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Johnston v Workers' Compensation Regulator[2020] QIRC 105

Johnston v Workers' Compensation Regulator[2020] QIRC 105

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Johnston v Workers' Compensation Regulator [2020] QIRC 105

PARTIES:

Johnston, Adam 

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2019/76

PROCEEDING:

Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:

14 July 2020

HEARING DATES:

28 January 2020

29 January 2020

18 February 2020

DATES OF WRITTEN SUBMISSIONS:

Respondent's submissions, 3 April 2020

Appellant's submissions, 17 March 2020

MEMBER:

HEARD AT:

IC Power

Brisbane

ORDERS:

  1. The appeal is upheld;
  2. The decision of the Respondent dated 9 April 2019 is set aside and substituted with a new decision;
  3. The Respondent is to pay the Appellant's costs of and incidental to this appeal.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR - PHYSICAL INJURY - worker employed as a concrete pump operator - suffered from bilateral wrist injury - whether injury arose out of or in the course of employment - whether employment a significant contributing factor to the injury

LEGISLATION:

CASES:

APPEARANCES:

Workers' Compensation and Rehabilitation Act 2003 (Qld), s 11 and s 32

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

MacArthur v WorkCover Queensland (2001) 167 QGIG 100

McDonald v Q-COMP (2008) 188 QGIG 180

Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301

Mr E. Williams of Counsel instructed by The Personal Injury Lawyers. 

Ms B. McMillan of Counsel directly instructed by the Workers' Compensation Regulator.

Reasons for Decision

Introduction

  1. [1]
    Mr Adam Johnston ('the Appellant') was employed as a concrete pump operator with Large Concrete Pumping Pty Ltd ('the Employer') in October 2018. On 7 November 2018,  Mr Johnston made an application to WorkCover for workers' compensation. Mr Johnston’s application was not accepted by WorkCover on the basis that he did not sustain an injury within the meaning of s 32 of the Workers’ Compensation and Rehabilitation Act 2003 (‘the Act'). On review, the Worker's Compensation Regulator (‘the Regulator’) confirmed WorkCover’s decision ('the decision').  Mr Johnston appeals against the decision.
  1. [2]
    The Regulator submits that:
  • Mr Johnson’s personal injury did not arise out of, or in the course of, the Appellant’s employment; and
  • Mr Johnson’s employment was not a significant contributing factor to the wrist injury.
  1. [3]
    Mr Johnston submits that:
  • he suffered the injuries of bilateral wrist injury following a fall at work; and
  • this injury arose out of or in the course of his employment and his employment was a significant contributing factor to those injuries.
  1. [4]
    There is no dispute between the parties that:
  • Mr Johnston was a ‘worker’ within the meaning of s 11 of the Act; and
  • Mr Johnston has suffered a personal injury, namely bilateral wrist injury.
  1. [5]
    In my view, Mr Johnston’s wrist injury did arise out of his employment and his employment was a significant contributing factor to those injuries. Mr Johnstone therefore sustained an injury within the meaning of the term pursuant to s 32 of the Act.
  1. [6]
    My reasons follow.

Issue for Determination

  1. [7]
    The issue to be determined is whether Mr Johnston suffered a personal injury within the meaning of s 32 of the Act. Section 32 of the Act provides as follows:

"32 MEANING OF INJURY

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

Nature of Appeal 

  1. [8]
    This appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant.[1] The Commission must be satisfied that the worker has suffered an injury within the meaning of the Act.[2]

Onus of Proof

  1. [9]
    The Appellant carries the burden of proof on the balance of probabilities.[3] The Appellant must prove on the balance of probabilities that the claim is one for acceptance, that is:
  • The Appellant suffered an injury;
  • The injury arose out of, or in the course of, his employment with the Employer; and
  • The employment with the employer was a significant contributing factor to the injury.

Witnesses

  1. [10]
    In the course of the proceedings, evidence was provided by ten witnesses.  
  1. [11]
    The witnesses for the Appellant were:
  • Adam Johnston;
  • Hagan Jorgensen;
  • Hagan Jorgensen;
  • Danielle Mason;
  • John Short;
  • Velsilios Loukaras;
  • Dr Couzen; and
  • Dr Ho.
  1. [12]
    The witnesses for the Respondent were:
  • Shane Large;
  • Gregory Whalen; and 
  • Shane Godena.

