferred.
  1. [78]
    The respondent's defence relied significantly on evidence that was not in dispute that Mr Bacon had not been prevented from doing his job prior to 14 December 2015, and that there was no other plausible cause for his injury other than the version provided by him. The respondent submitted that had Mr Bacon injured his ankle in early December 2015, he could not have carried on and worked through to 14 December 2015 or in the alternative, if he did, his co-workers would have observed some significant level of discomfort, swelling, or pain.
  1. [79]
    While this line of argument has appeal, the difficulty for the respondent is that the medical evidence did not preclude the possibility that Mr Bacon may have been able to complete his normal work functions notwithstanding a rupture of the tendon. The medical evidence established that a tendon rupture did not necessarily immobilize or prevent a continuation of normal activity. Therefore it would have been possible for the tendon to have ruptured in early December before becoming symptomatic on or about 14 December 2015. Such a scenario was consistent with the history captured by the 22 December 2015 and 31 December 2015 consultation notes.
  1. [80]
    After a consideration of all the relevant facts and circumstances, I am satisfied to the requisite standard that the evidence in the proceedings is sufficient to support a conclusion that Mr Bacon did not injure his right ankle at work at 10.30 pm on 14 December 2015. His claim is therefore not one for acceptance. The appeal is allowed and the decision of the regulator dated 15 September 2016 is set aside. The matter of costs is reserved.

Footnotes

[1] Briginshaw v Briginshaw (1938) HCA 60 CLR 336 Dixon J at 362.

Close

Editorial Notes

  • Published Case Name:

    JBS Australia Pty Limited v Workers' Compensation Regulator

  • Shortened Case Name:

    JBS Australia Pty Limited v Workers' Compensation Regulator

  • MNC:

    [2017] QIRC 26

  • Court:

    QIRC

  • Judge(s):

    Member Black IC

  • Date:

    03 Apr 2017

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
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336

Cases Citing

Case NameFull CitationFrequency
Nuttall v Workers' Compensation Regulator [2017] QIRC 692 citations
1

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