Kenny v Workers' Compensation Regulator
[2017] QIRC 40
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- Unreported Judgment
- Kenny v Workers' Compensation Regulator[2017] QIRC 40
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Kenny v Workers' Compensation Regulator[2017] QIRC 40
Kenny v Workers' Compensation Regulator[2017] QIRC 40
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Kenny v Workers' Compensation Regulator [2017] QIRC 040 |
PARTIES: | John Douglas Kenny (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO: | WC/2016/96 |
PROCEEDING: | Appeal against decision of the Workers' Compensation Regulator |
DELIVERED ON: | 11 May 2017 |
HEARING DATES: | 7 December 2016 (Hearing) 27 January 2017 (Appellant Submissions) 27 February 2017 (Regulator Submissions) 10 March 2017 (Appellant Submissions in Reply) |
HEARD AT: | Townsville |
MEMBER: | Deputy President Swan |
ORDERS |
|
CATCHWORDS: | WORKERS' COMPENSATION – APPEAL AGAINST DECISION – decision of Workers' Compensation Regulator – physical injury – Injury claimed, "lateral medullary syndrome (stroke) likely secondary to vertebral artery dissection" and "loss of teeth" – worker employed in isolated location as excavator driver – claimed that excavator door hit him in the side of face as he was seeking to retrieve esky from the cabin – Regulator claims incident did not occur – Commission accepts injury as described by Appellant, did occur – medical evidence as to possible causation of secondary injury – uncertainty as to whether dissection of Appellant's carotid artery was caused by trauma or artherosclerotic disease – lack of certainty in medical opinion does not, of necessity, preclude the Appellant's claim from being accepted – Appeal granted – Regulator to pay Appellant's cost of, and incidental to Appeal. |
CASES: | Workers' Compensation and Rehabilitation Act 2003 MacArthur v WorkCover Queensland (2001) 167 QGIG 100 Girlock Sales Pty Ltd v Hurrell (1982) 149 CLR 155 Tabet v Gett [2010] 240 CLR 537 Groos v WorkCover Queensland 165 QGIG 106 Cowen v Bunnings Group Ltd [2014] QSC 301 |
APPEARANCES: | Mr J.A. Greggery of Counsel, instructed by Conolly Suthers Lawyers, for the Appellant. Mr J. Merrell of Counsel, directly instructed for the Workers' Compensation Regulator |
Decision
- [1]Mr John Douglas Kenny (the Appellant) seeks to appeal the Review Decision of the Workers' Compensation Regulator (the Regulator) dated 11 May 2016. In that decision the Regulator upheld the original WorkCover Queensland decision to reject the Appellant's Application for Compensation under s 32 of the Workers Compensation and Rehabilitation Act 2003 (the Act).
- [2]The claimed injury in the Appellant's Notice of Appeal is that of "lateral medullary syndrome (stroke) likely secondary to vertebral artery dissection" and "loss of teeth".
ONUS OF PROOF AND LEGISLATION
- [3]The Appellant bears the onus of proof to establish that, on the balance of probabilities, his injury arose out of, or in the course of, his employment and that the employment is a significant contributing factor to the injury, pursuant to s 32 of the Act.
WITNESSES
- [3]Witnesses for the Appellant were:
- Mr John Douglas Kenny, the Appellant;
- Ms Hine Manu White, the Appellant's partner;
- Dr Lakshmi Narayan Reddy Kamasani, Dentist; and
- Dr Francis Gerard Quigley, Vascular Surgeon
- [4]Witnesses for the Regulator were:
- Ms Hayley Jade Holcroft, Area Manager, Toowoomba Branch, Skilled Group Limited; and
- Ms Tarana Hayat, Claims Representative, WorkCover Queensland.
APPELLANT'S CONTENTIONS
- [5]The Appellant is a worker within the meaning of s 11 of the Act.
- [6]The injuries suffered occurred on 8 April 2013.
- [7]The claim is that the Appellant's injuries were caused by being hit by an excavator door in the course of performing his employment.
- [8]It is claimed that his injuries arose out, or in the course, of his employment and that the employment is a significant contributing factor to the injury.
- [9]The Appellant lodged a Workers' Compensation Claim dated 10 October 2013, describing his injury as "lateral medullary syndrome (stroke) likely secondary to vertebral artery dissection" and he stated that the cause of the injury was "Trauma - door hit (L) side of his head - and fall at airport 10/4/13".
GENERAL OVERVIEW OF THE APPELLANT'S CLAIM
- [10]The Appellant was employed by Skilled Group Limited (Skilled) on 22 March 2013, as a plant operator. Before the commencement of this employment the Appellant had passed the requisite medical examination.
- [11]The Appellant was hired by Skilled to a "host employer", viz., Watpac Civil & Mining Pty Ltd (Watpac). He worked as an excavator operator on a road construction site between Charleville and Roma (the worksite).
- [12]The Appellant was a fly-in/fly-out worker with his primary residence being Townsville.
- [13]The Appellant worked at the worksite for 18 days without a break from 22 March 2013 to 8 April 2013. At that time, he said he had no contact with any representatives from Skilled and this was confirmed by Ms Hayley Holcroft (Area Manager, Skilled) [T1-76]. The Appellant also stated that his work camp was approximately 45 minutes' drive away from his worksite.
- [14]On 8 April 2013, while working alone at the worksite, an incident occurred around 10.00 am. The Appellant said he had stopped the excavator for smoko but, once outside the cabin, had realised that he had forgotten to get his esky out of the cabin of the excavator. He reached inside and at that time, the cabin door unexpectedly closed and it had "hit the side of here … side of the face". [T1-21, L14]
- [15]The Appellant left that worksite later that day and another employee drove him to the Charleville airport. When arriving at the Townsville airport, the Appellant says that a person running near him caused him to stumble forward and he struck his face on a luggage trolley causing his mouth to start bleeding again.
- [16]For the following six days the Appellant remained at his home and suffered from headaches and pain to his mouth, jaw and neck. After those six days, he returned to the worksite. He worked from 14 April 2013 to 20 April 2013. He was experiencing increasing headaches at that time. When at home on 20 April 2013, he pulled out some of his damaged teeth. During this time he says that his headaches continued.
- [17]Prior to the event of 8 April 2013, the Appellant attended the Wulguru Health and Wellbeing Centre in Townsville on 7 March 2013. The medical records showed that he had been "feeling well"; "nil headaches". [Exhibit 9]
- [18]On 11 September 2013, while the Appellant was assisting a friend with carpentry work in Townsville, he experienced stroke symptoms and went to the Townsville Hospital by Ambulance. At that time the Appellant said he was suffering from mild stroke symptoms. He was discharged on that day.
- [19]On 26 September 2013, the Appellant was admitted to the Townsville Hospital with continuing stroke symptoms. He was discharged on 18 October 2013. When in hospital, the Appellant was advised to apply for Workers' Compensation and provided that claim together with an accompanying Medical Certificate. [Exhibit 6]
- [20]On 31 January 2014, the Appellant underwent a right carotid endarterectomy and on 17 February 2014, he underwent a left carotid endarterectomy.