Submissions

  1. [13]
    The Appellant submits the following, in summary:
  • On 5 October 2018 Mr Johnston attended a construction site at 25 Shrewsbury Avenue, Maudsland, Queensland to carry out his work duties at the direction of his employer.
  • At the worksite there was formwork in place which included star pickets, some of which were erected on an angle. There were no safety caps on the star pickets.
  • Mr Johnston was traversing the worksite while looking at the pump. The jiggered edge of the top of an angled star picket caught Mr Johnston's work boot and he subsequently fell.
  • Mr Johnston landed on outstretched arms to stop himself being impaled by another star picket without a safety cap. 
  • Mr Johnston injured his wrists in the fall. 
  • The leading hand from WW Concrete, Mr Shane Godena, assisted the Appellant operate the concrete pump hose due to his injury.
  • The Appellant advised his employer, Mr Shane Large of his fall later that day. 
  1. [14]
    The Respondent submits the following, in summary:
  • Mr Johnston did not report or disclose to the Employer or any person on site, during the course of his work on 5 October 2018, that he fell or injured himself. 
  • Mr Johnston completed his work and later asked another worker, Mr Shane Godena, for assistance with his truck, which Mr Godena provided.
  • Mr Johnston did not report or disclose to Mr Godena that he had fallen or injured himself, or request Mr Godena’s assistance with his work pumping concrete due to injury or pain in his wrists.
  • Mr Johnston presented for work and undertook work as required on 8, 10 and 11 October 2018. Mr Johnston was not rostered for work between 12 -17 October 2018 and presented for work and undertook work as required on 18, 19, 20, 22, 23 and 24 October 2018. 
  • Mr Johnston presented for work on 25 October 2018, however, due to a boom pump failure and time required for repair, the Employer terminated Mr Johnston's casual employment.
  • On 30 October 2018, Mr Johnston consulted Dr Covan Ho, General Practitioner, for the first time regarding his wrist injury. Mr Johnston reported to Dr Ho that he fell three weeks earlier but did not seek medical attention. 

Evidence

Mr Johnston’s evidence

  1. [15]
    Mr Johnston gave evidence that he fell down on the worksite between 7.00 and 7.30am on 5 October 2019, describing the incident as follows:

"I flung my box around behind me, and I just got both arms out straight and hit the ground with them straight and locked." 

  1. [16]
    Mr Johnston stated that he couldn’t recall whether he yelled out as he fell or after he hit the ground and that after the fall, his hands were throbbing and hurting.
  1. [17]
    Mr Johnston gave evidence that he remembered Mr Godena being on site on 5 October 2018, and that Mr Large was not present on that day. 
  1. [18]
    Although Mr Johnston said that Mr Godena had witnessed this incident, in  cross-examination he could not confirm whether Mr Godena saw him fall. 
  1. [19]
    Mr Johnston stated that he did not complete an incident report but said he told Mr Large about the incident that night when speaking with him about the pump truck. He stated that he remembered what he said to Mr Large, but could not remember what Mr Large said in reply. 
  1. [20]
    Mr Johnston said that he texted Mr Jorgensen requesting his assistance at the site when he could not start the truck at the end of the day. 
  1. [21]
    Mr Johnston said that he told Mr Jorgensen about the injury when he attended the site to assist with starting the truck. 
  1. [22]
    Mr Johnston said he spoke to his flat mate Mr Loukaras when he got home about the incident.  Under cross-examination, Mr Johnston said that he was "pretty confident" he told Mr Loukaras he "had a fall" and he had hurt his wrist and they were throbbing.[4]
  1. [23]
    Mr Johnston gave evidence that he spoke to Ms Mason over the weekend following the incident about his fall at work. He could not recall the exact words he used in this conversation with respect to the incident but recalls telling Ms Mason that he tripped on a star picket and hurt himself.[5]
  1. [24]
    Mr Johnston described speaking to Mr Short about the incident and confirmed that he told him about his wrists hurting. He stated that he could not remember the exact wording but remembered that the conversation covered the incident.[6] 
  1. [25]
    Mr Johnston agreed that he worked a number of further shifts for the Employer in the weeks following 5 October 2018.[7] and agreed that he did not report on any of those shifts that he had any difficulty with his work due to his injury.[8]
  1. [26]
    When pressed during cross-examination about why an incident report was not completed following the injury, the Appellant stated the following:

"I’m not aware of any being available. When I was concrete pumping, I had never seen them. I had never been alerted to them, or incident reporting procedures. No."

  1. [27]
    With respect to a question regarding training, policies in relation to incidents and accidents, the Appellant replied:

"We didn’t - didn’t receive any, no."

