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Gambaro v Workers' Compensation Regulator[2017] QIRC 33

Gambaro v Workers' Compensation Regulator[2017] QIRC 33

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Gambaro v the Workers' Compensation Regulator [2017] QIRC 033

PARTIES: 

Gambaro, Michael Alexander

(Appellant)

v

the Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2016/147

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

11 April 2017

HEARING DATES:

2, 20 and 21 February 2017

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Fisher

ORDERS:

  1. The appeal is dismissed;
  2. The decision of the Respondent dated 27 July 2016 is confirmed; and
  3. The Appellant is to pay the Respondent'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.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION – WORKPLACE INJURY – where appellant bears the onus of proof – whether there was a personal injury – whether the injury arose out of or in the course of the appellant's employment – whether employment was a significant contributing factor to the injury – where appellant tripped over a radio cord – where the appellant sustained a groin injury – whether a causal link exists between the trip and the injury – where the appellant provides a timeframe for when the trip occurred

CASES:

Workers' Compensation and Rehabilitation Act 2003, s 32

Q-COMP v Hetherington (2004) 176 QGIG 493

Rossmuller v Q-COMP (C/2009/36) - decision http://www.qirc.qld.gov.au

State of Queensland (Queensland Health) v Q‑Comp and Beverley Coyne (2003) 172 QGIG 1447

MacArthur v WorkCover Queensland (2001) 167 QGIG 100

Nilsson v Q-Comp (2008) 189 QGIG 523

Perkins v Woolworths Pty Ltd (ACN 000 014 675) [2017] QDC 1

Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403

APPEARANCES:

Mr M A Gambaro, the Appellant, in person.

Ms D Callaghan, Counsel directly instructed by the Respondent.

Decision

  1. [1]
    Michael Gambaro lodged an online application for workers' compensation with WorkCover Queensland on 8 April 2016 claiming that he had sustained a workplace injury on 10 January 2016.  The workplace injury was described as "pain in the left inguinal region" caused by "bad posture at workstation, unstable office chair".[1]  After the claim was rejected by WorkCover on 21 April 2016, Mr Gambaro sought a review of the decision by the Workers' Compensation Regulator.  The decision of the Regulator confirmed WorkCover's decision.  Mr Gambaro then appealed against the review decision of the Regulator.

Legal Requirements

  1. [2]
    Section 32(1) of the Workers' Compensation and Rehabilitation Act 2003 sets out the requirements that Mr Gambaro must meet in order to be successful in his appeal.  That subsection relevantly provides:

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

  1. (a)
    for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury; …"
  1. [3]
    A workers' compensation appeal is conducted as a hearing de novo.  That means the Commission decides the matter afresh on the evidence before it.[2]  Mr Gambaro bears the onus of proving on the balance of probabilities that he has an "injury" within the meaning of the Act.[3]
  1. [4]
    The Commission must reach a level of actual persuasion before the alleged facts can be found to exist.  The possibility of a worker sustaining an injury on mere conjecture is not enough.  There is a distinction between inference from evidence and conjecture or speculation.  An inference cannot be made unless there are objective facts from which to infer the other facts which it is sought to establish.[4]
  1. [5]
    There is room for intuitive reasoning but the Commission may not in the process of determining a question of fact substitute speculation for satisfaction on the balance of probabilities.[5]

Matters in Issue

  1. [6]
    The Regulator concedes, and the Commission accepts, that at the relevant time Mr Gambaro was a worker within the meaning of the Act.
  1. [7]
    The issues for determination by the Commission are whether:
  1. (i)
    Mr Gambaro sustained a personal injury;
  2. (ii)
    the injury arose out of, or in the course of, his employment; and
  3. (iii)
    his employment was a significant contributing factor to the injury.

The Workplace and Witnesses

  1. [8]
    Mr Gambaro was employed as a telesales consultant by TShop Biz Pty Ltd trading as Telstra Business Centre, Brisbane East and Sunshine Coast.  Mr Gambaro worked from an office at Slacks Creek.
  1. [9]
    A number of other employees worked at the workplace, including the following who were called by Mr Gambaro and gave evidence in the proceedings:
  • Adam Russell;
  • Phillip Wright;
  • Nicholas Olsen; and
  • Natasha Litster.
  1. [10]
    Neither Mr Gambaro nor any of the above witnesses remain employed by the business. 
  1. [11]
    Mr Gambaro also served Attendance Notices on three other employees.  However, these people did not attend the Commission.  Their failure to attend is subject to separate consideration.
  1. [12]
    Mr Gambaro also called his treating doctors, Dr Sinnathamby, Dr Lancashire and Dr Homan.  For reasons given later, Dr Sinnathamby did not give evidence.
  1. [13]
    The Regulator called the following witnesses from the workplace:
  • Deborah Williams, Telesales Manager, Telstra Business Centre, Slacks Creek; and
  • Suzanne Braines, Operations Manager, Telstra Business Centre, Slacks Creek.
  1. [14]
    Jodie Green, Customer Adviser, WorkCover was also called by the Regulator.