- [21]The Appellant now relies upon medication to function and suffers from continued stroke symptoms. He is unable to work as a plant operator.
APPELLANT'S SUBMISSIONS
Summary of Appellant's Personal and Work History
- [22]The Appellant has a work background which consisted mostly of doing manual work, concrete pool building and construction work.
- [23]Construction work first was undertaken by the Appellant with the company J.J. McDonald in 1996. That business later became Watpac and he stayed with that company for some time performing a range of duties including manual labour and machinery operating work. While with Watpac he gained his excavator ticket in or about 2009 or 2010. This work finished in 2012 when Watpac reduced the size of its workforce. In early 2013, the Appellant was contacted by his former Supervisor from Watpac, viz., Mr Peterson, with the offer to work as an excavator operator on a Watpac road construction between Roma and Charleville.
Appellant's Evidence of Event of 8 April 2013
- [24]While at work, the Appellant was required to operate a 30 tonne excavator identified as a "CAT 330 DL Hydraulic Excavator".
- [25]The type of work performed "required the Appellant to remove gravel from an old section of the road and load it into three semi-trailers, each with three trailers running constantly to transport the road base for it to be re-used on another section of the project". [Appellant's Submissions, point 9]
- [26]Towards the end of that part of the operation, the Appellant was required to create a stockpile of dirt. This would be used to complete the project. The Appellant operated that machine which in effect removed rocks from the soil before it was put onto the stockpile by a conveyor belt.
- [27]Generally, the Appellant said that other employees would be working in the vicinity of where he worked. However on the day of the alleged event, viz., 8 April 2013, he was working alone.
- [28]The Appellant kept his food in an esky inside the cabin of the excavator. On 8 April 2013, when he got out of the excavator to have his lunch, he had forgotten to retrieve his esky from the cabin.
- [29]The excavator was described by the Appellant as a large machine and in order to get out of the cabin, he had to open the door "which was hinged at the rear, and turn to face into the cab while climbing onto the metal track and then from the track onto the ground" [Appellant's Submissions, point 11]. The door of the excavator opened from right to left.
- [30]The Appellant described how, after grabbing his esky, he extricated himself from the cabin of the excavator as follows:
"As I'm pulling me esky out, I'm - I'm sort of - rotating back around clockwise to the front…"
And
"… Hit the side of here - side of the face." [T1-21, L11-15]
- [31]The Transcript identifies Counsel for the Appellant asking the Appellant:
"For the record, you're holding your hand on the left side of your face, over your … cheek and ear?"
The response was:
"Yeah. That's the area I got hit."
- [32]Counsel for the Appellant asked:
"Did you have any injuries to your nose?"
- [33]The response was:
"No. Nothing done in me face." [T1-21, L17-22]
- [34]The Appellant said that:
"I landed down the bottom of the stockpile. I come to from the stockpile. And I just walked back up and was trying to work out what had hit me." [T1-21, L27-30]
- [35]In attempting to do this, the Appellant had noticed that the door was open about 100mm; that the excavator was at a slight angle and that it was a windy day. He said that all that could explain the event to him was the force of the blow and the position of the door.
- [36]The work being performed by the Appellant was in a remote location. When the incident occurred the Appellant said that he knew he had damaged his teeth as his mouth was bleeding and all he could do at the time was to clean his mouth out.
- [37]He waited by his machine, feeling giddy for about 45 minutes before being collected by another worker "Thomas". Thomas told the Appellant that a flight had been arranged at short notice [T1-22, L24-39]. The Appellant said he told Thomas what had happened and that he'd been "whacked in me mouth", and he was still trying to understand what had occurred to him.
- [38]The Appellant arrived at the Townsville airport around 10.00pm to 10.30pm and was met by his partner, Ms White. Ms White said she noticed his mouth was swollen and that he had difficulty speaking. [T1-66]
- [39]A further incident occurred at Townsville airport where a person in in his vicinity had caused him to lose his balance and he stumbled into a trolley and bumped his mouth. He described the bump to his mouth as "just touched - just enough to get it just to start bleeding like it was [indistinct] again" [T1-27, L19-20]. Ms White said that the Appellant had also told her of this incident which had just occurred inside the airport terminal.
- [40]The Appellant said that he had returned to the workplace some three days later. However, the Appellant's travel itinerary says he returned to work on 14 April 2013. [Exhibit 3]
- [41]Between the dates of 8 and 14 April 2013, the Appellant had not seen a General Practitioner and continued to work until 21 April 2013, without a break.
- [42]His explanation as to how he managed with his injury at that time was:
"So I just pulled - pulled that little bit of skin off it, just gargled warm, salty water couple of times through the night. And I went to bed. And then I just waited - took some Panadol and just waited for all the swelling to go down. And it was coming good over a couple of days. It was getting better. And then Michael Petersen rang up to do - to see if I could do a couple more days. So I ended up going back and doing a couple more days. There was nothing I could do with me - me mouth at the moment because it just had to heal. I said, well, it won't be too bad inside a cab because, you know, it's air conditioned. It's sealed off." [T1-29, L20-28]
REGULATOR'S EVIDENCE
- [43]What is not challenged by the Regulator is:
- That the Appellant was working on the day in question on an excavator;
- That the cabin door was on the left hand side of the cabin facing the front;
- That the door to the cabin opened outward from inside the cabin;
- That the door would have closed inwards; and
- That if the event occurred, and the Appellant was on the outside of the excavator door when trying to retrieve his esky with his left hand, the door would have closed inwards towards the cabin in a clockwise direction i.e. toward the front of the excavator in the direction of the front windshield.
- [44]The Regulator's primary submission is that it has rejected the Appellant's claim that an injury of the type described by him, did not occur on 8 April 2013. It states that the "lateral medullary syndrome" or stroke, suffered by the Appellant in September 2013, did not arise out of or in the course of his employment, where his employment was a significant contributing factor to that injury.
- [45]The Regulator states that the incident with the door of the excavator did not occur at all because the event described by the Appellant was inherently improbable, or in the alternative, even if the Appellant suffered the trauma that he described, given the Appellant's history of diabetes, hypertension and smoking and the chronic disease of his vertebral artery, the Commission could not be satisfied on the balance of probabilities, that the trauma described, had a causal connection with his stroke.
- [46]In elaborating upon these issues, the Regulator identified those occasions where it found the Appellant's evidence to be inconsistent with his Evidence In-Chief.
