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Goonawardena v Workers' Compensation Regulator[2018] QIRC 148

Goonawardena v Workers' Compensation Regulator[2018] QIRC 148

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Goonawardena v Workers' Compensation Regulator [2018] QIRC 148

PARTIES:

Goonawardena, Nirupa Sandra Bernadette

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2017/112

PROCEEDING:

Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:

5 December 2018

HEARING DATES: 

23 May 2018; and

24 May 2018

MEMBER:

Swan DP

HEARD AT:

Brisbane

ORDERS:

  1. The Appeal is dismissed; and
  1. The Appellant is to pay the Regulator's costs of and incidental to the Appeal.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – PHYSICAL INJURY – Appellant alleges injury to her shoulder which arose out of her employment and that her employment was a significant contributing factor to the injury – Appellant worked in a business which propagated, packaged and trialled a range of seeds from vegetables and fruits etc in a Brisbane nursery – Appellant lifted boxes of excess soil for dispersal into a skip – Appellant claimed to have injured her shoulder on 10 October 2016 – Injury described as "rotator cuff tear" – In final submissions, Appellant also submitted that "at the very least, the Appellant's rotator cuff tear was an aggravation of an underlying condition" for which "the aggravation arose out of or in the course of her employment" – Medical evidence not reliably clear as to causation as no prior medical history of the Appellant was known – Issues of workplace health and safety considered – Appeal dismissed.

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003, s 32

CASES:

Yousif v Workers Compensation Regulator [2017] ICQ 004

Carman v Q-COMP (2007) 186 QGIG 512

Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48

Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181

APPEARANCES:

Mr J. Wilshire of Counsel, instructed by Mr P. Seymour of Seymour Furlong Lawyers, for the Appellant. 

Ms L. Wilson of Counsel, directly instructed by Ms C. Godfrey of the Workers' Compensation Regulator, the Respondent.

Reasons for Decision

  1. [1]
    This Appeal is made by Ms Nirupa Sandra Bernadette Goonawardena (the Appellant), against a decision of the Workers' Compensation Regulator (the Regulator) dated 23 May 2017, confirming the decision of WorkCover Queensland rejecting the Appellant's application for Workers' Compensation dated 25 January 2017.
  1. [2]
    This Appeal constitutes a hearing de novo and the Appellant bears the onus of proof.  
  1. [3]
    There was no challenge to the Appellant's status as a "worker" for the purposes of the Act.

Legislation

  1. [4]
    Section 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act), sets out the meaning of injury as follows:

Meaning of injury

  1. (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; or

   

  1. (2)
    However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.
  1. (3)
    Injury includes the following -
  1. (a)
    a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
  1. (b)
    an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation -
  1. (i)
    a personal injury other than a psychiatric or psychological disorder;
  1. (ii)
    a disease;
  1. (iii)
    a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation;

   

  1. (4)
    For subsection (3)(b) and (ba), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.

  1. [5]
    The Appellant submits that she incurred a shoulder injury which arose out of, or in the course of, her employment and that her employment was a significant contributing factor to that injury.
  1. [6]
    At the commencement of the hearing, the Appellant submitted the basis upon which the Appeal was made.  It was not claimed that the Appeal related to an over period of time claim. [1]
  1. [7]
    However, Counsel for the Appellant in final submissions states that as a secondary argument, the Appellant's case may be a matter of aggravation.  Specifically stated was that: 

At the very least, the appellant's rotator cuff tear was an aggravation of an underlying condition, and the aggravation arose out of or in the course of her employment. [2]

This issue will be addressed further hereunder at paragraph [88] of this Decision.

  Witnesses

  1. [8]
    Witnesses for the Appellant were:
  • Ms Nirupa Sandra Bernadette Goonawardena, the Appellant;
  • Ms Jessica Silvallana, co-worker at High Sun Express; 
  • Mr Henry Goeldner, co-worker at High Sun Express; 
  • Dr Sabitha Yakkala, General Practitioner; and
  • Dr Ashish Gupta, Orthopaedic Surgeon
  1. [9]
    Witness for the Regulator:
  • Mr Jeffrey Benson Bryde, High Sun Express employee Leading Hand;
  • Mr Hendrick (Dewilde) Lottering, High Sun Express employee and Workplace Health & Safety Officer as at December 2016; and 
  • Ms Barbara Gale Bell, High Sun Express employee;

  High Sun Express (the employer)

  1. [10]
    High Sun Express is a business located in Brisbane which provides seeds from vegetables, fruit, herbs and flower to various breeders.  The variety of seeds are propagated, packaged and trialled in its nursery in Brisbane.