The injury

  1. [15]
    Mr Gambaro first attended his General Practitioner, Dr Sinnathamby, on 10 January 2016.  He was referred for an ultrasound which he underwent on 30 March.  It identified an inguinal hernia.  As a result Mr Gambaro was referred to Dr Ray Lancashire, Surgeon.
  1. [16]
    Dr Lancashire's evidence is that he was not satisfied from the history that Mr Gambaro had a hernia nor was he satisfied that the scan showed a hernia.  He believed Mr Gambaro was suffering from musculo-skeletal pain in the groin.[6]  However, he had to perform further investigations to rule out any other possible causes of Mr Gambaro's pain.[7]  This included surgery to remove a cord lipoma in the groin.  The surgery confirmed that Mr Gambaro did not have a hernia.  However, as his pain persisted after the surgery, Dr Lancashire diagnosed musculo-skeletal pain in the left groin.
  1. [17]
    After Dr Lancashire had concluded his role, Mr Gambaro consulted Dr Christopher Homan, a General Practitioner specialising in musculo-skeletal issues.  When he first saw Mr Gambaro on 9 August 2016, Dr Homan made a diagnosis of osteitis pubis. Although that diagnosis remains a possibility, his opinion now is that Mr Gambaro suffers from a musculo-skeletal injury around the pubic symphysis.
  1. [18]
    Based on the evidence of Drs Lancashire and Homan, I am satisfied that Mr Gambaro sustained an injury being a musculo-skeletal injury around the pubic symphysis.

How did the injury occur?

  1. [19]
    In essence, Mr Gambaro's case is that he sustained the musculo-skeletal injury when he tripped over an electrical cord attached to a radio in his workplace in late 2015. He produced a diagram of the office showing where various employees were located and the position of the radio.  The diagram was admitted into evidence although not all witnesses accepted their locations as allocated by Mr Gambaro.  The radio was positioned atop a pillar with its cord connecting to an extension cord that was plugged into a wall.  Again, there were varying views among the witnesses as to whether or not the cord was taped to the floor and which direction the cord took to reach the power point.  But these are not matters the Commission has to determine.
  1. [20]
    Mr Gambaro contends that as Dr Homan opined that Mr Gambaro's injury is consistent with tripping over a cord, he meets the legal requirements and is thus entitled to workers' compensation.
  1. [21]
    Although the Regulator ultimately conceded that Mr Gambaro tripped or stumbled over an electrical cord in the workplace, the evidence is not clear about when that occurred and more importantly, whether Mr Gambaro suffered an onset of pain either immediately or within the ensuing week or two of the incident.  The Regulator submits the cord tripping incident arose out of or in the course of Mr Gambaro's employment but the groin pain did not.  Alternatively, if the groin pain had some contribution from the cord tripping incident, which is denied, it was not a significant contributing factor to the groin pain.
  1. [22]
    It was Dr Homan's evidence that for a causal connection to be established between the trip and the musculo-skeletal condition present in 2016 depends on inguinal pain being identified generally within one to two weeks of the incident.[8]  Dr Lancashire expressed a similar opinion when he said that if the groin pain commenced after Mr Gambaro tripped over the cord then "it is absolutely possible and probable" that the trip caused the pain.[9]

When did the injury occur?

  1. [23]
    Mr Gambaro:  Mr Gambaro said in evidence in chief:

"So from the evidence provided, and to the best of my knowledge, between the 9th of November 2015 and the 18th December 2015 I tripped very badly over an extension cable which was in the business premises of Telstra Business Centre.  I pulled the - the chord (sic) out of the wall and then I also - the radio was on top of a pillar and the radio came off the pillar and smashed into pieces."[10]