The Appellant's Evidence In-Chief about the Alleged Incident
- [47]The Appellant's evidence commented upon by the Regulator was:
"I was in - I went to step out to have something to eat. I - I'd shut the machine down. I was sitting in it for about ten minutes, till it cooled down. I shut it down. I stepped down onto the track and stepped down. And I turned around on my left-hand side to go on the seat where - I normally leave my lunch box on that side, because it's out of the way of the controls. I reached in with me left hand and pulled me smoko box out. And, just as I turned around towards the front to straight up - I don't know - I could just see in my eye that - something that's fast - but - bang. It all happened so quick. And I couldn't work out what had happened, because it virtually had knocked me out. And I just remember sitting on the track, trying to think what had gone wrong." [T1-18, L14-23]
Regulator's Comment:
"The Appellant's esky was on the far right hand side of the cabin of the excavator which meant that the Appellant had to reach over the seat in the cabin of the excavator, with his left hand, to retrieve his esky." [Regulator's Submissions, point 13 and T1-18, L43-46]
The Appellant's Evidence about what he alleges happened after the Excavator door hit him
- [48]The Appellant completed a form from Skilled, dated 19 March 2013, acknowledging the process to be undertaken if an injury occurred at the workplace. The Appellant correctly answered a question in that document which stated:
"6. If I suffer a work related injury or illness, I must:
(a) Report it immediately to the Client Representative and/or SKILLED Representative/Branch." [Exhibit 7]
- [49]The Regulator queried the Appellant's account of the incident. It cited the Appellant's evidence given after the Appellant said he had been hit by the door:
"… couldn't work out what had happened, because it virtually knocked me out. And I just remember sitting on the track, trying to think what had gone wrong." [T1-18, L21-23]
And later:
"Yeah. Well, I got down. Where I was - I was actually on the stockpile. When the door shut - when it hit me, I landed down the bottom of the stockpile. I'd come to from the stockpile. And I just walked back up and was trying to work out what had hit me." [T1-21, L27-30]
Regulator's Comment:
"This was the only evidence the Appellant gave in his Evidence In-Chief - when describing what happened when he says the door of the excavator hit him - about a stockpile." [Regulator's Submissions, point 17]
Inconsistency concerning the time the Alleged Incident Occurred
- [50]The Regulator submitted that the Appellant, had nominated the time of 12.00pm midday on 8 April 2013, as the time when he said the incident occurred. Later, the Appellant said he had stopped work on that day around 10.00am.
The Location on the Appellant's head where he says the door hit him
- [51]The Regulator submitted that this was an important distinction because of the evidence given by Vascular Surgeon, viz., Dr Quigley. The point being made by Dr Quigley in his evidence favouring an explanation of trauma having occurred to the Appellant was his reference to "the fact that the trauma was on the left side of the neck". Dr Quigley had said:
"The main factors in favour of trauma being associated with the stroke are the fact that the trauma was on the left side of the neck, he had symptoms from that time up until the presentation with stroke, the cause of the stroke was due to occlusion of the left vertebral artery and the appearances of the occlusion were consistent with a dissection secondary to trauma." [Exhibit 12 - page 2]
[*Dr Quigley's Report and evidence will be addressed more fully under the heading, Medical Evidence.]
Regulator's Comments:
The Regulator highlights the different descriptions given by the Appellant regarding where on his body he was hit by the door e.g. "hit on the left cheek and ear" and "struck on the left side of the head, neck and face", by the cabin door. The Regulator submits that this inconsistency must "cast doubt on his veracity". [Regulator's Submissions, point 24]
The Allegation in Cross-Examination as to Where the Excavator was Situated
- [52]When the Appellant had been shown Exhibit [2] (a catalogue which shows pictures of and describes the dimensions of the excavator) and at page 13 (a picture of a person with his hands on the tracks of the excavator), the Appellant agreed that as his height was about 5 feet and 6 inches and the bottom of the door would come up to about his elbow height.
- [53]Against that background, the Appellant was asked that if the door had closed when he was trying to get his esky as described whether it would have hit him on the elbow or shoulder and would not have hit the left side of his face. When questioned on that scenario, the Appellant responded:
"It is, the way it was located though. The way it was sitting on the mound, I was sitting on the mound with the track like but the actual dirt pile come from there, just dropped down. So I wasn't on a flat ground. The actual dirt pile was just enough for the tracks to sit on it. The tracks were just sitting on there, and I had from there - probably three metres of dirt like that, so I was down on quite a ‑ quite a steep slope." [T1-56, L28-33]
Regulator's comments
The Regulator states that this evidence was in contrast to the evidence given by the Appellant where he had referred to standing "flat on the ground'.
- [54]In Cross-Examination, the Appellant said he had been near the cabin of the excavator when he was hit by the cabin door. He stated:
"But the way I was located, I was on a turkey's nest which is a very steep decline like that which to climb up, you've actually got to use your hands to go up to get in the - to even get up on the track, I've got to grab the track to get up to get in. The way - way you explained it to me, there's no way the door hit me. If I'm standing on that - out [indistinct] like that, I was just - me head was just above the door to even reach in to get me esky." [T1-57, L26-31]
- [55]The Regulator stated that the Appellant had not said this during Evidence In-Chief. That evidence had not traversed the claim that he had to grab the track "to get up to get in" to the cabin, and that his head was just above the door when he reached in to get his esky.
- [56]The Regulator said that the Appellant had not, during his Evidence In-Chief, referred to a "steep slope" or a "turkey's nest"; that when he retrieved his esky he was standing on a steep decline and was 300 to 400 centimeters down lower from the excavator and that the incline was 45 degrees.
- [57]The Regulator claimed that it was only when the Appellant was challenged during Cross‑Examination about the distance between the ground and the door of the excavator, relative to his height, that his version of events altered.
- [58]The Regulator stated:
"The only explanation, having regard to the Appellant's Evidence In-Chief, that he was standing flat on ground when he reached into the cabin with his left hand to retrieve the esky on the far side of the cabin and if he was 300 or 400cm down lower than the excavator, would be if his arms were extraordinarily long."
- [59]The Regulator submits that:
"An excavator, of the size the Appellant was working in, had to have its tracks on flat ground - that is not on ground on an incline - immediately adjacent to and around the tracks otherwise the excavator would have toppled over. There must have been flat ground immediately adjacent to and around the tracks of the excavator for him to have stood on. In that case, the door if it did close, given the Appellant's height and the distance from the ground to the bottom of the door, would have struck him in the left elbow region and not on his cheek and ear." [Regulator's Submissions, point 45]
- [60]The Regulator claimed that because of the inconsistencies in the Appellant's evidence and the improbability of the alleged event occurring as described by him, it would be difficult to accept his evidence.
- [61]It is not questioned that Counsel for the Regulator was entitled to ask the Appellant the questions that it did regarding the positioning of the Appellant inside the cabin, but in my view, the intricacy of the questions put to the Appellant as it went to heights, distances and which way the Appellant was standing inside of the cabin (and consequently that his right and left side would differ depending upon where he was positioned undertaking his clockwise turn), created a level of confusion and contention around both questions and answers.
- [62]For example, in my consideration of whether or not the incident as described by the Appellant actually occurred, Counsel for the Regulator advised the Appellant that his Counsel had explained that when the door opened from right to left on the left side of the cabin, then the "hinges to the door are behind your … next to your right shoulder". This scenario highlights possible confusion in accurately describing the movements inside a cabin where the only door is on the left hand side and where that door opens from right to left.