Mr Jorgensen’s evidence

  1. [28]
    Mr Jorgensen gave evidence that he attended the site late in the afternoon on 5 October 2018 after receiving a text message from Mr Johnston requesting mechanical assistance with his truck. 
  1. [29]
    Mr Jorgensen described his recollection as ‘pretty vague’ however he recalled being told about an event in relation to the Appellant falling near a star picket and some issue in relation to the Appellant’s wrists.[9] Mr Jorgensen gave the following evidence about his discussion with the Appellant on the 5 October 2018:

“He - had said that he’d had an incident earlier in the day. I believe he’d slipped over or something, maybe tripped on some steel, and I - I vaguely recall him saying he might have caught himself on a star picket, or something, and he may have had his hand roughly bandaged, as well, when I got there.”[10]

Mr John Short’s evidence

  1. [30]
    Mr Short was a long-time friend of the appellant who gave evidence that he had spoken Mr Johnston on the telephone on or around 5 October 2018. 
  1. [31]
    Mr Short described the conversation as follows:

"--- He just said he was at work and tripped over. I think it was a star picket. He tripped over a star picket, and there was another one without the yellow cap. They’ve normally got the cap on top to stop you hurting yourself if you fall on them, and nearly impaled himself with it, and he said he hurt his wrists somehow on it."[11]

  1. [32]
    When asked by the Appellant’s counsel, Mr Short said he recalled the Appellant telling him that:

"he’s been getting grief with the wrists. I know at the time, when he rang me, he said they were sore."[12]

  1. [33]
    Mr Short gave evidence that he could not clearly recall whether the Appellant had told him that he reported the incident or the injury to anyone on-site. 

Ms Danielle Mason’s evidence  

  1. [34]
    Ms Mason was a friend of the appellant and gave evidence that she spoke to Mr Johnston on the telephone on the weekend after the incident was said to have occurred. 
  1. [35]
    Ms Mason gave evidence that Mr Johnston had provided the following description of the incident: 

"he said, well, you know, I nearly got impaled at work today … then he described that he got his boot caught in a stake thingy … but he managed to land by putting his arms in front of him and sort of pushing - pushing - pushing himself away".[13]

Mr Velsilios Loukaras' evidence

  1. [36]
    Mr Loukaras was a flatmate of the appellant on 5 October 2018 and gave evidence that he spoke with Mr Johnston upon his return home from work on that day. 
  1. [37]
    Mr Loukaras gave evidence that the Appellant had explained to him what had happened in the following terms:

"Well, he said - he said something - that he tripped over some star pickets. Now, I don’t even know what a star picket is. So he explained it, and I said to him - but he didn’t tell me what it is, and he said that he fell with his hands, and he saved himself, because there - another star picket would have went right through his body."[14]

  1. [38]
    Although Mr Loukaras did not initially describe the Appellant’s injury, when asked in evidence in chief Mr Loukaras said:

"I don’t know - I think he said that he landed on his hands, right? So his body - his - his hands were hurting, but nothing else that I - I can recall."[15]

  1. [39]
    Mr Loukaras prepared a statutory declaration at the Appellant’s request on 18 January 2019 outlining his record of the conversation. 

Mr Large’s evidence

  1. [40]
    Mr Large provided evidence that he attended the site between 8.30-9.00am on  5 October 2018 for between 5 and 10 minutes and exchanged greetings with the Appellant before moving off. 
  1. [41]
    Mr Large said he saw the Appellant return the truck on the evening of 5 October 2018 and that he did not appear to be in pain or be struggling with his work, nor was his hand bandaged.[16]
  1. [42]
    Mr Large identified Exhibit 9 as setting out the days and hours the Appellant worked on and after 5 October 2018. He recalled seeing the Appellant many times after 5 October 2018 and he did not appear to have any difficulty doing his work.[17]
  1. [43]
    Mr Large said that Mr Jorgensen called him to offer assistance with the broken-down truck, but he didn’t accept the offer. Mr Large stated that he heard from the Appellant that he got the truck going by himself and the mechanics that Mr Large had proposed to use were not needed.[18]
  1. [44]
    Mr Large gave evidence that he assumed that he would have remembered the incident if it had occurred. Mr Large acknowledged that he does not remember what happens ‘day in / day out’[19] however in response to the suggestion that he might not remember conversations with his truck operators he responded with the statement – "Yes, but if it was an injury to a worker, mate, that’s at the top of the list."[20]

Mr Whalen’s evidence 

  1. [45]
    Mr Whalen is the owner of WW Concreting. 
  1. [46]
    Mr Whalen gave evidence that he arrived on the site by 5.30am on 5 October 2019 and left around 9.30 or 10.00am. 
  1. [47]
    He stated that he did not observe anyone injure themselves onsite when he was there or any worker on site reporting an incident.[21]
  1. [48]
    When asked about Mr Godena performing the work of the line hand assisting with the concrete pour as depicted in Exhibit 4 (the photo of the worksite), Mr Whalen said "That happens all the time." [22]
  1. [49]
    The Appellant did not identify Mr Whalen as a witness to the incident. 
  1. [50]
    Mr Whalen gave evidence that the fall did not occur.
  1. [51]
    Mr Whalen was unsure whether the photograph depicting the workers pumping concrete was of the jobsite in question. 
  1. [52]
    Mr Whalen accepts that he has an interest in the outcome of this appeal on the basis that he is a party to the Appellant’s common law claim. 