  1. [24]
    He said the incident occurred around 3.00 pm, the afternoon break.
  1. [25]
    Mr Gambaro first consulted Dr Sinnathamby on 10 January 2016 and told him that he had "some groin pains in the inner ring"[11] and was given a referral for an ultrasound.  It was put to Mr Gambaro in cross-examination that he had not mentioned the cord tripping incident at the consultation on 10 January and that it was first raised on 12 August after multiple consultations had occurred.  Mr Gambaro denied these propositions.[12]  He said it was his honest belief that he had mentioned the cord incident to Dr Sinnathamby "around November/December 2015, whenever the pain started".  However, the first time he could find documentary evidence was 10 January when Dr Sinnathamby referred him for an ultrasound.[13]
  1. [26]
    Under cross-examination, Mr Gambaro was shown a complaint he made to Work Health and Safety on 7 April 2016.[14]  In that complaint, he recorded noticing inner ring pain on 10 January 2016 and on 29th/30 March an ultrasound identified the inguinal hernia.  Mr Gambaro attributed the pain to the poor ergonomics of the workstation rather than tripping over the cord.  He explained that he made a self‑diagnosis that the ergonomics caused his pain.[15]
  1. [27]
    Mr Gambaro was shown the online application for compensation he made on 8 April 2016.  In that form he repeats the incident description given in the Work Health and Safety Incident Notification Report Summary of 7 April, including the date of injury i.e., 10 January 2016, and the cause of the injury.
  1. [28]
    Mr Gambaro was cross-examined about his discussion with Ms Green, the WorkCover Customer Adviser, on 11 April 2016.  When he was taken to the entry that recorded that he was doing nothing at the time he noticed the hernia but had symptoms of pain in December and had nominated the poor ergonomics as the cause, he said "the pain gradually came, but it got really bad around the 10th of January 2016 when I got the referral."[16]  Later, he said "the pain started around November/December, and it just kept getting worse."[17]
  1. [29]
    He acknowledged under cross-examination that he did not think he mentioned tripping over the radio cord to Ms Green.  He explained he was unsure what had caused the pain.[18]
  1. [30]
    On 12 April 2016, Mr Gambaro consulted Dr Sinnathamby to obtain a WorkCover certificate.  Dr Sinnathamby states on the certificate that he was uncertain as to the cause of the injury.  Mr Gambaro said this was because he told Dr Sinnathamby both about the cord tripping incident and poor posture.  After seeing Dr Sinnathamby, Mr Gambaro faxed a handwritten application for compensation to WorkCover.  In it, there is no mention of the cord tripping incident but identifies the injury happened as a result of "bad posture at workstation, unstable office chair".  The date when symptoms were first experienced was nominated as November/December 2015.[19]
  1. [31]
    On the same date Mr Gambaro made two further complaints to Work Health and Safety about various issues in the workplace.  In the second of the complaints lodged on 12 April,[20] Mr Gambaro said he tripped over the radio extension cord cabling and strained/hurt his leg.  In response to the questions asked in the form of "Date aware of the issue", Mr Gambaro nominated 2nd November 2015 and 17 December 2015 for the "Date issue last apparent".  He denied in his evidence that this meant that any strain or pain had resolved by 17 December.  He said that "at that time … to the best of my knowledge" the incident occurred sometime within that span of dates.  He knew that the incident occurred between 9 November and 17 December, when the office closed for Christmas.[21]
  1. [32]
    After his 8 April application for compensation was rejected Mr Gambaro made a WorkCover claim for the trip on 16 August 2016.  During the course of the hearing, the Commission was informed by the Regulator that the original application for compensation concerned the groin injury secondary to posture and chairs in the workplace.  During the review of WorkCover's decision, the cord tripping incident was raised.  The Regulator's decision pertained to both claimed causes.[22]
  1. [33]
    Mr Gambaro initially said he was not sure what had caused the groin pain and was doing a lot of self-diagnosis in the belief he had a hernia.  For that reason he related the pain to poor posture and ergonomics.  He rejected the proposition that he had not associated the onset of his groin or inguinal pain with tripping over the radio cord.[23]  He also denied that prior to June or July 2016, he had not advised any person that he had associated the onset on his inguinal pain with tripping over the radio cord.  He said he told both Dr Sinnathamby and Dr Lancashire about the cord tripping incident and the poor posture.
  1. [34]
    Mr Wright:  Mr Wright gave evidence, in response to a question asked by the Commission, that the cord tripping incident occurred in early December and "probably the first week of December is my best recollection."[24]  The reason for his recollection was that it was around the time of his son's birthday on 8 December.  He said it was "definitely prior to the Christmas period".  It occurred in the morning because "it was the morning break period that I was walking back in from."[25]
  1. [35]
    Mr Olsen:  In relation to the date of the cord tripping incident Mr Olsen said under cross-examination:

"I don't remember the exact date, but it would have been around mid-December before - there was a lot of closures around that time of the business centre.  But I'm pretty sure it was pre-Christmas definitely."[26]

  1. [36]
    Mr Olsen could not recall the time of the day it occurred but believed "probably mid‑afternoon, a bit after lunch, from memory."[27]
  1. [37]
    Mr Gambaro's other witnesses:  Mr Russell could not recall an incident where Mr Gambaro tripped over the radio cord.  Ms Litster had ceased employment with the business before November/December 2015.
  1. [38]
    Ms Williams:  Ms Williams could not recall the date of the incident because it "wasn't a big deal at the time".[28]  When pressed, she believed it could have been towards the end of 2015 in the afternoon.
  1. [39]
    Ms Braines:  Ms Braines said she was informed that the radio had fallen down and was asked to replace it in late 2015.

What were the various recollections of the effect of the incident?

  1. [40]
    Mr Gambaro:  In his evidence in chief Mr Gambaro said that the trip caused him to fall forward but he could not recall whether any part of his body hit the floor.[29]  In response to the proposition that the trip "wasn't a particularly memorable occasion", Mr Gambaro replied that it was memorable for those who were happy the radio was broken but said:

"Why would it be memorable for me if I hurt myself in an injury?  I wasn't too happy about hurting myself and having to - not being able to exercise all this time."[30]

  1. [41]
    Mr Gambaro said that after the incident his leg and groin were a little bit tender that afternoon.  The pain commenced around the inner ring or pubic bone area in November/December 2015 and gradually got worse.[31]
  1. [42]
    Mr Wright:  Mr Wright said he witnessed Mr Gambaro sprawled on the floor and picking himself up after an obvious fall.[32]
  1. [43]
    In answer to a question from the Commission, Mr Wright said Mr Gambaro was in obvious pain after he had tripped:

"He was wincing from pain, and he was complaining about being sore on the inside of his leg and groin area."[33]

  1. [44]
    Under cross-examination, Mr Wright denied that he had only learned about Mr Gambaro's groin injury through later discussions with him.  He said:

"No.  On the day, Mr Gambaro was complaining of pain in his groin.  And - and one of the other staff members, Jay Cruz, was making a joke about it, and I specifically remember that he was - he was saying, you know, 'Mate, you haven't got any balls.  You've got nothing to hurt down there.'  And Michael was in tears and complaining and going, 'Mate, just leave me alone.  I'm in pain here.  And, you know, the injury is real.  I'm - I'm sore.'"[34]

