Walsh v Workers' Compensation Regulator
[2021] QIRC 165
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- Unreported Judgment
- Walsh v Workers' Compensation Regulator[2021] QIRC 165
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Walsh v Workers' Compensation Regulator[2021] QIRC 165
Walsh v Workers' Compensation Regulator[2021] QIRC 165
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Walsh v Workers' Compensation Regulator [2021] QIRC 165 |
PARTIES: | Walsh, Jeffrey (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO: | WC/2017/199 |
PROCEEDING: | Appeal against decision of Workers' Compensation Regulator |
DELIVERED ON: | 14 May 2021 |
HEARING DATES: | 8, 9 September 2020 |
DATES OF WRITTEN SUBMISSIONS: | Appellant's submissions: 8 December 2020 Respondent's submissions: 6 January 2021 Appellant's submissions in reply: 19 February 2021 |
MEMBER: | Power IC |
HEARD AT: | Brisbane |
ORDER: | 1. The appeal is dismissed. 2. The decision of the Workers' Compensation Regulator is confirmed. 3. The Appellant is to pay the Respondent's costs of and incidental to this appeal. |
CATCHWORDS: | WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – PHYSICAL INJURY – worker employed as an in home support worker – suffered a musculoskeletal injury to lumbar spine – whether injury arose out of or in the course of employment |
LEGISLATION: | Workers' Compensation and Rehabilitation Act 2003 (Qld), ss 11 and 32 |
CASES: | Avis v WorkCover Queensland (2000) 165 QGIG 788 Briffa v Q-COMP (2005) 180 QGIG 70 Comcare v PVYW (2013) 250 CLR 246 Jones v Dunkel (1959) 101 CLR 298 MacArthur v WorkCover Queensland (2001) 167 QGIG 100 McDonald v Q-COMP (No. 2) (2008) 188 QGIG 180 Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301 Rossmuller v Q-COMP [2010] ICQ 4 Souz v CC Pty Ltd [2018] QSC 36 Swan v Monash Law Book Co-operative [2013] VSC 326 Waugh v Simon Blackwood (Workers' Compensation Regulator) & anor [2015] ICQ 028 Yousif v Workers' Compensation Regulator [2017] ICQ 004 |
APPEARANCES: | Ms J. Sorbello of Counsel, instructed by Morton & Morton Solicitors, for the Appellant Mr J. Wiltshire of Counsel, instructed directly by the Respondent |
Reasons for Decision
Introduction
- [1]Mr Jeffrey Walsh ('the Appellant') was employed as an in-home support worker for Ozcare ('the Employer') when he made an application on 2 May 2017 to WorkCover Queensland ('WorkCover') seeking workers' compensation benefits for a back injury.
- [2]The Appellant'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 (Qld) ('the Act'). On review, the Worker's Compensation Regulator ('the Regulator'; 'the Respondent') confirmed WorkCover's decision ('the decision'). Mr Wash appeals this decision.
Submissions
- [3]The Regulator submits that:
- there is insufficient evidence that the Appellant has suffered a personal injury;
- if the Appellant did suffer a personal injury, the injury did not arise out of, or in the course of, the Appellant's employment; and
- the Appellant's employment was not a significant contributing factor to any injury.
- [4]The Appellant submits that:
- he was allocated an increased workload and his injury was caused by repetitively bending and straining to perform vacuuming duties with poorly designed vacuum cleaners from mid-2016 until April 2017 at work;
- this injury arose out of, or in the course of, his employment and his employment was a significant contributing factor to those injuries; and
- the Appellant has suffered a personal injury, namely a musculoskeletal injury to the lumbar spine.
- [5]There is no dispute between the parties that the Appellant was a 'worker' within the meaning of s 11 of the Act.
Issue for determination
- [6]The issue to be determined is whether the Appellant suffered a personal injury within the meaning of s 32 of the Act. Section 32 of the Act provides:
32 Meaning of injury
- (1)An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
…
- [7]
- [8]The Appellant carries the burden of proof and must prove, on the balance of probabilities,[3] 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.