Mr Godena’s evidence

  1. [53]
    Mr Godena was employed as a concreter by a separate company named WW Concrete and was working on the relevant site on 5 October 2018.
  1. [54]
    Mr Godena gave evidence that he arrived on site around 6am and met the Mr Johnston who arrived shortly after. 
  1. [55]
    Mr Godena said that he did not observe Mr Johnston hurt themselves on site.[23] He did not see the Appellant fall and did not hear him call out and denied asking if he was ok. 
  1. [56]
    Mr Godena explained that on 5 October 2018, the Appellant did not have a line hand with him. He identified himself in Exhibit 4 (the photo of the worksite) and explained that he was doing that work "to make sure the concrete gets in the right spot", that "I didn’t do it for his benefit" and that this was not unusual. 
  1. [57]
    Mr Godena denied assisting the Appellant because he was in pain, stating the Appellant was not struggling and that he "knew nothing of his injuries".

Photo of worksite

  1. [58]
    Mr Johnston gave evidence that the photos tendered (Exhibits 3 and 4) show parts of the work site as at 5 October 2018. 
  1. [59]
    The Appellant gave evidence that the photo was taken as a joke for a third party and not in an effort to show the star picket that had caused his injury. 
  1. [60]
    The Respondent submitted that it is inherently improbable that the Appellant would have taken these photos in circumstances where he felt immediate pain after a fall, could not perform his work duties because of the pain and reported pain to multiple friends over the next several days. 

Delay in seeking medical assistance

  1. [61]
    The Appellant provided the following evidence as to why he did not initially seek treatment:

"[in] construction, you know, you bang yourself around, you get stuff in your eyes, you - it’s - it’s sort just sort of common practice. If you - if you went to the doctor every time you banged yourself, you would be three times a week."[24] 

  1. [62]
    The Appellant gave evidence that he presented to his General Practitioner, Dr Ho on 30 October 2018 and whilst he was there he outlined the following explanation to Dr Ho with respect to his wrist injury: 

"Well, my wrists, obviously, weren’t getting better. If anything, they were getting worse. So I went to - yeah - just to see if I had actually more than just a - just had a - had a fall and bruise, or whatever."

  1. [63]
    Mr Johnston gave evidence that he relayed to Dr Ho that he had fallen on outstretched hands onto both wrists.

Medical evidence

  1. [64]
    The Appellant attended the office of Dr Covan Ho, General Practitioner, on 30 November 2018 advising that he fell onto outstretched hands three weeks prior. Dr Ho requested an  x-ray and ultrasound of his wrist
  1. [65]
    On 2 November 2018, the Appellant underwent the x-ray and ultrasound on his wrists.
  1. [66]
    On 2 November 2018, Dr Stariha, Radiologist, reported that the ultrasound showed:
  • ECU tenosynovitis; 
  • Suspected trauma of the TFCC; and
  • A small dorsal wrist effusion with synovitis. 
  1. [67]
    On 5 November 2018, the Appellant attended upon Dr Ho for the results of the imaging.  Dr Ho referred the Appellant for an MRI on his wrists due to suspected trauma of his triangular fibrocartilage complex (‘TFCC’).
  1. [68]
    The Appellant attended upon Dr Couzens on 6 December 2018 who was unable to help the Appellant with his bilateral carpal tunnel and wrist pain until his WorkCover claim was accepted.
  1. [69]
    The Appellant attended upon Dr Ho on 6 December 2018 and was prescribed Panadeine Forte 500mg for wrist pain.  
  1. [70]
    On 17 January 2019 the Appellant attended upon Dr Abdullah, General Practitioner, due to his ongoing wrist pain and Panadeine Forte being ineffective in managing his pain.  Dr Abdullah prescribed Lycra 75mg. 
  1. [71]
    On 24 January 2019, the Appellant attended upon Dr Abdullah for a certificate for Centrelink as he was unable to work due to the wrist injury. 
  1. [72]
    The Appellant attended upon Dr Ho on 21 March 2019, 23 March 2019, 25 March 2019,  4 April 2019, 17 April 2019, 26 April 2019, and 3 May 2019 for management associated with his wrist injury. 
  1. [73]
    On 23 April 2019 the Appellant underwent an MRI on both of his wrists. On 1 May 2019, Dr Daunt, Radiologist reported that the MRI showed:
  1. a)
    Extensive ulnar and ulnar dorsal TFCC tear with mild ECU tendon / sheath changes;
  1. b)
    Partial tear LT ligament involving the doral band; and
  1. c)
    Small central defect in the articular disc of the TFCC.