  1. [45]
    In response to being informed that Mr Gambaro had given evidence that he had pain in his leg but not pain in his groin, Mr Wright said that "he was certainly clutching himself at the upper reaches of his leg, which I would regard as certainly being within the groin region."[35]
  1. [46]
    Mr Olsen:  Mr Olsen did not clearly witness the incident as it occurred "behind or a little bit adjacent to his desk".  He possibly saw Mr Gambaro stumble in his peripheral vision.  Although he initially said Mr Gambaro was "face flat on the ground", he then clarified that he was "possibly getting up at the time."[36]
  1. [47]
    Mr Olsen said Mr Gambaro was complaining about his knee after the incident.[37]
  1. [48]
    Ms Williams:  Ms Williams did not witness the incident as she was in her office.  She heard the radio crash and went out onto the floor.  By the time she arrived Mr Gambaro was back at his desk.[38]  He was red in the face, looked very frustrated and having "a temper tantrum".[39]  She was told by several staff that Mr Gambaro had kicked the cord and she recalled them laughing.[40]

Whether the injury/incident was reported

  1. [49]
    It is common ground that no formal incident report was made contemporaneously.  Mr Gambaro submitted a report on or around 5 July 2016.
  1. [50]
    He mentioned his injury on the day to Harry Dodeja and Ms Williams who said to carry on to 5 o'clock.[41]  Under cross-examination he agreed that his evidence was the first time that he mentioned telling Mr Dodeja of his pain.  He had only recalled this overnight in preparation for giving his evidence.
  1. [51]
    Mr Wright said he witnessed Mr Gambaro being called into Ms Williams' office and believed that Ms Braines was there as well.  Mr Olsen said he saw Mr Gambaro report the incident to Ms Williams.  He recalled Mr Gambaro advising that the radio cord was "very dangerous" and "something should be done about it". [42]
  1. [52]
    Mr Gambaro also claimed under cross-examination that he had told both Ms Braines and Ms Williams multiple times on the day that he had injured his leg.  This was denied by both Ms Williams and Ms Braines.  Ms Williams said "it was a lie" that she was advised on the day that Mr Gambaro had a sore leg as a result of the incident.  Under cross-examination, she said she had no recollection of Mr Gambaro going into her office on the day to inform her about his injuries.  Nor did she recall going to his cubicle to have a further discussion about the incident.  In answer to a question from the Commission, Ms Williams said that she did not recall these events because they did not happen.[43]  Had an injury occurred it would be recorded electronically and as no such record was made, the injury had not occurred.
  1. [53]
    Ms Braines was not advised that anyone had been injured.  The first she became aware of the claim for an injury was in late 2016 in preparation for these proceedings.[44]  Ms Braines had no recollection of discussing the incident with Mr Gambaro.[45]

The medical evidence

  1. [54]
    Dr Lancashire:  At the first consultation with Dr Lancashire on 25 May 2016, Mr Gambaro told him that he had started to develop left abdominal and left groin pain since November 2015.  However, he did not mention the cord tripping incident.
  1. [55]
    Mr Gambaro had a second consultation with Dr Lancashire on 17 June 2016. In the interim Mr Gambaro had forwarded more information to him.  Dr Lancashire's letter to Dr Sinnathamby reporting on that consultation contained the following:

"… He developed the pain in his left groin around 2015.  Around that time he had tripped over a radio cord at work and developed acute pain down his anterior thigh.  Since then he has had ongoing discomfort in the left groin which radiates up to the left iliac fossa and into the abdomen.  It is now a daily occurrence.  The left thigh pain eventually settled spontaneously.

…

All in all, my assessment is as follows:

Michael has suffered persistent daily and increasing left groin pain since around November 2015.  From the history it is not clear what precipitated this pain.  It seems it just came out of the blue.  The symptoms are not that of an inguinal hernia."

  1. [56]
    In his report to Dr Sinnathamby dated 12 September 2016, Dr Lancashire said, "Michael had moderately severe chronic groin pain since around November 2015."
  1. [57]
    In his oral evidence, Dr Lancashire agreed that the pain down the anterior thigh is not the same as inguinal pain.  While inguinal pain is related to the groin, the thigh pain is down the leg.  It remained his opinion that any number of musculo-skeletal injuries or chronic strain injury could cause the pain as could other sort of trauma.  If Mr Gambaro tripped over the radio cord and the groin pain began after that then it is probable that the trip caused the groin pain.  According to his notes, the thigh pain commenced immediately and around that time he had pain in the groin. He clarified:

"So the pain in the thigh commenced immediately.  And then around that time, there was pain down the - in the - ongoing discomfort in the groin following that.[46]

  1. [58]
    Dr Lancashire did not take a history of any other activities engaged in by Mr Gambro at the time.
  1. [59]
    Dr Homan:  Dr Homan was informed at the first consultation on 9 August 2016 by Mr Gambaro that he tripped on an electrical cord at work in November/December 2015.
  1. [60]
    He too did not take a detailed history of what Mr Gambaro had been doing both at work and in terms of exercise from late 2015 to the time of his presentation although he was aware of Mr Gambaro's significant pain and the surgical intervention.
  1. [61]
    Dr Homan said under cross-examination:

"I think that, for one, there's a logical consistency between the described mechanism and the - the injury and clinical signs that I'm seeing and that it's more likely a probability than a possibility in terms of correlation between the two."[47]