- [9]In my view, the evidence has not met the standard required to allow the Appellant to discharge his onus and so, on the balance of probabilities, I find that the Appellant's injury did not arise out of, or in the course of, his employment and his employment was not a significant contributing factor to his injury. The Appellant has therefore not sustained an injury within the meaning of the term pursuant to s 32 of the Act.
- [10]My reasons follow.
Injury sustained
- [11]The Appellant's duties involved assisting disabled and elderly people in their homes with domestic tasks such as cleaning, laundry, meal preparation, social support, shopping and transport. These duties are outlined in each client's care and support plans.
- [12]The Appellant's evidence was that he began to feel pain in his back following an increase in work hours in mid-2016 and that following a shift on 15 March 2017, he felt a significant increase in this pain. He attended upon physiotherapist, Ms Rebecca Andrews, on the same day as an appointment had been pre-arranged.
- [13]Dr Scott Campbell, Neurosurgeon, provided a report dated 31 July 2018 and was called by the Appellant to give oral evidence. Dr Campbell's evidence was that the Appellant suffered from a musculoskeletal injury to his lumbar spine. After reviewing the Appellant's radiology, Dr Campbell stated that it was unlikely that there has ever been a fracture of the T11 or T12 region and whilst there is the existence of Scheuermann's disease, it was most likely longstanding and asymptomatic and would have likely remained asymptomatic regardless of the Appellant's current injury.
- [14]With reference to the lack of a specific diagnosis relating to the Appellant's symptoms, Dr Campbell indicated that this was not dissimilar to the "vast majority of patients who come in with neck pain and lower back pain in which the diagnosis is non-specific".[4]
- [15]Dr Peter Steadman, Orthopaedic Surgeon, provided a report dated 24 July 2019 and was called by the Respondent to give oral evidence. Dr Steadman stated that it was difficult to give a diagnosis given the non-anatomical nature of the Appellant's condition, however, accepted that a lack of a specific diagnosis does not indicate an absence of pain. Dr Steadman notes that Dr Campbell's diagnosis of a musculoligamentous injury is one which he uses to describe people with back pain, but it is not based on any specific evidence from the radiology or examination and merely reflects a subjective complaint.
- [16]The Appellant submitted a compilation of medical records ('the Medical Records Bundle') that were tendered by consent by the parties on the basis that they represent the records of the practices identified and are not evidence of any opinions as expressed in the documents. The Appellant submitted that the contemporaneous medical entries corroborate his evidence in respect to the onset of his symptoms.
- [17]The Medical Records Bundle confirms that the Appellant attended upon Dr Adam Ebringer, General Practitioner, on multiple occasions commencing 7 February 2017 and Ms Andrews commencing 15 March 2017, seeking treatment for pain.
- [18]In consideration of the medical evidence in total, I am persuaded that the numerous visits to Dr Ebringer and Ms Andrews for treatment along with Dr Campbell's report supports the conclusion that the Appellant had sustained a personal injury in the form of a musculoskeletal injury to his lumbar spine.
The Appellant's contentions
- [19]The Appellant's Statement of Facts and Contentions (SOFC) states the following:
…
- His duties involved cleaning disabled and elderly people's homes, 40 plus hours per week.
- The Appellant was required to use a vacuum cleaner that was poorly ergonomically designed for repetitive sue [sic]
- From mid 2016 the appellant was allocated an increased workload which involved vacuuming for four to six hours per day.
…
Use of vacuum cleaner
- [20]The Appellant's evidence was that his duties for each client generally included vacuuming the house, cleaning the shower and toilets, and mopping. He would attend up to five client's house per day, spending approximately 90 minutes at each house with occasions of 45 minutes and occasionally two hours.
- [21]The Appellant stated that he developed a practice where he would allocate two-thirds of his time to vacuuming the house and the remainder to perform the other cleaning duties. The Appellant submits that a lot of vacuuming was done bending over and bending forward and that he was instructed to use two hands on the wand of the vacuum cleaner.