Dr Ho's evidence

  1. [74]
    Dr Ho gave evidence that he remembered the patient coming in saying that he had fallen down three weeks ago at work. 
  1. [75]
    Dr Ho gave evidence that he made his clinical notes for the consultation with the Appellant on 30 October 2018 during the consultation. He agreed that there was no mention in the notes under 'History' of the Appellant reporting that he fell at work, however his impression was that "it related to work".[25]
  1. [76]
    Dr Ho said he would defer to the opinion of an expert hand surgeon to the extent of any diagnosis. 

Dr Couzens' evidence

  1. [77]
    Dr Couzens gave the following evidence when asked for a diagnosis for the injuries:  

"Well, we - based on the examination, remembering that I saw him in December of 2018 - based on that and the history of the fall and the subsequent MRI scan performed on the 1st of May 2019, which clearly shows he has got significant TFC tears, my diagnosis would be that he has a triangular fibrocartilage tear of both wrists."

  1. [78]
    Dr Couzens acknowledged in cross-examination that it was equally possible that the pain in the Appellant’s wrists arose over a long period of time being involved in physical labour. However, Dr Couzens opined the specific tears of the wrists as seen in the MRI would be more consistent with a traumatic origin rather than any degenerative cause.
  1. [79]
    Dr Couzens stated that although he would not be able to exclude the ECU synovitis noted in the Appellant’s wrist MRI as being idiopathic, he would struggle to recall a case in the past 20 years where he had diagnosed idiopathic ECU synovitis. 
  1. [80]
    Based on the evidence of Dr Couzens, I accept that it is more likely than not that the Appellant’s wrist injury was caused by a traumatic event rather than a degenerative condition.

Consideration

  1. [81]
    After observing the Appellant and hearing his oral evidence, I found him to be a truthful and reliable witness. He provided clear evidence of the circumstances in which he fell and made concessions against his interest where it would reasonably be expected for him to do so. 
  1. [82]
    I accept the Appellant’s submission that he did not seek medical attention immediately in the hope that the injury would subside, which is not an uncommon behaviour within the construction industry. 
  1. [83]
    With respect to the photos submitted of the worksite, in my view the photos simply confirm uncontentious evidence that star pickets without caps were on the site and Mr Godena was operating the hose pump at some point on the day in question. I am not persuaded that the Appellant’s action in taking the photos is inconsistent with the evidence that he suffered a wrist injury. The medical evidence does not indicate that the Appellant's injury was so severe that it denied him the use of his hands to the extent that he could not perform simple physical tasks such as using his phone.
  1. [84]
    The Respondent submitted that the Appellant was not a reliable witness on the basis that he could not recall details of critical conversations, although purported to be sure he disclosed his alleged injury to Mr Large. The Respondent submitted that the Appellant said that Mr Godena had his son with him on site, when the evidence reveals it was Mr Jorgensen who had his son with him later that day. I am not persuaded that these details are central to determining the reliability of the Appellant’s evidence. It would not be unusual to be uncertain about peripheral details such as who was the parent of a child on site given the passing of some 18 months since the alleged incident. In my view the Appellant provided a sufficiently detailed and credible account of the incident that resulted in his injury. 
  1. [85]
    The Appellant provided an account of falling followed by a description of Mr Godena walking over and asking "Are you okay? Are you okay?" to which the Appellant stated he replied "Yeah. All good, I think. But I was sort of still in that moment, of, "That was close". I was still rattled". Mr Johnston gave evidence that he would not normally let the customer on the hose because he was being paid to do the job along with concerns regarding health and safety. He said that he let Mr Godena operate the hose because his wrists and arms were hurting. This account is not supported by Mr Godena, who states that he began operating the hose without any reference to the Appellant’s injury. I prefer the evidence of the Appellant on the basis that no reasonable explanation was given by Mr Godena as to why he was operating the pump in place of Mr Johnston. Mr Godena’s explanation – "To make sure the concrete went where it should go" is not persuasive given that Mr Johnston was being paid to undertake that role and was an experienced operator. 
  1. [86]
    Mr Godena gave evidence that he didn’t recall an incident in which Mr Johnston fell over, and it was then put to him that he simply did not remember the incident. Mr Godena responded – "Well, something like that would stand out in my memory if there was a serious injury on site…" When asked if he would remember a less serious injury, like a fall that did not look serious and therefore he had missed it from his mind Mr Godena replied: "If it wasn’t serious, why are we here?" It seems to me that Mr Godena may not have recalled the occurrence of the incident on site primarily because a worker falling down and getting back up again in a matter of moments did not appear to Mr Godena to be a serious safety incident. 
  1. [87]
    Mr Large also seemed to be of the view that if the injury was serious enough, he would remember it. In response to a question in cross-examination about whether it was possible that the Appellant made a vague complaint, Mr Large made the following responses:

"-- No, that’s - that’s a pretty serious incident if you’ve been impaled on a star picket. I would know about that"; and

"--If he was impaled on a star picket I’m sure you’d remember it."

  1. [88]
    It is clear that the Appellant's evidence is that he fell on outstretched hands in order to avoid being impaled on a star picket. At no point in the process has the Appellant suggested that he was impaled on a star picket. I accept the sincerity of Mr Large’s evidence with respect to a potential injury involving impalement on a star picket. I have no doubt that he would indeed remember if he was told that an employee was impaled at his work site, however the alleged incident in this matter was far less dramatic and so presumably far less memorable. 
  1. [89]
    The fact that the Appellant’s injury was a less severe injury to his wrists indicates, along with Mr Large’s understandably vague recollection of the conversations occurring over 18 months prior, that a brief conversation in which the Appellant mentioned falling onto his wrists may have not been recalled by Mr Large. 
  1. [90]
    At paragraph 5 of Mr Godena’s statutory declaration provided to WorkCover during the investigation of the incident, Mr Godena stated – 

"At no stage during the concrete pour did I, or anyone else on the site, witness Adam Johnston trip or fall at any time" and "at no time during the pour did Adam Johnston ever approach me seeking my assistance because of an injury". 

  1. [91]
    I note that the Appellant did not state that he approached Mr Godena seeking assistance - he stated that Mr Godena walked over to him and provided assistance. Mr Godena does not disagree that he did assist Mr Johnston with operating the pumping hose, however the reason given for this assistance is contested. 
  1. [92]
    The Appellant gave evidence that Mr Godena operated the hose because his wrists and arms were still hurting – "Shane said to me - he said, "I’ll jump on the hose".[26] In a concession against his interests, the Appellant said that he couldn’t recall whether he told Mr Godena what happened and how he came to fall.[27] The Appellant said that he was sure he told Mr Godena he had hurt his wrists because, he assumed, that is why Mr Godena operated the pump hose.[28]
  1. [93]
    The Appellant gave evidence that he contacted Mr Jorgensen to assist with mechanical issues that had prevented him from driving the truck from the site back to the Employer.  The Appellant stated that when Mr Jorgensen came to hook the truck up after getting air into the tank he told him about the injury:

"We hooked the truck up immediately to get the air going into the - into the tank, and then we were discussing and I - and I told him that I had a close call, and I nearly put a star picket through my chest, and banged my wrists up, and I told him it was a close call."