  1. [62]
    Dr Homan confirmed that a key tenet underpinning his opinion was based on the history given by Mr Gambaro that he had pain from shortly after the cord tripping incident.[48]

WorkCover

  1. [63]
    Ms Green gave evidence about the conversation she had with Mr Gambaro on 11 April 2016.  The conversation occurred as a result of Mr Gambaro lodging the online workers' compensation claim form and is recorded in a "Communications Report".[49]  Although she did not have a detailed recollection of the conversation, she explained that a computer program is used which saves notes typed while the Customer Adviser is talking.  Of relevance are the following questions and answers:

"What were you doing at (sic) time when you noticed the hernia, or OPT?  Nothing, noticed symptoms of pain in December 2015 and the symptoms became worse. (Worker) nominating work station and poor set up to have caused hernia.

…

Notice any lump or swelling immediately?  No just pain.  Pain getting worse since diagnosis

…

DFS? 10/1/16 - (Worker) advised that he saw GP after the pain was really bad when at the gym."

(Note:  OPT = over period of time;  DFS = date first seen.)

  1. [64]
    When the conversation becomes detailed, Ms Green makes notes on a pad then transfers that information to the computer program.    Again of relevance are the following entries she originally took as handwritten notes:

"(Worker) advised that he believes the injury is a result of work conditions (ergonomic set up of his work station)

…

(Worker) advised that he did attend gym but cannot recall what he did at the gym which caused him symptoms of pain and caused an injury."

  1. [65]
    The Communications Report also contains a record of Ms Green's discussion with Dr Sinnathamby on 18 April.  Ms Green records the doctor advising that he could not confirm the injury was work related or the mechanism of injury because the nominated event is sitting in an office chair.
  1. [66]
    The Commission notes that Mr Gambaro objected to the tender of the Communications Report and had also made complaints to WorkCover about Ms Green.

Witness Credit

  1. [67]
    Before considering the evidence it is necessary to address the credit of various witnesses.
  1. [68]
    Mr Gambaro is a self-represented litigant who frequently professed his lack of knowledge about proceedings.  The Commission acknowledges the difficulties that being in such a position brings and, during the hearing, endeavoured to assist him as much as possible without comprising my position or usual hearing procedures.  If his lack of knowledge was all that affected Mr Gambaro giving evidence there would be no issue about his credit. 
  1. [69]
    Mr Gambaro often said, in relation to the cause of his injury, that he was a lay person and not a doctor.  This is obviously a statement of fact but it was used repeatedly to justify his failure to connect the onset of his groin pain with the trip.  As he is a well‑educated man, I formed the view that the statement was used as a device to excuse this significant omission.  He also sought to excuse the uncomfortable positions in which he found himself whilst under cross‑examination by claiming a misunderstanding.  His persistent claim that he did not understand the difference between Work Health and Safety and WorkCover Queensland, despite lodging multiple complaints/applications to both agencies is a case in point.  Mr Gambaro was not a satisfactory witness. 
  1. [70]
    In addition, he was clearly a disaffected employee, making multiple complaints about his employer to Work Health and Safety and lodging unfair dismissal proceedings.  Of course any worker is entitled to make legitimate complaints about unsafe workplaces or practices or lodge an unfair dismissal application.  However, making three Work Health and Safety complaints within five days and two on one day demonstrates a level of vexation.  Motive is one aspect of probability and is a factor in assessing credibility.[50]  In this context, the reason for his belated connection of the cord tripping incident with the groin pain is a relevant factor to be taken into account in determining this appeal.
  1. [71]
    Mr Wright is also a disaffected employee who was liaising with Mr Gambaro about various workplace grievances.  I do not consider his evidence to be straightforward.
  1. [72]
    Ms Williams too was not without blemish.  Although she indicated she was a supporter of Mr Gambaro, she occasionally maligned him.  While this might have been in response to Mr Gambaro's many complaints which called her management into question, it affected her credit.
  1. [73]
    The evidence from Drs Homan and Lancashire is helpful but it suffers from neither of them taking a complete history.  This is readily understandable given they were the treating doctors and relied on the history given by Mr Gambaro.
  1. [74]
    Mr Gambaro submits that he was disadvantaged in his case by the failure of three of his witnesses to attend and give evidence.  Although this is the subject of separate consideration elsewhere, the effect of the absence of these witnesses can only be speculated upon.  While I shall bear Mr Gambaro's submission in mind when reaching a decision, the appeal is determined on the available evidence.
  1. [75]
    The Commission evaluates the evidence in the context of the findings made about credit and the effect of non-attendance of witnesses.