MEDICAL EVIDENCE
Dr Quigley, Vascular Surgeon
- [63]Dr Quigley saw the Appellant on 17 June 2016. His Report states that the information he was given by the Appellant was as follows:
"Late one morning he got out of the excavator, reached back inside the cabin for his lunch box and was then hit on the left side of his face and head by a very heavy door of the excavator which was blown shut by the wind, not having been properly secured in place on opening. This resulted in losing consciousness for a short period and losing several teeth. He was not taken to hospital at the time but instead flew back to Townsville that night and says he saw his local medical officer the next day because of a bad headache." [Exhibit 12]
- [64]Dr Quigley says that the Appellant reported seeing his General Practitioner several times over the following months, and Dr Quigley was aware of one medical report on 24 June 2013, from his General Practitioner saying he was prescribed Panadol Osteo for his ongoing headaches.
- [65]The Appellant reported to Dr Quigley that on 11 September 2013, when helping a friend with some manual work he found he was unable to focus and felt that he was about to "black out". His speech was slurred and he had decreased sensation and movement in his right side, particularly his arm. He was admitted to the Townsville Hospital because of the high risk of a stroke, but recovered and self-discharged himself from hospital. Two weeks later he presented with ataxia, some paresthesia and dysphasia as well as having a severe headache. After medical examination it was found that the Appellant showed an occlusion of the left vertebral artery and changes on the CT and MRI of bilateral cerebellar infarcts:
"There was also evidence of infarcts in the distribution of the right internal carotid artery, occlusion of the left vertebral artery with severe disease in the intradural portion of that artery and critical stenosis in the right internal carotid artery and less severe stenosis on the left side." [Exhibit 12]
- [66]Dr Quigley said that the Appellant's symptoms at that time:
"… were all consistent with a diagnosis of lateral medullary syndrome most likely related to the occlusion of the vertebral artery. It was noted both by Dr Costello, consulting neurologist, and on reports of the MRI that the occlusion in the vertebral artery may have been due to dissection." [Exhibit 12]
- [67]He noted that the Appellant had been vague on identifying the period of time he had suffered from diabetes or hypertension and his smoking habits.
- [68]Further, in Dr Quigley's report he stated:
"In the end, as to the relevance of his trauma in *March [sic.] to the presentation with a stroke in September, the real issue comes down to as to whether or not he had suffered a significant trauma to the left vertebral artery at that time. It would seem from the reports that it is quite likely given the severity of the trauma, the location of the trauma and his subsequent symptoms of severe headaches and occasional visual symptoms and then subsequent presentation in September, that he did suffer a significant injury to his vertebral artery at the time of the original trauma in April." [*March altered to April as a correction in the Hearing]
- [69]Dr Quigley said that it was unlikely that some of the symptoms suffered by the Appellant (i.e. lesions in the carotid artery particularly on the right side and significant disease in his aorta and iliac arteries), were as a result of the trauma. He believed that those problems were related to his risk factors of diabetes, hypertension, smoking and his strong family history of vascular disease.
- [70]Dr Quigley identified the main factors in favour of trauma being associated with his stroke as follows:
- that the trauma was on the left side of the neck;
- that he had symptoms from that time up until the presentation with a stroke; and
- that the cause of the stroke was due to occlusion of the left vertebral artery and the appearances of the occlusion were consistent with dissection secondary to trauma.
- [71]The possibility of other factors contributing to a stroke were identified as follows:
- evidence of chronic disease in the vertebral artery in the intradural portion of that artery which was mainly calcification; and
- his evidence of severe disease elsewhere in his extracranial carotid arteries and also infrarenal aorta and iliac arteries.
- [72]In Examination In-Chief, Dr Quigley said he had primarily relied upon the documents mentioned hereunder for his Report:
- Medical Records from Townsville Hospital dated 26 September 2013; and [Exhibit 13, the first six pages]
- Medical Records from the Wulguru Health and Wellbeing Centre [Exhibit 9]
- [73]Dr Quigley was asked to explain some comments within his Report. He advised that "dissection" as used in his Report related to:
"… essentially a split in the lining of the artery, and it can lead to occlusion or a blockage in the artery, and it can occur spontaneously, namely in aspects of high blood pressure. And it also more often occurs with trauma."
- [74]He advised that with trauma, symptoms would more likely occur closer to the time of the trauma but could occur at any time later.
- [75]When commenting upon some of the symptoms experienced by the Appellant (e.g. headaches), Dr Quigley described them as non-specific symptoms and it would be difficult to say that they related to a dissection, but they were consistent with a trauma. The fact that the Appellant said he had not experienced headaches before his injury did not particularly assist Dr Quigley in forming his view, but the fact that the Appellant had symptoms after the injury would make it "reasonable" for consideration within the context of this commentary.
- [76]Dr Quigley agreed that a blow of the type described by the Appellant could cause damage to his left vertebral artery. However, in relation to damage to the Appellant's carotid artery, he said that the findings from the ultrasound and the location and severity of the disease did not suggest it was caused by a dissection or trauma to either of those arteries.
- [77]Dr Quigley described the type of trauma as claimed by the Appellant as Horner's Syndrome. Horner's Syndrome is usually associated with irritation of the sympathetic nerve which is adjacent to the vertebral artery. Dr Quigley said that:
"It's really the severity of the trauma, and the time - the symptoms and the presence of Horner all make - Horner Syndrome, all make it reasonably likely that the trauma has - is the cause. But even on the other hand he has severe damage there. [T1-104, L6-9]
- [78]In Cross-Examination the following questions were put to Dr Quigley by Counsel for the Regulator:
"Mr Merrell: If you assume that the trauma did occur as he said it occurred, but given the chronic disease in his vertebral artery, in the intradural portion of that artery, am I correct in suggesting this: You can't say which one of those issues was the more probable cause of his stroke?
Dr Quigley: Well, I think - the calcification doesn't attribute to the block there.
Mr Merrell: All right?
Dr Quigley: The only block we know of was more proximate where the dissection - where the occlusion was from the waves in [indistinct].
Mr Merrell: Yes?
Dr Quigley: And I think you can be pretty sure that the occlusion portion of the vertebral artery has caused his problem.
Mr Merrell: Right?
Dr Quigley: And the calcification is certainly an indicator that he's got disease if you've got atherosclerosis.
Mr Merrell: Yes? But it's the case, isn't it, that it's - leaving aside the calcification point, it's fifty- fifty, isn't it, as to what the cause was of his stroke, as between the chronic disease in his vertebral artery, and the trauma that he described?
Dr Quigley: Okay. Yes I believe that. There's no certain one.
Mr Merrell: No. As so you can't say on that basis one of those - which one of those matters was the more probable cause of his stroke?
Dr Quigley: I think I definitely couldn't way whether he had an artherosclerotic cause, or an occlusion of the vertebral artery, or due to trauma.
Mr Merrell: Yes?
Dr Quigley: But I wouldn't blame that calcification in the intradural portion for the stroke.
Mr Merrell: No?
Dr Quigley: That's just an indicator it would be.
Mr Merrell: And just a final point. Where Dr Costello said that the occlusion of the vertebral artery may have been due to dissection …. You can't be - that's not being definite that there was a dissection that caused blockage?
Dr Quigley: No. As I said, we [indistinct] that problem. We - very - once the artery is completely blocked, it's very difficult to tell which one it is.
Mr Merrell: Yes? So you - it's very difficult to say that the blockage in the vertebral artery was caused by a dissection?