  Type of work performed by the Appellant

  1. [11]
    The Appellant, aged 55 years at the time of the alleged injury, had been employed by High Sun Express since March 2015 to 24 October 2016 and worked in the consolidation area.  This work involved preparing one good tray of seedlings (consolidating) from a number of other trays that contained dead or no plant seedlings.  This was referred to as "fixing trays"[3].  The most common type of tray had 152 holes and where the seeds had not germinated, the soil from these holes had to be scooped out and tipped into a bucket or box.
  1. [12]
    The Appellant said that she usually used styrofoam boxes for the excess soil but green wheeled buckets were also used.
  1. [13]
    On most days the Appellant says that she tipped that excess soil from the box into the skip.  On some days when she was particularly busy she would perform this duty on more than one occasion.
  1. [14]
    Also on days when she had been asked to work in another area of the workplace, she would be required to empty the box before leaving the consolidation area and, when returning, would often empty the box at the end of her shift.
  1. [15]
    Over the course of a normal week she would tip the box into the skip between five to ten times.
  1. [16]
    From the photographs of the skip tendered into evidence[4] and from the direct evidence adduced, it showed that the skip had a door at one end.  That door would be open for one or two days after it had been emptied, closing again when it was filled with soil.   The skip was emptied approximately every two weeks.
  1. [17]
    On most occasions the door was closed and an employee emptying soil into the skip had to do so from the side of the skip.  The employee would be required, in these circumstances, to lift the box of soil over the side of the skip and to bang the box on the side of the skip to ensure that all the soil had been deposited.   As the Appellant was reasonably short in stature, it was claimed that during the course of that process on 10 October 2016, she felt a sudden sharp pain in her right shoulder.

  The Appellant's Submissions as to Causation of the Injury

  1. [18]
    As to the cause of her right shoulder condition, the Appellant had first noticed pain in her right shoulder and arm about a month or two before she travelled overseas between 29 August 2016 and 16 September 2016.
  1. [19]
    This pain did not continue while she was overseas, but did continue upon her return to work after about one week.[5]
  1. [20]
    The Appellant could continue her work with this pain and viewed the pain as muscular pain or something similar and in the evening she would rub "something" onto that area when at home.
  1. [21]
    On 10 October 2016, when the Appellant was lifting a box of soil to dump it into the skip she experienced a sharp pain in her shoulder which she described as different to the discomfort she had previously felt.
  1. [22]
    This incident occurred at the end of her shift on that day, but she continued to work for a period before being stood down due to a lack of work.  The Appellant sought treatment for her shoulder during the period of time she was off work.[6]

Medical Evidence

  1. [23]
    The Appellant has claimed that her injury occurred on 10 October 2016.

  Dr Yakkala 

  1. [24]
    Dr Yakkala (a General Practitioner in the practice where the Appellant attended and who gave evidence before the Commission), saw the Appellant on 20 November 2016.  The clinical notes record that the main reason for the Appellant's visit related to serious headaches and abdominal cramps.  The Appellant also mentioned to Dr Yakkala about her right shoulder and wrist pain.  The Appellant had told Dr Yakkala that the pain she had experienced had been ongoing for more than two to three months.[7]
  1. [25]
    Dr Yakkala agreed that if a patient had reported a specific lifting event where they suddenly felt a sharp pain in the shoulder, she would have generally noted that in her consultation notes[8].  However, this had not occurred. 
  1. [26]
    On 12 December 2016, the Appellant saw Dr Subasinghe, a General Practitioner, who recorded in a medical certificate a diagnosis of "a partial thickness tear of the right anterior supraspinatus".
  1. [27]
    On 13 December, the Appellant saw Dr Muthuthantri, a General Practitioner.  He issued a Workers' Compensation medical certificate dated 13 December 2016 which recorded a diagnosis of "right shoulder tear".

  Dr Gupta

  1. [28]
    Dr Gupta, an Orthopaedic Surgeon, saw the Appellant on 15 June 2017 and provided a Report on the same date.[9]
  1. [29]
    That Report noted that the Appellant had a rotator cuff tear and that it was first apparent in an ultrasound in November 2016.
  1. [30]
    The information provided to Dr Gupta as to the alleged incident on 10 October 2016, was the same as reported by the Appellant in her evidence before the Commission.
  1. [31]
    Based upon the information provided to him by the Appellant, Dr Gupta formed the view that the work activity performed, on the balance of probabilities, was the likely cause of the rotator cuff tear.[10]
  1. [32]
    In response to a question from Counsel for the Appellant, Dr Gupta said he had formed this view because: 

It's possible that the activity which Nirupa [the Appellant] was performing could have caused the tear but this would be on - on the [indistinct] that she had some underlying pathology in the rotator cuff and that the work and tipping the soil in the skip bin was the final straw which broke the camel's back.  So it's what we call an aggravation of a pre-existing problem and that - that she probably didn't have underlying tendinopathy but the repetitive work and lifting something heavy was what caused the tear or that is possible.[11] 

  1. [33]
    Dr Gupta said that the type of work being performed by the Appellant is:  