Consideration and Conclusions

  1. [76]
    On the basis of the Regulator's concession and in light of the evidence, the Commission accepts that Mr Gambaro tripped over an electrical cord at the workplace.  The short point to be determined in this appeal is whether the trip caused Mr Gambaro to sustain a groin injury.  The determination of this point addresses the legal requirements of s 32(1) of the Act of whether Mr Gambaro's injury arose out of or in the course of his employment and whether his employment was a significant contributing factor to his injury.  These are questions of fact to be determined by the Commission.  Usually the Commission would be assisted by the medical evidence.  In this case the medical evidence supports a probable causal link between the trip and the groin injury but on the proviso that the groin pain commenced within a week or two of the cord tripping incident.  The difficulty is that no clear evidence exists as to when the trip occurred or the groin pain commenced.
  1. [77]
    A dispute exists over whether any injury was reported on the day of the trip.  Mr Gambaro said he reported a leg injury to a number of people including Ms Williams and Ms Braines who both denied this was the case.   His evidence about belatedly recalling having informed Mr Dodeja is not credible given the detailed attention he has given to his injury.  It was also unable to be tested.  Mr Olsen's evidence does not show that Mr Gambaro identified an injury in his conversation with Ms Williams. 
  1. [78]
    The practice of the workplace appears to be that incidents not resulting in injury were not recorded. On balance, I am inclined to accept Ms Williams' evidence that had Mr Gambaro reported an injury she would have made a computer record of it.  The absence of a contemporaneous incident report identifying the date and any consequences of the incident does not assist in the resolution of this appeal. 
  1. [79]
    It is apparent from the outline of evidence set out above that the evidence about the relationship between the cord tripping incident and the groin injury is inconsistent.  Not only is Mr Gambaro's evidence to the Commission inconsistent but there are inconsistencies between the evidence he gave to the Commission, and the information he provided to other agencies and treating doctors.  Inconsistencies also exist between his evidence and that of other lay witnesses as well as between the other lay witnesses.
  1. [80]
    Greater clarity about when the incident occurred and its effects might well have been gained had Dr Sinnathamby appeared as a witness.  Although he was on Mr Gambaro's witness list, he did not ultimately give evidence.  There is some dispute between the parties as to the reason for this.
  1. [81]
    At a Mention held on 2 February 2017, the Regulator said Dr Sinnathamby would be required for one hour of cross-examination.  On the first day of the substantive hearing, Dr Sinnathamby was called to give evidence by telephone.  He was unavailable and the Practice Manager advised the Commission that the doctor did not want to give evidence and was not ready.[51]  However, as Mr Gambaro advised that he had spoken to Dr Sinnathamby and he had agreed to provide evidence, the Commission allowed Mr Gambaro to try to contact Dr Sinnathamby over the luncheon adjournment.
  1. [82]
    On resumption, Mr Gambaro advised that Dr Sinnathamby was willing to give evidence and he was scheduled for the following day.  At the commencement of the second day of the hearing Mr Gambaro informed the Commission that Dr Sinnathamby would not be giving evidence because the Regulator had "unfairly" said one hour would be required.  Dr Sinnathamby was a bulk billing doctor who was very busy all day.  On that basis Mr Gambaro declined to call Dr Sinnathamby.
  1. [83]
    In the course of those submissions Mr Gambaro said that Dr Sinnathamby had provided "a lot of documentation", however the Commission advised that the documentation had not been produced in evidence.  The Commission had previously informed Mr Gambaro that the appeal could only be decided on the basis of the oral evidence given and the documentation tendered in evidence.  The Commission had sought to ensure that Mr Gambaro tendered all relevant and admissible documentary evidence either through his own evidence or that of the other witnesses.
  1. [84]
    The information given by Mr Gambaro to Dr Sinnathamby especially on 10 January 2016 is quite critical to the resolution of this case and the medical records for that date are not before me.  Absent the evidence from Dr Sinnathamby and his medical records, the Commission is left with conflicting evidence from Mr Gambaro about the information he gave to the doctor on 10 January.  He variously said he had raised the cord tripping incident with Dr Sinnathamby that day but also that he had mentioned it "around November/December, whenever the pain started."  The referral for an ultrasound given to him on 10 January does not substantiate that Mr Gambaro told Dr Sinnathamby of the cord tripping incident only that he informed him of his groin pain on that day.
  1. [85]
    On 12 April 2016 Dr Sinnathamby issued a WorkCover medical certificate stating that he was uncertain as to the cause of the injury.  Although Mr Gambaro asserted that he had told Dr Sinnathamby of the cord tripping incident by that date, this was not recorded in the certificate as to how the injury happened; rather only poor posture and an unstable office chair are identified.  The record made by Ms Green on 18 April of her conversation with Dr Sinnathamby lends weight to the view that he was uncertain of the cause of the pain.
  1. [86]
    For these reasons I am not satisfied that Mr Gambaro told Dr Sinnathamby of the cord tripping incident on 10 January 2016 nor did he relate the groin pain to that incident at that consultation.
  1. [87]
    Various dates of injury were specified in the documents tendered.  In the complaint made to Work Health and Safety on 7 April 2016, Mr Gambaro nominated the date of injury as 10 January.
  1. [88]
    The online claim form submitted by Mr Gambaro the following day identifies November/December 2015 as the date the symptoms were first experienced.  Mr Gambaro told Ms Green on 11 April that he had pain from December 2015 but acknowledged he had told her that he had attended on Dr Sinnathamby on 10 January after he had experienced groin pain while performing exercises at the gym.[52]
  1. [89]
    In the second of his Work Health and Safety complaints made on 12 April Mr Gambaro provided a time span from 2 November to 17 December 2015.  Curiously, he said the date of 2 November was selected as he was not in the office at the time.[53]  In his oral evidence, the date was narrowed slightly to 9 November to 17 or 18 December "because it was just before Christmas 2015 when it happened".[54]
  1. [90]
    Mr Gambaro said he was able to narrow the time frame based on the evidence provided and to the best of his recollection.  However, he clearly has no recollection of the date of the incident.  His best evidence is that it occurred in about a six week period in November/December 2015 "because of the music that was played".[55]
  1. [91]
    I also consider that he does not have an independent recollection in light of his evidence that he has relied on the evidence provided.  That, I understand, is a reference to statements made by others and, which I add, were not before the Commission.  The date of 9 November was selected as this was when Mr Olsen commenced employment and variously 17 or 18 December because one of these was the date of the Christmas closure.