Dr Quigley: That's right [indistinct]
Mr Merrell: yes?
Mr Merrell: No. And is that another reason why you can't say why you say that it's fifty-fifty, as to what the cause of his stroke was, as between the trauma and the chronic disease in his vertebral artery?
Dr Quigley: That's right. As I said, on the one hand he's got the history of trauma, in the locations and timing [indistinct] but he's also got evidence of widespread artherosclerosis, in effect.
Mr Merrell: Yes?
Dr Quigley: So he's got a few other causes
Mr Merrell: Yes?
Dr Quigley: So, yes.
Mr Merrell: So just to be clear on this point, you can't say which one of those issues is the more probable - is more probable than not of the cause of his stroke?
No, I really - no." [T1-106, L16 to T1-107, L26]
- [79]In Re-Examination, Dr Quigley said that:
"Mr Greggery: Now, Dr Quigley, you were just asked a question about not being able to say that the blockage was due to dissection. And you said you couldn't be a hundred per cent. What can you say about the cause of the occlusion in relationship to a dissection, as opposed to natural disease?
Dr Quigley: Is that the same question as to what do you think probably [indistinct] dissection, rather than - trauma rather than atherosclerotic disease?
Mr Greggery: I think - as I understand your evidence, there are two steps. One is whether the occlusion was due to dissection?
Dr Quigley: Yes.
Mr Greggery: And you say you can't be a hundred per cent on that?
Dr Quigley: No.
Mr Greggery: What can you say about that, I guess?
Dr Quigley: The thing we can say is that the occlusions in the vertebral artery was the cause of the stroke.
Mr Greggery: Yes?
Dr Quigley: Very clear on - fairly certain on that.
Mr Greggery: And?
Dr Quigley: And the difficulty is saying that it's trauma that caused the occlusion, or atherosclerosis. And I think it's equal - there are equal reasons for putting forward either as the cause. I don't think there's any way you can say it's not a trauma. I don't think there's any we can say for certain it's atherosclerosis. It's impossible
Mr Greggery: You can't say that there's any way it was not the trauma?
Dr Quigley: No
…
Mr Greggery: What do you mean, then, by the reference to - in the second paragraph, about part way through, the phrase 'quite likely'?
Dr Quigley: Well that's right. The severity of the trauma which was quite severe … and his subsequent symptoms over the next six months … and the position of the stroke, all fit with a diagnosis of traumatic injury to the artery. As I said, the - it's still impossible to exclude a cause of a [indistinct] disease, given the fact that we do know he has fairly significant [indistinct] disease, or atherosclerosis [indistinct] in the carotid artery, in the aorta, so [indistinct] his history.
Mr Greggery: If we put medical certainty to one side and talk about probabilities.. or more likely, are you able to express an opinion about it?
Dr Quigley: Well probably not more than fifty-fifty, as I said. Medically we don't usually worry about the probability. So I don't - as I said, I don't think I would go much more than fifty-fifty either way." [T1-107, L38 to T1-108, L37]
- [80]Questioned by Counsel for the Appellant as to his earlier reference to Horner's Syndrome Dr Quigley responded:
"Yes. That relates to some symptoms - [indistinct] slight droopiness of the eyelid and the pupil on that side is slightly dilated. That is what is [indistinct]. Due to irritation of the pigment, the nerve - sympathetic nerve. It defines part of the muscle in the eye, but it's mainly to do with define [sic. defining] the nerves that run across it and it also defines one of the capillary muscles. But it lies alongside the vertebral and carotid artery, and if you get dissection in either of those arteries it tends to be damaging. [T1-108, L39-46]
- [81]When questioned whether that could be an indicator of damage, Dr Quigley responded:
"Of dissection, yes. Typical - we've always essentially regarded the association of occlusion of either the carotid or the vertebral artery in association with the Horner Syndrome, as an indication of dissection, or trauma." [T1-109, L1-4]
Dental Examinations at Townsville Hospital Dental Clinic
- [82]While it has been claimed that the Appellant had not raised the event of 8 April 2013 with medical practitioners until some time after the event, the records from the Townsville Health Service Dental Clinic show that as of 14 October 2013, it had recorded:
"[Patient] is booked in for dentures. Teeth knocked out at work. Hit by door in mouth."
- [83]The Appellant notes that this visit to the dentist occurred prior to the lodging of the Workers' Compensation Claim.
- [84]Also on 19 May 2014, the Appellant presented at the Townsville Hospital Dental Clinic. Notes taken at that time refer inter alia to the Appellant advising that he:
"… was hit in face at work 6 months ago (not covered by insurance), had severe trauma to neck and arteries and this was followed by a stroke". [Exhibit 15]
Dr Kamasani - Dentist
- [85]Dr Kamasani, is a dentist who works at the Townsville Dental Centre an Idalia, a suburb in Townsville. He first saw the Appellant on 12 February 2015.
- [86]The Appellant had been referred by Oral Health. He explained that Oral Health was part of a Queensland Government Department which outsourced its public patients to private practices.
- [87]On 12 February 2015, Dr Kamasani checked the Appellant's teeth and ordered X-rays to be undertaken. The Appellant saw Dr Kamasani on four occasions. One tooth was extracted from the lower left side of his teeth. Dr Kamasani noted six front teeth missing from the row of teeth at the top.
- [88]Dr Kamasani was able to detect some gum disease.
[*Unfortunately, the Transcript has missed a number of words used by this witness on most pages of evidence. In some cases it does not alter the intent of the actual words used, but in others it is deficient.]
- [89]When asked by Counsel for the Appellant:
"Mr Greggery: Can someone have trauma to their mouth even though they've got gum disease?"
"Dr Kamasani: Yeah, the gum disease can happen [indistinct]. It could be a combination of [indistinct] he had a gum disease and the problem might take the teeth of the bridge [indistinct] or if there was no gum disease [indistinct] bridge to follow." [T1-94, L10-13]
- [90]On the visit to the Clinic on 26 March 2016, Dr Kamasani had been advised by the Appellant's Solicitors that the Appellant had sustained a violent blow to the left side of his head, face and neck on 8 April 2013, causing damage to his teeth.
- [91]In my view, it is unsurprising that the Appellant did not again mention the event of 8 April 2013 to Dr Kamasani, as he had previously done so with the Townsville Hospital Dentist on 14 October 2013.
- [92]Similarly, the Appellant had not mentioned his injury to his teeth to Dr Quigley. I draw no adverse inference against the Appellant for that, save to say, it is understandable as those issues were being considered by the dentist.
- [93]Dr Kamasani was unable to tell from the X-rays taken when the Appellant's teeth had been damaged [T1-96]. At that time, Dr Kamasani identified three teeth still attached to the bridge.
- [94]Dr Kamasani was unable to tell from looking at the bridge whether it was caused from a trauma or a disease. Dr Kamasani added:
"… a person's general health and his oral hygiene are measured. And they're - if he's got a poor oral hygiene that can be the gum disease. Sometimes it can be hereditary too." [T1-97, L43-46]
Dr Kamasani was unable to tell whether the damage to the Appellant's teeth was caused by trauma or gum disease and suggested that "… and of course [indistinct] a combination of these two might have played a role". [T1-97]
- [95]When asked by Counsel for the Regulator whether diabetes could contribute to gum disease, Dr Kamasani said:
"Yes. Diabetes also can play a role to the gum disease." [T1-98, L2-3]
CONSIDERATION OF EVIDENCE AND CONCLUSION
- [96]The Regulator's submissions are essentially:
- That the event of 8 April 2013, as described by the Appellant, did not in fact occur.