… the activity which can put stress on the rotator cuff and usually that is the kind of an activity which can predispose to tears if you've got the underlying problems in the rotator cuff.[12] 

  1. [34]
    Dr Gupta said that he had referred to the "underlying pathology" of the Appellant's condition within the context of her age, as he had no pre-existing MRI reports upon which to rely.
  1. [35]
    Dr Gupta was advised that the Appellant had indicated that she had experienced pain in her shoulder, arm and wrist prior to August 2016.  His view was that those symptoms more aligned with neck radiculopathy.  He stated that: 

Shoulder pain usually exists within the shoulder, and, at most radiates down your arm, not even your elbow.  So if a patient tells me they've got pain going all the way down arm into their wrist and their fingers, then that's probably cervical in origin and not shoulder related.[13] 

  1. [36]
    Were those symptoms evident in the months leading up to 10 October 2016, then Dr Gupta accepted that it could be indicative of some underlying pathology.
  1. [37]
    Dr Gupta also referred to the following:
  • He viewed the weight of the box which had to be tipped by the Appellant into the bin as being "not completely but somewhat relevant".  However, he added: 

 … so in some patients who are a bit older than Nirupa this could even, like, happen by lifting something as light as three or four kilos, whereas in younger people who are 20 years of age, I generally expect them to make something like 15 to 20 kilos but I can't categorically classify that because it depends on age and it depends on the quality of the predisposing tissue.[14]

  • That the Appellant had some underlying age related degeneration in her rotator cuff.[15]
  • When those with that degeneration undertake repetitive work and are required to lift heavy objects, in Dr Gupta's view, that: 

 … causes that tear to progress in size and then once you're using the rotator cuff and lifting something heavy above your shoulder height, that's what predisposes to it.  I would call it acute tear if you sustained a fall on your shoulder or you had a motor bike crash and that would be an acute rotator cuff tear which occurs in the absence of any prior symptoms… but this is what we classify as an acute [on] chronic tear.[16]

  • Dr Gupta also added, apropos of discussing whether generally one felt pain in the shoulder at work and at home: 

So you have pain in the shoulder doing both things and the pain became exacerbated when she was lifting something heavy one day and putting it in the skip.  Now this is - this is quite a consistent injury history for something which causes acute [on] chronic rotator cuff tear… I can say that based on history but I cannot tell you for sure how much of the tear is because of the repetitive work.  I don't think anyone can say that.[17]  

  1. [38]
    Dr Gupta concluded, on the balance of probabilities, that the history told to him by the Appellant could have resulted in her rotator cuff tear.
  1. [39]
    The Appellant says that there was no evidence of any other traumatic event which could have caused the rotator cuff tear which she says incurred on 10 October 2016.
  1. [40]
    While the Appellant said that everyone at the workplace knew she was in pain, there was no reporting of this incident on 10 October 2016.  Nor had the Appellant, called "Terry", "Tania", "Shelley", "Tushari", "Sweta" or "Bea" to give evidence in these proceedings, all of whom the Appellant said were aware of her pain.[18]

Regulator's submissions as to issues to be considered

  1. [41]
    In summary, the Regulator submitted that what required consideration was as follows:
  1. Was that action a significant contributing factor to the rotator cuff tear that occurred in the Appellant's right shoulder, given:
  1. (A)
    The physical predisposing factors to injury for the Appellant given the history of pain;
  1. (B)
    The reporting of the incident and pain by the Appellant to the GP;
  1. (C)
    The lack of reporting of the incident and pain at the workplace;
  1. (D)
    The ongoing symptomology (or lack of) after the 10 October 2016 until the ultrasound results in 2016;
  1. (E)
    The inconsistent reporting of the date of events and pain sequelae;
  1. (F)
    Ongoing increase in the tear from the ultrasound results in 2016 and the MRI in 2017;
  1. (G)
    The Appellant continued to work at High Sun Express from 10 October until the work ceased at the end of the season, without any record of complaint.[19]