  1. [92]
    Mr Wright was more precise in his evidence about the date of the incident, being around 8 December.  Mr Olsen said it happened in mid-December.  This is about as consistent as the evidence gets.  If accepted, this timing allows for the possibility that the groin pain commenced within the period allowed for by Dr Homan, worsening and then being reported to Dr Sinnathamby on 10 January.  However, that scenario makes it more likely for Mr Gambaro to have raised the trip with Dr Sinnathamby on that date and I have found he did not.  It also does not explain why he did not mention the trip to Dr Lancashire at the first consultation or why he told him the pain commenced in November.  Moreover, it does nothing to explain why Mr Gambaro cannot recall more precisely when an incident in the workplace occurred which led, he claims, to him suffering groin pain which worsened over time and is ongoing.
  1. [93]
    Mr Wright described Mr Gambaro as being "sprawled on the floor".  However, Mr Gambaro has no clear recollection of the outcome of his trip.  In particular, he had no recollection of whether his whole body was landed on the floor or whether it was just his hands and knees connected; only that he fell forwards.  The evidence of Mr Wright and Ms Williams is that other employees were laughing at Mr Gambaro's misfortune.  It is reasonable to think, that a trip which caused his co-workers to laugh at him but more relevantly, resulted in groin pain as alleged, would be memorable.  Yet Mr Gambaro's evidence on this point shows that it was not.
  1. [94]
    A precise date of the incident is not necessarily fatal to the case but when the establishment of a causal link requires, at most, a one to two week gap between the incident and the onset of pain, a much narrower time frame for when the incident occurred is required than that which Mr Gambaro has been able to give.
  1. [95]
    The descriptions of the effects of the trip are also inconsistent.  Ms Williams said that Mr Gambaro did not sustain an injury but he was embarrassed about having tripped.  Mr Olsen referred to Mr Gambaro being concerned about his knee.  However, at no point has Mr Gambaro complained about his knee.  I consider Mr Olsen to have been mistaken.  Mr Wright described Mr Gambaro being in considerable distress with groin pain.  Mr Wright's evidence is contrary to that of Mr Gambaro who described nothing like the pain Mr Wright mentioned.  I consider that Mr Wright has embellished his evidence.
  1. [96]
    Mr Wright also gave evidence of the time off work taken by Mr Gambaro to attend to his injury, however, this was not the evidence of Mr Gambaro who said he was working very hard from January through to March because of the effects of the NBN rollout in Queensland.  It was only when the Telstra outage occurred in March that he had time to attend for the ultrasound, the referral for which Dr Sinnathamby had given him in January.  The Commission rejects the evidence of Mr Wright.
  1. [97]
    Mr Gambaro said he experienced leg pain and groin pain as a result of the cord tripping incident.  However, this evidence is at odds with the reports he made in the Work Health and Safety complaints.  While the first complaint of 7 April noted inner ring pain this was not related to the cord tripping incident.  Although Mr Gambaro mentioned the cord tripping incident in his second complaint of 12 April, he referred only to a strained/hurt leg.
  1. [98]
    His evidence is also inconsistent with the history he gave to Dr Lancashire.  He did not mention the cord tripping incident at the first consultation but advised of groin pain.  After WorkCover had rejected his claim, Mr Gambaro provided more information to Dr Lancashire and told him of his trip over a cord at the second consultation.  In his letter of 17 June 2016 to Dr Sinnathamby, Dr Lancashire referred to Mr Gambaro suffering the acute left anterior thigh pain which developed after the trip and eventually settled.  Dr Lancashire said it was not clear what precipitated the groin pain and it appeared to have just come out of the blue.  I note that in his oral evidence and in his report of 12 September 2016 Dr Lancashire seemed to qualify his written report.  In his oral evidence he referred to the occurrence of groin pain after the thigh pain and was prepared to relate the incidence of groin pain to the trip if it occurred after the trip.
  1. [99]
    In an email to the Regulator dated 17 May provided as part of the review process, Mr Gambaro mentioned a number of possible causes of his groin pain but neglected to mention the cord tripping incident.
  1. [100]
    Mr Gambaro explained that when the hernia was found on the ultrasound he was confused as to what had caused it and was under duress as a result of having his employment terminated.  He was trying to find reasons the hernia had occurred and believed factors such as poor posture and ergonomics in the workplace caused it.  When the hernia was found not to be present he realised he was mistaken in focussing on these factors.  However, his evidence also shows that he was not just focussing on the cause of the hernia but was seeking to establish the cause of the groin pain.  He was concerned about a range of other possible causes, including cancer, lymphoma and "something being stuck inside".[56]
  1. [101]
    His evidence about his active consideration of other possible causes of his groin pain highlights that he was not certain that poor posture and ergonomics were to blame.  In those circumstances, I have great difficulty accepting that if the groin pain commenced at the time of the cord tripping incident or within one to two weeks of it, Mr Gambaro would not have considered a connection between the two events then.  As I found earlier, Dr Sinnathamby was not informed of the cord tripping incident on 10 January nor was it reported to Dr Lancashire until June, after he had been advised a hernia was unlikely to be the cause of his groin pain and his WorkCover claim had been rejected.  Although the incident was included in the second of the Work Health and Safety complaints, no mention was made of groin pain resulting.
  1. [102]
    I have formed the view that Mr Gambaro began to alter his case after WorkCover rejected his claim.  Thereafter, he belatedly started to assert a connection between a trip in the workplace and his groin pain.  The reason that he is unable to more accurately identify when the trip occurred is because the groin pain did not commence as a consequence of it, i.e., either immediately or within one to two weeks of it.
  1. [103]
    I am not satisfied that Mr Gambaro has discharged his onus of proof.  Although the medical evidence supports a causal link, those opinions are predicated on the onset of groin pain being proximate to the incident.  Whether the link can be established is a matter of fact to be determined by the Commission and is required in order for the injury to meet the legal requirements of s 32(1) of the Act.  The balance of probabilities is not satisfied by a mere possibility of a compensable injury.  In this case insufficient evidence exists about the objective fact of when the incident occurred to infer the other important fact about the timing of the onset of groin pain.  The Commission may not in the process of determining a question of fact substitute speculation for satisfaction on the balance of probabilities.
  1. [104]
    Accordingly, for the reasons set out, I find that Mr Gambaro's injury did not arise out of, or in the course of, his employment and that his employment was not a significant contributing factor to it.