  1. [94]
    Mr Jorgensen stated that he attended the site late in the afternoon on 5 October 2018. This evidence is consistent with a screenshot of the text messages between the Appellant and Mr Jorgensen (Exhibit 5). Mr Jorgensen gave evidence consistent with the account provided by the Appellant. Mr Large, who admitted being telephoned on the date of accident by Mr Jorgensen, denied that Mr Jorgensen attended upon site. Mr Godena gave evidence that he recalled another worker coming to the site to assist the Appellant following mechanical trouble with his truck. I accept that Mr Jorgensen attended the site based on the evidence of the Appellant, Mr Jorgensen and Mr Godena along with the text messages. 
  1. [95]
    Whilst I note that Mr Jorgensen recalled that the Appellant may have had a bandaged hand despite this not supported by any other evidence, I do not consider this to have significantly diminished Mr Jorgenson’s credibility. Having observed Mr Jorgensen give evidence, I found him to be an honest witness lending credence to the evidence given by the Appellant. 
  1. [96]
    The Appellant made appropriate concessions with respect to the details of his conversations with Mr Jorgenson, Mr Large, Ms Mason, Mr Short and Mr Loukaras. He conceded that he could not recall the exact words spoken in the conversations with each witness however generally recalled that the incident leading to his wrist injury was discussed.  
  1. [97]
    I accept that Ms Mason, Mr Loukaras and Mr Short did not witness the incident and so could not give any direct evidence as to whether the incident occurred as a matter of fact. On this basis, along with the fact that these witnesses were friends and acquaintances of the Appellant and undoubtedly motivated to assist the Appellant, I do not place significant weight upon their evidence. I do however consider that the evidence provided by each was clear and limited to that which they recalled from conversations with the Appellant with respect to the incident. 
  1. [98]
    The evidence of Mr Whalen served primarily to confirm that he did not witness the incident and nor was it reported to him. This is consistent with the evidence given by the Appellant, who did not indicate that Mr Whalen witnessed his fall. If the suggested circumstances of the incident were more dramatic, this evidence would be of more value. However, the Appellant’s description of the incident being a simple fall suggests that it is unremarkable that Mr Whalen was not aware of the incident.
  1. [99]
    Mr Large’s evidence that the Appellant worked multiple shifts following 5 October 2018 was not disputed. The Appellant however did not submit that the injury was of such severity that he could not drive the truck or perform his duties over subsequent days. The Appellant appeared to me to be stoic in nature and gave no indication that his injury was so severe that he could not continue to perform his role beyond the initial period following the fall. 
  1. [100]
    The Appellant gave evidence that Mr Large was not on site on the day in question, despite  Mr Large's evidence that he attended the site on that day. Mr Large had not informed WorkCover or the Workers’ Compensation Regulator that he was on site that day despite having a number of opportunities to do so throughout the investigation and review process. The Appellant gave clear evidence that Mr Large was not on site at the time indicated and  Mr Godena did not state that Mr Large was on site. Mr Large conceded that he had not previously informed WorkCover or the Regulator that he had been on site on 5 October 2018 when asked by WorkCover to identify potential witnesses to the alleged incident. He said that he would have mentioned this if he had been asked.[29]
  1. [101]
    I note that correspondence from liability consultants indicates that Mr Large suggested that he was not on site on the day of the alleged accident. A letter from G.Hughes & Associates Liability Consultants dated 15 May 2019 to Vero Insurance (Exhibit 11), contains the following statement:

"Shane Large, director of Large Concrete Pumping Pty Ltd, informed that the Claimant attended the subject site alone on the day of the alleged accident and would have operated both the pump and hose which is common practice on residential jobs." [my emphasis]

  1. [102]
    I approach the evidence of Mr Large with caution on the basis that neither party was made aware of his assertion that he was on site until the first day of the hearing of this appeal. 

This was despite Mr Large having a number of phone conversations with WorkCover during the investigation of the claim, both at his instigation and in response to WorkCover queries, and at no stage did Mr Large suggest that he was on site soon after the incident was alleged to have happened. I accept Mr Large’s evidence that he did not see the alleged incident and therefore could not have been a witness, however this does not satisfactorily explain why he did not tell WorkCover that he was on site within a short period of the alleged incident. Mr Large's assertion at the hearing that he was on the site despite not revealing this fact previously causes me to question the reliability of Mr Large’s evidence.

  1. [103]
    With respect to the delay in seeking medical attention, I have not drawn an adverse inference from the Appellant’s delay in seeking medical attention. I find it entirely plausible that someone in the Appellant’s position as a casual worker in the construction industry did not immediately report an injury on the basis that the injury may rectify itself. The Appellant’s evidence did not suggest that the injury was so severe that he could not continue to work, beyond the immediate period following the incident, as evidenced by his return to work over subsequent days.  
  1. [104]
    With respect to the Appellant discharging the onus, I note the decision MacArthur v WorkCover Queensland[30] in which President Hall outlined the following:

"The process of determining a matter on the balance of probabilities is neither a sterile exercise in mathematics nor a mechanic 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 McGuiness (2000) 48 NSWLR 262 at para 136 per Spigelman CJ." 

  1. [105]
    Based on the evidence before me, I am persuaded that on the balance of probabilities it is more likely than not that the Appellant fell onto his outstretched hands at the worksite on 5 October 2018 after his boot became caught in a star picket.

Did the fall cause Mr Johnston’s injury?

  1. [106]
    Dr Ho's medical notes of 5 November 2018 note the following:

WORKCOVER

Week 4 since injury

Need MRI ref to physio

aim to refer to ortho in view of chronicity

both wrist intermittent locking up

  1. [107]
    Dr Ho gave evidence that the injury had been caused by the Appellant's fall at work, and although his medical notes of 5 November 2018 reflect this view, Dr Ho concedes that he did not make a note of this in his notes on 30 October 2018.  No evidence was presented indicating any other likely cause of Mr Johnston’s wrist injury. The medical description of a traumatic event consistent with falling on outstretched hands is consistent with the Appellant's account of the fall on 5 October 2019 at work. On the basis that I found the Appellant to be an honest witness along with generally supportive medical evidence, it would be unreasonable not to accept that his wrist injury was the result of this fall. 