- [22]The Appellant submits that he was required to use poorly ergonomically designed vacuum cleaners and consequently, had to bend over to use them properly. The Appellant gave evidence that there was a high proportion of older, heavier vacuum cleaners in the clients' residences and that a significant proportion had short wands which he was unable to adjust to his height.
- [23]In response, the Respondent submits that there was an onus on the Appellant to prove the way in which the vacuum cleaners he used were poorly ergonomically designed in a manner which contributed to his injury. I am not required to make a finding as to whether the vacuum cleaners were heavy, old or appropriately designed. I simply have to be satisfied that the Appellant's injury arose out of, or in the course of, his duties, which the Appellant submits was primarily vacuuming.
- [24]Even if the Respondent's submission that "most vacuum cleaners sold in Australian in the last 15 years are not exceptionally heavy, are on wheels and have adjustable length wands", was accepted, this does not result in a conclusion that the Appellant's injury did not arise out of his employment. The act of vacuum cleaning around and under furniture in a home would reasonably require the Appellant's back to bend at various points, regardless of the design of the vacuum cleaner or length of the wand.
- [25]The Appellant commissioned a report from Mr Scott Boyd, Senior Engineering Consultant, to assess the risk factors associated with the Appellant's vacuuming duties. Mr Boyd provided a report dated 11 September 2019 and a supplementary report dated 7 September 2020.[5]
- [26]The report of Mr Boyd dated 11 September 2019 includes a photograph of the Appellant demonstrating the posture required when using some of the older, heavier vacuum cleaners. Upon assessment, Mr Boyd provides the following conclusion in his supplementary report:
Based on the NIOSH table above and the questionnaire results discussed in the author's previous report, it is the author's opinion that the postures adopted, forces, movements and durations of vacuum cleaner use throughout Mr Walsh's work are consistent with an increased risk of musculoskeletal disorder to the back.
- [27]The Appellant gave evidence that he received training from the Employer to use two hands while vacuuming, as shown in the photo in the report, however, this is disputed by the Respondent. Whether the Appellant used two hands to use the vacuum cleaner because he was trained to do so or because that was his preference is not a question that is required to be answered for the purposes of determining whether his injury arose out of, or in the course of, his employment.
- [28]I accept the evidence of Mr Boyd as noting that vacuuming in a manner described by the Appellant is consistent with an increased risk of musculoskeletal injury to the back in a general sense. Greater weight, however, is apportioned to the evidence of the medical witnesses who have examined the Appellant to determine if this risk has manifested in an injury arising out of, or in the course of, his employment.
Claim regarding increase in hours worked
- [29]In the SOFC, the Appellant submitted that his duties involved cleaning elderly people's homes 40 plus hours per week and from mid-2016, he was allocated an increased workload which involved vacuuming four to six hours per day.
- [30]The Respondent submits that the Appellant's employment guaranteed a minimum of 24 hours of work per fortnight and on average the Appellant worked no more than 28.11 hours per week.
- [31]The Employer's record of the Appellant's in-home client visits from 1 July 2016 to 17 April 2017 was admitted into evidence. The Respondent submitted an analysis of the data by reference to weeks, with the analysis showing that throughout the 41 week period the Appellant worked 5 days most weeks but only four days on 11 weeks; four weeks where he only worked three days; two weeks where he only worked two days and two weeks where he did not work at all.[6]
- [32]The Employer's data shows the Appellant worked on average 28.11 hours per week over that period. This total includes travel time and breaks.[7] In cross-examination, the Appellant did not accept the figure of approximately 28 hours per week. The Appellant stated that there would also have been occasions where clients passed away or visits were otherwise cancelled, in which case he would have been called into the office to perform paperwork or cleaning of the office.[8] This is unlikely to have substantially increased the overall average weekly hours worked.