Orders

  1. [105]
    I make the following orders:
  1.  The appeal is dismissed;
  2.  The decision of the Respondent dated 27 July 2016 is confirmed; and
  3. The Appellant is to pay the Respondent'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] Ex. 8.

[2] Q-COMP v Hetherington (2004) 176 QGIG 493.

[3] Rossmuller v Q-COMP (C/2009/36) - decision http://www.qirc.qld.gov.au, [2]; State of Queensland (Queensland Health) v Q-Comp and Beverley Coyne (2003) 172 QGIG 1447.

[4] MacArthur v WorkCover Queensland (2001) 167 QGIG 100, 101 including cases cited.

[5] Nilsson v Q-Comp (2008) 189 QGIG 523, 526.

[6] T2-82.

[7] T2-82.

[8] T2-58

[9] T2-84.

[10] T2-5.

[11] T2-8.

[12] T2-27, 45.

[13] T2-45, 46.

[14] Ex. 6.

[15] T2-25.

[16] T2-29.

[17] T2-29.

[18] T2-30.

[19] T2-32.

[20] Ex. 2.

[21] T2-35.

[22] T2-52.

[23] T2-38.

[24] T2-76.

[25] T2-78.

[26] T2-104

[27] T2-104.

[28] T3-20.

[29] T2-19.

[30] T2-19.

[31] T2-8.

[32] T2-71.

[33] T2-72.

[34] T2-74, 75.

[35] T2-75.

[36] T2-105.

[37] T2-105.

[38] T3-15, 16.

[39] T3-18, 32.

[40] T3-33.

[41] T2-8.

[42] T2-106.

[43] T3-28.

[44] T3-42, 43.

[45] T3-44.

[46] T2-85.

[47] T2-57.

[48] T2-58.

[49] Ex. 16.

[50] Perkins v Woolworths Pty Ltd (ACN 000 014 675) [2017] QDC 1, 7 quoting Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403, 431.

[51] T2-49.

[52] T2-29.

[53] T2-35.

[54] T2-35.

[55] T2-10.

[56] T2-46.

Close

Editorial Notes

  • Published Case Name:

    Michael Alexander Gambaro v Workers' Compensation Regulator

  • Shortened Case Name:

    Gambaro v Workers' Compensation Regulator

  • MNC:

    [2017] QIRC 33

  • Court:

    QIRC

  • Judge(s):

    Fisher IC

  • Date:

    11 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
MacArthur v WorkCover Queensland (2001) 167 QGIG 100
2 citations
Jump To
Cite 1 - (2001) 167 QGIG 100
Cite 2 - (2001) 167 QGIG 100
Nilsson v Q-Comp (2008) 189 QGIG 523
2 citations
Jump To
Cite 1 - (2008) 189 QGIG 523
Cite 2 - (2008) 189 QGIG 523
Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403
2 citations
Jump To
Cite 1 - [1968] 2 Lloyd's Rep 403
Cite 2 - [1968] 2 Lloyd's Rep 403
Perkins v Woolworths Pty Ltd (ACN 000 014 675) [2017] QDC 1
2 citations
Jump To
Cite 1 - [2017] QDC 1
Cite 2 - [2017] QDC 1
Q-Comp v Hetherington (2004) 176 QGIG 493
2 citations
Jump To
Cite 1 - (2004) 176 QGIG 493
Cite 2 - (2004) 176 QGIG 493
State of Queensland v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447
2 citations
Jump To
Cite 1 - (2003) 172 QGIG 1447
Cite 2 - (2003) 172 QGIG 1447

Cases Citing

Case NameFull CitationFrequency
Gambaro v Workers' Compensation Regulator [2017] ICQ 53 citations
RW & G Johnston Pty Ltd v Workers' Compensation Regulator [2024] QIRC 2652 citations
1

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