Conclusion

  1. [108]
    The issue for determination is whether the Appellant suffered a personal injury within the meaning of that term in s 32 of the Act. The Respondent conceded that the Appellant was a worker at the relevant time and that he suffered a wrist injury.  The issue is whether the wrist injury arose out of, or in the course of, the Appellant’s employment with the Employer and whether that employment was the significant contributing factor to the injury. 
  1. [109]
    On the evidence before the Commission, I have formed the view that Mr Johnston has discharged the onus and has shown, on the balance of probabilities, that:
  • He suffered a bilateral wrist injury on 5 October 2018;
  • That the wrist injury arose out of, or in the course of, his employment with the Employer in that Mr Johnston tripped over a star picket and fell on his hands which were outstretched to avoid falling whilst undertaking concrete pouring duties; and
  • As Mr Johnston was performing his duties in arranging the pump to pour concrete on the worksite when he fell, his employment was a significant contributing factor to his injury.

Costs

  1. [110]
    The hearing of this appeal was scheduled for 28 and 29 January 2020. The Respondent requested an adjournment to obtain the evidence of Mr Godena, with the appeal continuing for a third day on 18 February 2020. The Appellant submits that the costs of the adjournment should be met by the Regulator on the basis that they should have been aware that Mr Godena had not been served with Notice to Attend following a conversation with him on 6 January 2020. The Regulator submits that the costs should be considered costs of and incidental to the appeal given that the Mr Godena originally appeared on the Appellant's witness list. On the basis that the appeal is allowed, the outcome of the parties' position with respect to the costs of the adjournment is in essence the same. I find that the costs of the adjournment should be considered costs of and incidental to the appeal. 

Order

  1. [111]
    I allow the appeal and set aside the Workers’ Compensation Regulator decision dated 9 April 2019. I determine that the Appellant’s claim is one for acceptance. I further order that the Respondent pay the Appellant’s costs of and incidental to the appeal. 
  1. [112]
    I order accordingly. 

Footnotes

[1]Rossmuller v Q-COMP (C/2009/36) .

[2]McDonald v Q-COMP (2008) 188 QGIG 180; Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301.

[3]Rossmuller v Q-COMP (C/2009/36).

[4]  T1-29 L 35-40.

[5]  T1-28 L 4-44.

[6]  T1-28 L4-25.

[7]  T1-32 L 13.

[8]  T1-34 L 46.

[9]  T1-67 L 47; T1-62 L 4.

[10]  T1-61 L 46; T1-62 L 1-4.

[11]  T1-57 L 35.

[12]  T1-57 L 41-42.

[13]  T1-45 L 6-18.

[14]  T1-47 L 40-45.

[15]  T1-48 L 9-11.

[16]  T2-11 L 43,46.

[17]  T2-12 L 8.

[18]  T2-18 L 39; T2-19 L 21.

[19]  T2-23 L 39-45.

[20]  T2-22 L 34).

[21]  T3-5 L 5.

[22]  T3-7 L 9.

[23]  T3-17 L 19.

[24]  T1-14 L 2.

[25]  T2-34 L 42.

[26]  T1-9 L 29-30.

[27]  T1-19 L 1-10.

[28]  T1-19 L 23-25.

[29]  T-2-15 L 23-28.

[30]MacArthur v WorkCover Queensland (2001) 167 QGIG 100

Close

Editorial Notes

  • Published Case Name:

    Johnston v Workers' Compensation Regulator

  • Shortened Case Name:

    Johnston v Workers' Compensation Regulator

  • MNC:

    [2020] QIRC 105

  • Court:

    QIRC

  • Judge(s):

    Member IC Power

  • Date:

    14 Jul 2020

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
MacArthur v WorkCover Queensland (2001) 167 QGIG 100
2 citations
Jump To
Cite 1 - (2001) 167 QGIG 100
Cite 2 - (2001) 167 QGIG 100
Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301
2 citations
Jump To
Cite 1 - (2006) 181 QGIG 301
Cite 2 - (2006) 181 QGIG 301
Rossmuller v Q-COMP [2010] ICQ 4
3 citations
Jump To
Cite 1 - [2010] ICQ 4
Cite 2 - [2010] ICQ 4
Cite 3 - [2010] ICQ 4
Seltsam Pty Ltd v McGuiness (2000) 48 NSWLR 262
1 citation
Jump To
Cite 1 - (2000) 48 NSWLR 262
Stephen Horace MacDonald v Q-COMP (2) (2008) 188 QGIG 180
2 citations
Jump To
Cite 1 - (2008) 188 QGIG 180
Cite 2 - (2008) 188 QGIG 180

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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