- In the alternative, if the Commission were to accept that the event described by the Appellant did occur on that date, then:
"The Commission cannot be satisfied, on the balance of probabilities, that even if the Commission accepts that the door to the excavator hit the Appellant and hit him on this left ear and cheek, it did not hit his neck, the Commission cannot be persuaded, on the balance of probabilities, that any such blockage of the Appellant's vertebral artery was caused by a trauma to the left side of the Appellant's neck." [Regulator's Submissions, point 103]
Did the Incident, as described by the Appellant on 8 April 2013, Occur?
- [97]I have accepted the Appellant's evidence that the incident he described as occurring on 8 April 2013, did in fact occur.
- [98]I found the Appellant to be a forthright and credible witness. He was an unsophisticated, plain speaking witness whose account of events was not always fluently expressed. However, he was able to appropriately present his claim in a manner that was sufficiently clear as to be understood. He also presented as a witness who would not necessarily add any further information on a subject unless specifically asked. For example, when he visited Dr Kamasani (Dentist), he described the visit as a fairly perfunctory process and he didn't supply further information to the Dentist originally because the Dentist hadn't asked him for it and in any event, that information had previously been given to a dentist from the Townsville Hospital on 14 October 2013. I have not found that particular situation derogates from his primary claim.
- [99]The Regulator is critical of the Appellant's apparent lack of providing information concerning the incident, to persons with whom, one might presume, he would share this information. Having observed the Appellant giving evidence I have formed the view that while this might seem, on its face, to be damaging to his claim, in the circumstances of this case, I have not accepted that perspective for reasons previously given.
- [100]That the Appellant's Evidence In-Chief was expanded upon in Cross-Examination was unsurprising given at times the nature and complexity of the questions posed by Counsel for the Regulator.
- [101]The Regulator placed emphasis on the Appellant's failure to properly record the date of his return to the worksite and his failure to specifically mention his neck when referring to his injuries at the worksite on 8 April 2013.
- [102]That the Appellant did not record his correct date of returning to the worksite is not detrimental to his case. His arrival and departure from the worksite were matters of fact supported by airline documentation. His confusing one date with another is of little moment. There was no evidence from the Regulator to suggest that the Appellant had not been at work on the corrected dates.
- [103]Amongst a number of the Regulator's challenges to the authenticity of the Appellant's claims that he suffered a work injury on 8 April 2013, was that he had not reported the incident to his employer, notwithstanding that he had completed a Skilled form regarding the process to be undertaken if an injury occurred at the workplace.
- [104]It is unchallenged that the Appellant worked the hours nominated (12 hours per day) from 24 March 2013 to 8 April 2013, inclusive. It is also unchallenged that there had been no face-to-face contact with Skilled during that period of time when the Appellant was working on the site.
- [105]It is also accepted that the Appellant's work camp was some 45 minutes' drive from the worksite and that on the day of the incident, I accept that the Appellant was under no obligation to request that the workmate who drove him to the airport was required to report the incident to Skilled.
- [106]The Appellant did not report the incident to Skilled, but given his isolation from others and the lack of presence of Skilled personnel at the worksite, and given the nature of what had occurred to him at the worksite, I have accepted his evidence that he simply wanted to get home as soon as possible. I accept that he felt considerable pain from the incident at that time and that his reasons for not formalising/notifying his account of the event with his employer was understandable in the circumstances. That view is bolstered by my acceptance of the Appellant's claim that he really had not understood exactly what had happened to him when he was struck by the excavator door.
- [107]It is clear that the Appellant had not, at the time of the incident, make a specific reference to his neck. At that time he referenced the side of his head as being affected (and his teeth). However, it is not the case that the Appellant never referred to injury to his neck at a later stage. This is evidenced in paragraph [90] of this decision where the Appellant discussed with his Dentist the injuries he had sustained to the left side of his head, face and neck on 8 April 2013 and resultant damage to his teeth.
- [108]This reference to his neck was made prior to the making of his Application for Workers' Compensation. I have accepted that the time taken in referring to his neck pain was understandable in the circumstances. Those circumstances include various medical investigations undertaken over a period of time. I have not viewed the Appellant's mention of his neck being included in his overall injury at a later point in time as a concocted addition to his injury for the reasons given in this decision concerning his over-all credibility.
- [109]The evidence of Dr Quigley provides as follows:
"Mr Greggery: And in your next paragraph the issue about whether the trauma to his head in April - or sorry, you've described it as March, but if you assume it's April, to the presentation of the stroke in September, really comes down to whether or not he suffered a significant trauma to the left vertebral artery at that time?
Dr Quigley: Yes.
Mr Greggery: And where is the left vertebral artery located?
Dr Quigley: On the left side of the neck, from a short distance above the clavicle it actually enters in a channel in the vertebral body themselves, and passes up to the back of the brain that way.
Mr Greggery: Right?
Dr Quigley: By the base of the neck actually just in front of the vertebral body.
Mr Greggery: All right?
Dr Quigley: But it's not - there's not a lot of room in the neck. So the distance between that and the carotid artery, which we can [indistinct] at the front of the neck, and the vertebral artery, that point - probably only a centimetre.
Mr Greggery: Okay. And is the blow of the force that he described, to the side of - the left side of his head, consistent with a blow that could cause damage to the left vertebral artery?
Dr Quigley: Yes." [T1-102, L45 to T1-103, L15]
The Event of 8 April 2013
- [110]The Appellant held the relevant operator ticket/licence to drive excavators and he had done so for many years. His expertise and knowledge of excavators has been duly noted and accepted by the Commission.
- [111]The time nominated by the Appellant as to when he took his smoko on that day has been queried by the Regulator.
- [112]The Appellant said he did not wear a watch and the fact that he may have taken his smoko at 10.00am or later at 12.00pm does not alter his evidence given on that day. When considering that the Appellant was working a 12 hour day in a completely isolated environment over a period of 18 straight days, a difference of two hours is not damaging to his claim.
- [113]The Regulator, in forming its view that the Appellant's claimed event on that day did not occur, placed considerable emphasis on where the Appellant said his esky was placed in the excavator and if it was at all possible that the Appellant could have been hit by a door given his placement at the scene.
- [114]I have accepted the Appellant's evidence that after leaving his esky in his excavator cabin, he sought to retrieve it.
- [115]While the Regulator claims that the event did not occur, the Appellant says that the Regulator has pursued "an attempted reconstruction" of the event by reference to the Appellant's height compared to the height of the excavator door from the ground. The Regulator sought to establish that the Appellant could not have been struck on the side of the head as he described. Counsel for the Appellant submitted that the shortcomings with the attempted reconstruction are the unknown variables identified by the Appellant in his evidence. Those variables are the estimated height of the door upon the Appellant's body (assuming flat ground), the downward slope of the ground and the distance of the Appellant from the tracks of the excavator.