  Videos taken of the worksite 

  1. [42]
    Five videos were tendered into evidence in these proceedings which had been taken by the Appellant's son on 18 August 2017.[20]  These videos were recorded outside of the premises of High Sun Express and were able to show employees tipping soil into the skip.  It was submitted that these actions were as described by the Appellant. 
  1. [43]
    While the videos had been taken some ten months after the Appellant had ceased working for the employer, it is submitted that there was no evidence to show that the nature of that work had altered in any substantial manner during that period of time.
  1. [44]
    The Appellant submits that the videos show the following:
  1. (a)
    they show workers with similar boxes and with the wheeled buckets described by the Appellant (although the yellow boxes depicted in some videos were not in use at the relevant time);
  1. (b)
    workers were required to lift the containers to about shoulder height or higher to tip the contents into the skip;
  1. (c)
    they appear to show both male and female workers performing the task;
  1. (d)
    one video shows two workers jointly carrying and tipping a wheeled green bucket but the rest of the videos show workers performing the task of carrying and tipping the buckets and boxes on their own; and
  1. (e)
    the two videos depicting the green wheeled buckets show the buckets being carried to the bin, rather than being wheeled, consistent with evidence that the wheels on the buckets were frequently defective or missing.[21]
  1. [45]
    With regard to the work performed by the Appellant, most of those seedling trays would be taken through a blower and dead cells would be removed at that stage.  The Appellant would then proceed to work on those trays.
  1. [46]
    After that part of the work was completed, there would be a residue of dirt in the box which was to be tipped into the skip when it was clear that the box needed emptying.
  1. [47]
    The evidence differs as to how often the Appellant was actually required to perform this part of the job or whether the job of tipping soil into the skip was on occasions performed by others at the workplace who would assist the Appellant.
  1. [48]
    The Appellant's evidence was that on 10 October 2016, she had carried boxes to the skip and in so doing, had to reach up to tip the soil into the skip.  It was noted that the Appellant's height is around 152 cm (5 feet) tall.  It was estimated that the height of the skip was around 1.2 metres.[22]

  Mr Jeffrey Bryde

  1. [49]
    Mr Bryde, in 2016, worked for High Sun Express as a Leading Hand/Machine Operator and was called to give evidence by the Regulator.
  1. [50]
    High Sun Express' clock-on payslip showed that Mr Bryde had worked on 10 October 2016, which was the nominated date of the Appellant's injury.  This however is contrary to the Appellant's view that Mr Bryde did not work on that day.
  1. [51]
    He had not recalled the Appellant mentioning anything about shoulder pain during the period from 6 to 12 October 2016.  What he had recalled was that that some time before those dates, he thought the Appellant had mentioned "something about her neck"[23].  Mr Bryde said that if he had been advised by the Appellant that she was having shoulder pain, he could have reported that to the Manager.
  1. [52]
    Mr Bryde explained that when the styrofoam boxes and/or other boxes were filled with dirt he would usually empty the boxes into the skip and for the women who were working on that day and he said that: 

I would mention to the ladies that they're not to lift anything that was heavy.  I would mention that every day.[24]

  1. [53]
    Mr Bryde said that the box being used by the Appellant and others in the consolidation area were not too full and he would then collect the box and put it into the wheelie bin and then take it to the skip.  He added that the box was rarely full.  In the course of a day, he said that he would lift around five boxes into the skip for the women who worked in that area.[25]
  1. [54]
    At other times, if a box was heavy, a worker would usually find another colleague to assist them in taking and emptying into the skip.
  1. [55]
    Mr Bryde denied the suggestion that he had never emptied any box for the Appellant.  While Mr Bryde held to his view that he had carried out the boxes for the women working in that particular area, he said that only on some occasions the female workers carried out their boxes to the skip.[26]
  1. [56]
    Both Ms Silvallana and Mr Goeldner, work colleagues of the Appellant, disputed that evidence.

Ms Jessica Silvallana

  1. [57]
    Ms Sivallana worked for High Sun Express from March 2014 to November 2016 and was called to give evidence by the Appellant.  She worked five days per week in the propagation and consolidation department.  She worked in the consolidation area initially for two weeks and "on a handful of times" would help in that area during the year.[27]
  1. [58]
    The boxes of soil were normally emptied into the skip by the individual employee working in that area.  She said that she had never been told that someone else would or could empty the boxes on her behalf.  She agreed, however, that on occasions that had happened.  
  1. [59]
    Ms Silvallana stated that there had been no instructions of policies on safe work practices provided by High Sun Express during her period of employment at the workplace.
  1. [60]
    Ms Silvallana said that when the skip was close to empty the soil could be deposited at the end of the skip.  However when the skip was close to full and its sides were in an upright position, she would have to lift the box up to the height of her shoulder to be able to tip the soil into the skip.  She said that this manoeuvre was awkward.  Ms Silvallana height was around 5 feet and 3 inches.  She recalled having to empty her boxes in the consolidation area up to three times per day.
  1. [61]
    Her evidence was that the Appellant took her own boxes to the skip at least once per day.  She had also recalled the Appellant advising her that she had "a bit" of shoulder pain throughout the year and that it was hurting a little more towards the end of 2016. [28]Ms Silvallana said the Appellant had described the pain as "nagging pain … just like many of the ladies".[29]  She also agreed that Mr Bryde did sometimes help workers tipping their boxes into the skip but she didn't recall him specifically tipping the Appellant's boxes into the skip.[30]
  1. [62]
    In the propagation area, in which she mostly worked, she was advised by her Team Leader that if a box was too heavy to lift then that person could get someone else to assist them.
  1. [63]
    In Re-Examination by the Regulator, Ms Silvallana said that workers in her own area tipped their own boxes into the skip and that she had not heard Team Leaders saying to anyone that these workers should be doing that on their own.[31]

Mr Henry Goeldner

  1. [64]
    Mr Goeldner was called to give evidence by the Appellant.  He had worked for High Sun Express during 2016 from February to June.  He worked in a casual position and often worked two days a week.  He had worked in a number of locations at the workplace and had worked in the consolidation area around three to four times.
  1. [65]
    Working in that area, he would tip his boxes into the skip around four times per day.[32]  He was not aware of any workplace policies concerning workplace health and safety.  He learned what to do at work by watching others.  Mr Goeldner gave evidence similar to that of those witnesses who had viewed the video recordings.
  1. [66]
    In his view, working in the consolidation area required a worker to empty boxes more frequently than in other areas of the workplace.
  1. [67]
    Mr Goeldner was aware of the Appellant at the workplace but he was mostly aware of her presence in the lunch break as workers had their lunch together.  He was aware of her working in the consolidation area and had observed her on a couple of occasions emptying her boxes into the skip.  When he was working in other areas of the workplace he could only say that he had "probably" noticed her in the skip area.[33]

Mr Dewilde Lottering

  1. [68]
    Mr Lottering worked for High Sun Express performing the duties of graphic design and as a workplace health and safety officer, but only undertook this position in December 2016 after the Appellant had left High Sun Express.   Mr Lottering was called to give evidence by the Regulator.
  1. [69]
    In Cross-Examination, Mr Lottering said that he had no interaction with the Appellant, other than for dealing with paperwork concerning her Workers' Compensation claim, while she was working for High Sun Express.
  1. [70]
    Mr Lottering confirmed the following:
  • That there were no written procedures for the lifting of boxes containing dirt into the bin at the workplace;
  • Risk assessments had been made concerning procedures to be adopted across the workplace.  However, he was not aware that any of these processes had occurred before 2017;
  • His initial enquiries into work in the consolidation area of the workplace commenced after the alleged incident with the Appellant; and
  • At that time, he believed that the "same people don't carry all the boxes to the skip".
  1. [71]
    After making his initial risk assessment enquiries of employees in the areas in which the Appellant had worked, Queensland Workplace Health and Safety was approached to visit the workplace in or about July 2017.  He explained that Workplace Health and Safety officers: 

… so they asked for things like risk assessments on all the different tasks and explaining the differences between the different boxes getting filled, some boxes being under the machines and some boxes being work - manual stations, and so - and that - then a risk assessment was performed in both the task, doing it as well as the boxes and how heavy they are and all that stuff.[34]

  1. [72]
    In summary, The Appellant says that the outcome of those assessments highlights the following:
  1. (a)
    prior to that risk assessment (therefore, at the time that the Appellant was working at High Sun Express) there were no written procedures with respect to performing the lifting tasks, nor any formal policies or guidelines with respect to who was to perform it;
  1. (b)
    apparently following a complaint to the effect that the task was awkward, Workplace Health and Safety Queensland asked for risk assessments on the task;
  1. (c)
    in response, Mr Lottering conducted enquiries and investigations with the staff in the consolidation area as to how the task was then being performed;
  1. (d)
    the specific task being looked at was carting dump soil to the skip, and was established to be performed by blowout machine operators or consolidation staff;
  1. (e)
    in relation to the frequency of carting the boxes of soil to the skip, Mr Lottering established on the basis of those inquiries and investigations that the boxes were generally cleared once to twice per day, depending how quickly they filled up;
  1. (f)
    the weight of the contained would vary from about 7.8 kg in a single load after an average day for a box from a manual consolidation station, to 14.7 kg in an average load from the blowout machine; and
  1. (g)
    from discussions with the staff, it was established that the issue of awkwardness of carrying the polystyrene boxes could be better improved with handles.[35]
  1. [73]
    As a consequence of these findings, Mr Lottering prepared an internal procedure document formalising the procedure to be undertaken while performing the type of duties under consideration.  That document stated as follows:

9.If staff is uncomfortable lifting anything over the skip wall they should ask for additional assistance from someone capable, using multiple people for heavier lifting.[36]

  1. [74]
    The height of the skip was identified by Mr Lottering as being approximately 1.2 metres, but there could be some variations on that height, depending if a different sized skip was delivered to High Sun Express by the skip company[37].  As pointed out, the Appellant is

5 feet tall and in order to tip soil into the skip would require her to lift the box at least to shoulder height.