- [116]The Appellant explained that the measurements provided by the Regulator did not take into account the fact that the excavator was placed upon a "turkey's nest". The Appellant explained to the Regulator that if its measurements and assertions were accurate then he agreed in evidence there would be "no way the door hit me". But he claimed that those measurements were not correct and did not take into account the actual situation of the placement of the excavator at the time of the event.
- [117]The Appellant stated that when he had previously claimed to have been standing on flat ground, he said:
"Flat ground, I agree, but not on - the way it was on a turkey's nest. There was quite an incline like that. And then when I stepped out - stepped out on the track and stepped on the actual ground, the actual ground wasn't flat; it went from there virtually straight down to a 45." [T1-56]
- [118]To the Regulator's continued assertion that the event could not have occurred, the Appellant stated, when discussing actual events of that day viz., the excavator:
"It is the way it was located though. The way it was sitting on a mound, I was sitting on a mound with the track like that but the actual dirt pile was just enough for the tracks to sit on. The tracks were just sitting on there, and I had from there - probably three metres of dirt like, so I was down on quite a - quite a steep slope." [T1-56]
- [119]He also added:
"But the way I was located, I was on a turkey's nest which is a very steep decline like that which to climb up, you're actually got to use your hands to go up to get in the - to even get up on the track. I've got to grab the track to get up to get in." [T1-57]
- [120]I accept that analysis because it more appropriately reflects the evidence and also for the following reasons:
- In my view, the reality of this situation is that the Appellant is an accredited excavator operator and who has worked with excavators for many years and who was given the responsibility from his employer of working alone on an excavator in a remote location for 12 hours per day for 18 days straight. He has given his account of how the excavator was positioned on that day and how he had been hit by a swinging door on the excavator. The questions of the probability of this occurring posed by Counsel for the Regulator are based upon a diagram in Exhibit [2], which the Appellant claims may well been meaningful under specific circumstances, but not under the circumstances in which he found himself on 8 April 2013.
- In my view, the Appellant's evidence of the work conditions on the day (8 April 2013); the placement of the excavator; the peculiarities of the area under consideration and the lengthy experience of the Appellant with excavators out-weighs consideration of possibilities drawn from a picture of the same excavator in a catalogue. I accepted the Appellant's honesty when he conceded that under some circumstances some of the questions posed by the Regulator may be accurately put, but in the circumstances in which he found himself on 8 April 2013, those circumstances did not exist.
- I accept that the Appellant was struck by the door and I also accept that it could not be within the Regulator's knowledge what his distance from the tracks was at the time. The Appellant had extensive experience in the area in which he worked. This included knowledge of the full operation of the excavator, and the terrain and conditions under which he worked during the period under consideration. Part of that knowledge was that when the door had swung towards him it was accelerated by a forceful wind.
- I have been unable to accept that the Appellant fabricated or concocted a story like this for the purpose of claiming Workers' Compensation.
- Ms White's evidence that:
"Well, it got to the point where he'd wake up in the middle of the night, just crying his eyes out and he goes 'my head is so sore'. And then I says to him, you know - like - and he'd be crying. You know, for a full grown man - a grown man to be crying like the way he was crying, there had to be something more than just the - a headache". [T1-70, L9-13]
Ms White's evidence, which has been accepted, is a factor for consideration in terms of the Appellant's claim.
- I have also accepted that the incident as described by the Appellant did occur at the Townsville Airport on the evening of 8 April 2013. Ms White's evidence, which is accepted, is that she had been told of this event by the Appellant at the time of picking him up from the airport in Townsville 8 April 2013.
The Nature of the Injury incurred by the Appellant
- [121]Having accepted that the Appellant had been injured by being struck by the door of the excavator upon which he was working, the actual injury requires consideration in conjunction with the medical evidence.
- [122]The Appellant's description of his injury was that the blow from the excavator door "hit on the side of here … side of the face" [T1-21]. The Appellant moved his hand to the area and it was read into the transcript as "left side of your face over your cheek and ear". When commenting upon whether he had an injury to his nose, he explained, within that context, "No. Nothing done in the face". [T1-21]
- [123]The Regulator claims that if there has been no injury to the Appellant's neck then his claim that trauma was the cause of his injury would not be sustained.
- [124]In response to the following question from Counsel for the Appellant:
"And is the blow of the force he described, to the side of - the left side of his head, consistent with a blow that could cause damage to the left vertebral artery?"
Dr Quigley responded:
"Yes". [T1-103]
- [125]Dr Quigley further stated that:
"I think that the significant trauma and he had, as described in a note, he had what's called Horner Syndrome with irritation of the sympathetic nerve which is adjacent to the vertebral artery. It being more likely to occur with, say, dissection than with artherosclerosis. It's really the severity of the trauma, and the time - the symptoms and the presence of Horner all make. Horner Syndrome, all make it reasonably likely that the trauma has - is the cause - But even on the other hand he has severe damage there." [T1-104, L2-9]
- [126]The Regulator questioned Dr Quigley about an alternative proposition and was asked to assume that the trauma had not occurred. In that scenario, Dr Quigley was asked whether the stroke could have been caused by his chronic disease of his vertebral artery. Dr Quigley said that the calcification would indicate that the Appellant had disease in the artery, but he said that was not where the occlusion was situated. [T1-105]
- [127]Dr Quigley was then asked by the Regulator to assume that the trauma had occurred to the Appellant but that he also had the chronic disease in his vertebral artery. Dr Quigley was asked if the latter health issue could be the cause of the stroke. Dr Quigley said that he did not think that the calcification attributed to the blockage.
- [128]Upon further questioning, Dr Quigley said that once an artery was blocked it is difficult to ascertain the cause.
- [129]In re-examination, Dr Quigley stated that, "the thing we can say is that the occlusion in the vertebral artery was the cause of the stroke". [T1-108] He went on to add:
"There are equal reasons for putting forward either as the cause." [T1-108, L9-10 [i.e. trauma or artherosclerosis]
He added:
"I don't think there's any way you can say it's not a trauma. I don't think there's any way we can say for certain it's atherosclerosis." [T1-108, L10-11]
- [130]Dr Quigley was questioned by Counsel for the Appellant as to the use of his words "quite likely" in his Report and he responded "Well, that's right. The severity of the trauma which was quite severe … and his subsequent symptoms over the next six months … and the position of the stroke, all fit with a diagnosis of traumatic injury to the artery… the history of the trauma does fit with the stroke, but one can't be certain". [T1-108, L21-30]
- [131]He also added:
"… we've always essentially regarded the association of occlusion of either the carotid or the vertebral artery in association with the Horner Syndrome, as an indication of dissection or trauma." [T1-109,L1-4]
- [132]The Appellant, in its submissions states that Dr Quigley confirmed that:
- The chronic disease, mainly severe calcification was in the intradural (inside the skull) portion of the artery. [T1-105]
- The intradural section of the artery was not the location of the blockage or occlusion. [T1-105]
- The only block in the artery was proximate to the dissection. [T1-106]
- Dr Quigley agreed that the blow to the left side of the Appellant's head was consistent with a blow that could cause damage to the left vertebral artery. [T1-102, L45 to T1-103, L15]
- [133]The Appellant believed that Dr Quigley's opinion was compelling in favour of the finding that the trauma probably caused the stroke.