Ms Barbara Bell

  1. [75]
    Ms Bell was called to give evidence by the Regulator.  During 2016, amongst other duties, she oversaw work in the consolidation area of High Sun Express and had been employed by the business for 23 years.  She had also worked as a Team Leader at various times in the consolidation area.
  1. [76]
    Ms Bell said that none of the employees were expected to do anything with which they were uncomfortable.  Mr Bryde often assisted workers by tipping their boxes into the skip.[38]  The Leading Hand in the consolidation area during 2016 was Mr Bryde and the Team Leader was "Terry".
  1. [77]
    If a worker had reported suffering from pain of any type, Ms Bell said they would contact the first aid person and then ensure that the worker was not continuing with repetitive work at that time.  A workplace incident form would then be completed.[39]
  1. [78]
    She had not recalled the Appellant ever complaining of pain whilst at work.  She first became aware of any injury incurred by the Appellant occurred at the Christmas party in December 2016 where the Appellant had her arm in a sling.[40]
  1. [79]
    Ms Bell had observed the Appellant performing her duties as she had trained both "Terry" and Mr Bryde and she was keen to see how different staff members were performing.
  1. [80]
    Ms Bell said that, when performing the type of work in consideration, she would not have been able to fill one box of soil during the course of a day.[41]  She had not recalled the Appellant having to tip her soil boxes into the skip on frequent occasions in the course of any one day.
  1. [81]
    On the occasions when heavy boxes had to be tipped into the skip, if a male wasn't around to assist then two people were required to assist with the lift and emptying of the box. [42]

Consideration of Evidence and Conclusion

  The Regulator's list of inconsistencies in the Appellant's case

  1. [82]
    The Regulator nominated the following inconsistencies in the Appellant's case:[43]
  1. (a)
    In correspondence dated 1 February 2017, the Appellant stated that "the basis  of my application for Workers' Compensation was that I sustained an injury within the period of about 4 weeks prior to the last date when I worked at High sun".[44] The Regulator said that at the earliest, this date of injury would be 24 October 2016.
  1. (b)
    The report of Dr Muthuthantri on 20 November 2016, indicates that the pain referred to by the Appellant was in excess of two months as at that date, bringing the date earlier than 20 September 2016.
  1. (c)
    In evidence, the Appellant conceded that she noticed pain when she performed "digging" and that it occurred "more than two months before I saw the Doctor".
  1. (d)
    On 7 February 2017, the Appellant stated "it was not until four to five weeks later that I attended the doctor when the problem did not resolve".
  1. (e)
    The Regulator said that if the alleged date of injury was 10 October 2016, then the date-range for reporting to the Doctor is 7 or 14 November 2016.  The Appellant visited her General Practitioner on 20 October 2016.  The Regulator submits that this represents another version of events as to when the alleged injury occurred.
  1. (f)
    The Appellant said that she had kept a "booklet/notebook" which assisted her in identifying the date of her injury[45].  However, while there is no specific reference in the booklet/notebook of any injury or relevant incident on that day, the Appellant stated that she only recorded the work she had done that day.[46]
  1. (g)
    The Appellant said that she was informed about the tear in her right shoulder before she made her Workers' Compensation claim.
  1. (h)
    Commenting upon why the Appellant had not identified the date of 10 October 2016 as her injury date until 13 December 2016, the Appellant stated 

  I was not sure at that time.  Even I was not sure later on when Dr Gupta asked me.  Only before that, only I realised I went through, because everybody was asking when it happened, because I couldn’t remember.  I knew that I was in pain and everybody at work knew that I was working with pain, and most of the time they even used to park the trays for me, because I couldn’t.[47]

  1. (i)
    After hearing that she had incurred a rotator cuff tear, the appellant had to think of when this might have happened.  She did recall experiencing a sharp pain and ultimately nominated the date of 10 October 2016 as the date of her injury.
  1. (j)
    In her admission that she had experienced suffering from minor and similar pain over time, the Regulator  believed that to be consistent with the Appellant suffering long term pain, rather than a specific pain event representative of a tear to the rotator cuff, which is the subject of her claim.  This is consistent with the Appellant stating that she had ongoing pain in her shoulder over time preceding 10 October 2016.
  1. (k)
    The Appellant had not made an Incident Report concerning pain at work relating to her arm or shoulder.  However, the Appellant had previously reported a workplace incident.  A copy of the Workplace Incident Report[48] showed that there was a box to be ticked if a worker suffered an injury to their shoulder.
  1. [83]
    Against that background, the Regulator stated that it did not dispute the fact that the Appellant had a tear in her shoulder, but submitted: 

… that the Appellant has constructed the pain complaint and date of the alleged incident to coincide with her work, so as to make a Workers' Compensation claim.[49]

The Regulator did not accept that the Appellant had suffered a pain event on 10 October 2016. 

  1. [84]
    It is accepted that there are inconsistencies in the Appellant's evidence concerning the alleged date of injury.  These have been identified above.
  1. [85]
    In the Appellant's Statement of Facts and Contentions, the following, inter alia, is recorded:

On 10 October 2016 the Appellant lifted a box full of soil above shoulder height to empty it into a bin, and immediately felt a sharp and sudden pain in her right shoulder. [50]

  1. [86]
    During the course of the hearing, the Commission asked Counsel for the Appellant to identify the date of the Appellant's injury.  The response to that question was as follows:

 The 10th of October 2016… my client experiences some symptoms in her shoulder prior to that but, in terms of a date of injury for the rotator cuff tear, that's the basis on which the application for compensation is made. [51]

  1. [87]
    In Yousif v Workers Compensation Regulator[52]  Martin J referred to Statements of Facts and Contentions and determined that the Statement should represent a complete statement of the Appellant's case, and, unless appropriate amendments were permitted by the Commission, a party is bound by those facts and contentions and may only lead evidence which relates to the identified matters.
  1. [88]
    As previously stated, it was only in final submissions that the Appellant added:

At the very least, the Appellant's rotator cuff tear was an aggravation of an underlying condition, and the aggravation arose out of or in the course of her employment. [53]

  1. [89]
    I have been unable to accept the Appellant's claim that she incurred an injury on 10 October 2016 at her workplace.
  1. [90]
    Notwithstanding the inconsistencies regarding her identification of the date of her injury, the Appellant has been unable to provide any other corroborating evidence to support her claim.
  1. [91]
    While there was one reference to the Appellant having "shoulder pain throughout the year" (see evidence of Ms Silvallana[54]), there was no commentary made by the Appellant at the time of the alleged injury to anyone at the workplace in this regard.
  1. [92]
    There has been a range of evidence concerning the practices adopted by employees of High Sun Express who worked in the consolidation area.  I have accepted evidence to the effect that there may be occasions when the boxes used by workers in the consolidation area may be emptied twice in the course of a day.  However, that acceptance is based upon the evidence that when a worker was required to move from the consolidation area to another area in the one day, they would have to clean their own area before moving and after returning to the consolidation area. 
  1. [93]
    Dr Guptas' Medical Report of 15 June 2017 was to the effect that, after examining the Appellant, considering her history and the Appellant's available medical records, on the balance of probabilities, the circumstances which she had described to him "could" have resulted in a rotator cuff tear.[55]  He further commented upon the work described by the Appellant as the "likely cause" of the rotator cuff tear.[56]
  1. [94]
    Dr Gupta also referred to the Appellant's "underlying pathology in the rotator cuff and the work and tipping the soil in the skip was the final straw that broke the camel's back".[57]  Dr Gupta did re-emphasise the issue of probable "underlying age related degeneration in her rotator cuff". [58]
  1. [95]
    He noted that there had been an increase in the tear from the 2016 ultrasound to the MRI of June 2017.
  1. [96]
    While Dr Gupta was of the opinion that from the date of the nominated lifting event (viz., 10 October 2016), the Appellant had persistent pain with a reduction of functional activities.[59]
  1. [97]
    The Appellant's evidence was that the sharp pain she had felt on 10 October 2016, had decreased sufficiently for her to return to work the following day with the same degree of pain she experienced prior to the alleged incident.
  1. [98]
    Dr Gupta said that the type of pain experienced from a torn rotator cuff tear, although it can be masked, causes pain for a year or so.
  1. [99]
    The Appellant's evidence is clear that she had experienced pain before 10 October 2016 and onwards.  The Regulator submits that the Appellant's symptomology is not consistent with sustaining a tear of the rotator cuff on that specific date.
  2. [100]
    Finally, Dr Gupta said he didn't know how much the tear was caused by repetitive work and how much of the pain she had prior to the alleged incident of 10 October 2016.  Dr Gupta was also clear when he stated that he had no knowledge of the Appellant's previous pathology.[60]
  1. [101]
    In my view, the evidence of Dr Gupta is equivocal.  In his view, while it is possible that the event so described by the Appellant could have caused her rotator cuff tear, there were a number of factors which remained unknown to Dr Gupta.  These have been identified above.
  1. [102]
    The Appellant was familiar with High Sun Express' Workplace Incident Report procedure, having previously completed one of those forms.[61]
  1. [103]
    In Carman v Q-COMP (Carman)[62], Hall P stated that:

Here a temporal connection between the pain and the work can only be found on the evidence of Ms Carman.  There is competing explanations/cause; viz, the natural progression of the degenerative back condition.  If Ms Carman's evidence of heavy work be rejected, even if it be assumed that her back became painful at or after work, there is no basis for a finding that the work was a "significant contributing factor" to the pain rather than an occasion for its expression.