- [134]In its submissions, the Regulator stated that Dr Quigley's evidence is only relevant if the Commission finds the event at the construction site occurred.
- [135]Given the finding that I have made concerning the incident on 8 April 2013, Dr Quigley's evidence is relevant.
- [136]Primarily, the Regulator stated that Dr Quigley's evidence did not support the Appellant's contention that on the balance of probabilities the event the Appellant describes on 8 April 2013 had a causal connection with his stroke in September 2013.
- [137]The Regulator claimed that while there was a possibility in Dr Quigley's opinion that the Appellant's stroke was caused by the alleged trauma, that was not sufficient to satisfy the balance of probabilities test that the stroke was caused by the trauma.
- [138]A further issue raised by the Regulator was Dr Quigley's reference to the Appellant's trauma being on the left side of the neck. This was contrary, in the Respondent's view, to the evidence that when the door that hit him, it had hit him on his left cheek and ear and not on his neck.
- [139]I have accepted that in the reporting of his injury of 8 April 2013, the Appellant had not specifically referred to his neck. However, I have also accepted that he was confused as to the exact nature of his injury and that he would not have been able to ascertain the specific areas in immediate proximity to his face with any degree of accuracy. The area affected became more defined once the Appellant had visited various medical practitioners. I have not viewed the omission of the word "neck" in his initial reporting of his injury as detrimental to the Appellant's claim. As well, the Appellant had made reference to his neck before lodging his Workers' Compensation Claim.
- [140]Upon the question of the "balance of probability", the Regulator has cited the matter of MacArthur v WorkCover Queensland[1], where Hall P stated:
"The common law test of balance of probabilities is not satisfied by evidence which fails to do more than establish possibility. See St George Club v Hines (1961-62) 35 ALR 106 at 107 where the Court referred to Bonnington Castings Ltd v Wardlow [1956] AC 613 as authority for the following proposition:-
'In an action of law a plaintiff does not prove his case merely by showing that it was possible that his injury was caused by the defendant's default'.
…
The process of determining a matter on the balance of probabilities is neither a sterile exercise in mathematics nor a mechanical application of probabilities. 'The predominant position in Australian case law is that a balance of probabilities test requires a Court to reach a level of actual persuasion.' Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262 at para 136 per Spigelman CJ and the authorities monographs and articles there cited."
- [141]On the question of the balance of probabilities, in Girlock Sales Pty Ltd v Hurrell[2], Stephen J, set out a passage from an earlier unreported decision of the High Court as follows:
"You need only circumstances raising a more probable inference in favour of what is alleged … where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degrees of probability is that the choice between them is mere matter of conjecture … All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probably is meant no more than upon a balance of probabilities such an inference might reasonable be considered to have some greater degree of likelihood."
- [142]I am persuaded by the evidence that the Appellant has discharged his onus, on the balance of probabilities, that the injury incurred by him of 8 April 2013 occurred in the course of his employment and that his employment was a significant factor to the injury.
- [143]While Dr Quigley's evidence appeared during Cross-Examination to be equivocal on occasions, he stated in Cross-Examination that he was required to consider the proposition of assuming that the trauma had not occurred to the Appellant as described, and on the other hand that if the trauma as described had occurred, what would his opinion be.
- [144]Finally, in Examination In-Chief, his evidence, in my view, Dr Quigley clarified his opinion:
"The severity of the trauma which was quite severe and his subsequent symptoms over the next six months and the position of the stroke, all fit with a diagnosis of traumatic injury to the artery… the history of the trauma does fit with the stroke, but one can't be certain."
- [145]'More probable', means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty (see Tabet v Gett[3]).
- [146]
"The question whether an applicant for compensation has suffered an 'injury' within the meaning of the Workers' Compensation Act 1990 is a question of mixed fact and law on which medical evidence is often helpful, but necessarily not decisive."
- [147]
"As Dixon CJ and others explained in Ramsay v Watson, a medical expert may express an opinion as to the nature of the cause, or probable cause, of an ailment but it is for the jury to weigh and determine the probabilities and, in undertaking that exercise, the Court is not to transfer the task to experts, but rather, to task itself. 'Are we on the whole of the evidence satisfied on the balance of probabilities of the fact?' The fact of the injury occurred as described by the Appellant, in conjunction with the medical evidence is sufficient for the inference to be drawn."
- [148]In my view, on the "whole of the evidence" (see Cowen v Bunnings Group Ltd[6]) and according to "the course of common experience" (see Girlocok Sales Pty Ltd v Hurrell[7]) the more probable inference to be drawn upon the balance of probabilities is that the Appellant's injury satisfies the requirements of "injury" pursuant to s 32 of the Act and that the injury occurred in the course of his employment and that the employment was a significant contributing factor to the injury.
- [149]Counsel for the Appellant states that it is important to bear in mind that the balance of probabilities permits a degree of uncertainty. It cites Keifel J, with whom Hayne, Crennan and Bell JJ agreed, observed in Tabet v Gett[8]:
"The common law requires proof, by the person seeking compensation, that the negligent act or omission caused the loss or injury constituting the damage. All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant's negligence caused the injury or harm.
'More probable' means no more than that, upon a balance of probabilities, such an inference might reasonable be considered to have some greater degree of likelihood; it does not require certainty.
…
Once causation is proved to be the general standard, the common law treats what is shown to have occurred as certain. The purpose of proof of law, unlike science or philosophy, is to apportion legal responsibility. That requires the courts, by a judgement, to 'reduce to legal certainty questions to which no other conclusive answer can be given'. The result of this approach is that when loss or damage is proved to have been caused by a defendant's act or omission, a plaintiff recovers the entire loss (the 'all or nothing' rule)."
- [150]In considering the "whole of the evidence"; the factual finding made that the event of 8 April 2013 occurred, together with the evidence of Dr Quigley, supports the finding that the Appellant incurred an "injury" for the purposes of the Act.
- [151]The Appeal is granted. The requirements for an "injury" pursuant to s 32 of the Act have been met. The Commission sets aside the Review Decision of the Workers' Compensation Regulator, dated 11 May 2016.
- [152]The Regulator is to pay the Appellant's costs of, and incidental to the Appeal.
Footnotes
[1] MacArthur v WorkCover Queensland (2001) 167 QGIG 100 at 101
[2] Girlock Sales Pty Ltd v Hurrell (1982) 149 CLR 155 at 161 to 162
[3] Tabet v Gett [2010] 240 CLR 537
[4] Groos v WorkCover Queensland 165 QGIG 106
[5] Cowen v Bunnings Group Ltd [2014] QSC 301
[6] Cowen v Bunnings Group Ltd [2014] QSC 301
[7] Girlocok Sales Pty Ltd v Hurrell (1982) 149 CLR 155
[8] Tabet v Gett [2010] 240 CLR 537 at [111] to [113]