  1. [104]
    The Appellant contends that while she has described an event on 10 October 2016 as being causative of her injury, I concur with the Regulator that she has been "unable to point to a specific period when worsening of her pain occurred or restricted her duties". [63]Further, there has been no evidence from her treating Medical Practitioners prior to her making her Workers' Compensation claim, to support her claim that the injury, said to have incurred, arose out of her employment.
  1. [105]
    Pleming v Workers' Compensation Board of Queensland (Pleming)[64] considers the aggravation to an injury while at work and the question of the degenerative condition itself and whether the work was no more than an "irritant" and should not be considered to be a contributing factor to the injury.
  1. [106]
    I have been unable to accept that a specific event occurred to the Appellant on 10 October 2016.  There is nothing of substance to corroborate the event occurring on that day.  I have accepted the Regulator's submission that:

… given the lack of ongoing symptomology after the alleged event on 10 October 2016, it cannot be said that it was this event that caused the tear in the appellant's rotator cuff. [65]

Conclusion

  1. [107]
    The Appellant has been unable to prove on the balance of probabilities that she injured herself on 10 October 2016.  The Appellant had suffered ongoing pain for an extensive period of time.
  1. [108]
    The Regulator's submission that this matter is analogous to those described in Carman[66]and Pleming[67], is accepted.
  1. [109]
    I have found the witnesses for the Regulator to be credible and have preferred their evidence over that of the Appellant's witnesses.  The witnesses for the Appellant lacked, in my view, any clear authenticity as the evidence shows that they had not worked for any relevant period of time with the Appellant and were, in my view, unable to confidently express an informed view.  
  1. [110]
    In Newberry v Suncorp Metway Insurance Ltd[68], Kean JA (as His Honour then was) stated:

Further, there is no warrant in the language of s. 32 of the WCRA for reading the words "if the employment is a significant contributing factor to the injury" as lessening the stringency of the requirement that the injury "arises out of the employment" as was suggested in the course of argument on the appeal.  It is clear, as a matter of language, that the words "if the employment is a significant contributing factor to the injury" are intended to be a requirement of connection between employment and the injury additional to each of the requirements that the injury occur in the course of employment or arising out of the employment.  It cannot, in my respectful opinion, sensibly be read as lessening the stringency of the latter or increasing the stringency of the former. 

  1. [111]
    The Appellant has been unable to prove, on the balance of probabilities, that the injury arose out of her employment and that her employment was a significant contributing factor to the injury pursuant to s 32(1)(a) of the Act.
  1. [112]
    For these reasons above, the Appeal is dismissed.

Orders

  [1]  The Appeal is dismissed; and

   [2]  The Appellant is pay the Regulator's costs of and incidental to the Appeal.

Footnotes

[1] T1-5.

[2] Appellant's submissions, p 3, 2.4.

[3] T2-30.

[4] Exhibit 2.

[5] T1-30.

[6] T1-47.

[7] T2-5.

[8] Exhibit 8.

[9] Exhibit 9.

[10] T2-15.

[11] T2-16.

[12] T2-16.

[13] T2-17.

[14] T2-20.

[15] Ibid.

[16] T2-20.

[17] T2-23.

[18] T1-57.

[19] Regulator's submissions, p 2, 10(b)(i).

[20] Exhibit 1.

[21] Appellant's submissions, p 9, 3.18.

[22] T2-54.

[23] T2-29.

[24] T2-31.

[25] T2-32.

[26] T2-37.

[27] T1-80..

[28] T1-77.

[29] T1-78.

[30] T1-80.

[31] T1-83.

[32] T1-86.

[33] T1-90.

[34] T2-47.

[35] Appellant's submissions, p 11.

[36] Exhibit 12, p 2.

[37] T2-54.

[38] T2-61.

[39] T2-62.

[40] Ibid.

[41] T2-64.

[42] T2-65.

[43] Regulator's submissions, pp 5-7.

[44] Exhibit 4.

[45] T1-33; T1-58; and Exhibit 10.

[46] T1-60.

[47] T1-56.

[48] Exhibit 5.

[49] Regulator's submissions, P 7, [44].

[50] Appellant's Statement of Facts and Contentions.

[51] T1-5.

[52] Yousif v Workers Compensation Regulator [2017] ICQ 004, [15]-[17].

[53] Appellant's submissions, p 3, 2.4.

[54] T1-77; T1-78.

[55] Exhibit 9.

[56] T2-15.

[57] T2-16.

[58] T2-20.

[59] T2-21.

[60] T2-23.

[61] Exhibit 5.

[62] Carman v Q-COMP (2007) 186 QGIG 512.

[63] Regulator's submissions, p 16, [113].

[64] Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181.

[65] Regulator's submissions, p 17, [118].

[66] Carman v Q-COMP (2007) 186 QGIG 512.

[67] Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181.

[68] Newberry v Suncorp Metway Insurance Ltd[2006] QCA 48, p 10, [42].

Close

Editorial Notes

  • Published Case Name:

    Goonawardena v Workers' Compensation Regulator

  • Shortened Case Name:

    Goonawardena v Workers' Compensation Regulator

  • MNC:

    [2018] QIRC 148

  • Court:

    QIRC

  • Judge(s):

    Member Swan DP

  • Date:

    05 Dec 2018

Appeal Status

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

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