- [33]The Respondent's analysis of the Employer's records for the period 1 July 2016 to 17 April 2017 also indicates that the average amount of time the Appellant spent performing domestic assistance for clients per shift was 4.5 hours.[9]
- [34]The Appellant submitted, as part of his closing submissions, a document correlating the OzCare Care Plans[10] with the OzCare Activity Reports[11] for the period between 1 March 2017 and 7 April 2017, submitting that this period is representative of the period over which his injury was sustained. The Appellant, however, is constrained by the contents of his SOFC, which outline the basis of his claim, with the relevant period specified as being from mid-2016 to April 2017. In Yousif v Workers' Compensation Regulator,[12] President Martin made the following statement regarding the importance of adherence with the SOFC in this jurisdiction:
This is particularly important in appeals under the Act where the nature of injuries, their cause, and the times at which they were suffered are essential to the resolution of an appeal.[13]
- [35]The Respondent submits, and I accept, that the focus of the case cannot change from the one submitted in the SOFC, to effectively cherry pick a time period thereafter which may be more favourable to the Appellant's case.
- [36]I note that even if the Appellant's submission of the document relating to the period 1 March 2017 to 7 April 2017 were accepted as representative of the entire period, the number of hours performing domestic assistance is estimated as 4.63 hours per day in total during this period, including a variety of duties. The Appellant's evidence that he spent two-thirds of his time vacuuming would indicate that the maximum time spent vacuuming was approximately three hours in total per day rather than the four to six hours as claimed. Further, the documentary evidence does not support the claim that the Appellant's duties involved working 40 plus hours per week and vacuuming four to six hours per day.
- [37]With respect to the claim that the Appellant's hours had increased from mid-2016, Ms Penny Cooper, Branch Manager for Ozcare's Fraser Coast region, gave evidence for the Respondent that she was not aware of any changes in the Employer's operations around the middle of 2016 which would have led to an increase in the Appellant's hours or the proportion of time that he spent using a vacuum cleaner.
- [38]Ms Crystal Hull, an assistant coordinator scheduler employed by Ozcare, and second in charge of the branch, gave evidence for the Respondent that her responsibilities included rostering and allocating jobs to the Appellant. Ms Hull stated she was not aware of any change in demand for the Appellant's services after July 2016.
- [39]No documentary evidence was provided from either party to confirm the Appellant's work hours in the year prior to July 2016 in order to determine whether there was an increase in his work hours as submitted in the Appellant's SOFC. The Appellant submits that a Jones v Dunkel[14] inference is available on the basis that the Respondent did not request the Employer's witness, Ms Cooper or Ms Hull, to prepare an activity report to compare the two time periods because it would not have advanced the Respondent's case.
- [40]In my view, no such inference can be made as the onus lies on the Appellant to produce evidence of his work activities to support the contention that his work hours had increased from July 2016. This material was presumably obtainable through a notice of non-party disclosure. The absence of such documentary evidence requires me to consider the oral evidence of the Appellant that his workload had increased and the evidence of Ms Cooper and Ms Hull who gave evidence that they could not recall any increase in workload. On the basis that no documentary evidence was presented to support the Appellant's claim and two witnesses who were involved with the allocation of work hours did not support the claim, I am of the view that the claim of an increase in hours from mid-2016 cannot be supported. One consequence of inaccurately assessing the Appellant's hours is that this information then formed the basis of subsequent medical evidence. This is discussed further below.
Mattress incident
- [41]An incident unrelated to the Appellant's employment occurred on 17 April 2017, which involved the Appellant assisting his son to move belongings to another house. The Appellant was working up until this date but decompensated following this incident and did not return to his employment.
- [42]Following this incident, the Queensland Ambulance Service was called to transport the Appellant to the Hervey Bay Hospital.
- [43]The notes in the Hervey Bay Hospital medical records conflict with the Appellant's oral evidence and the information provided to Dr Campbell and Dr Steadman.
- [44]The hospital records of the matter note the following:
Had been moving out today.
Started with mattress as cautious about lifting heavy things, dragging mattress with son. Went to lift mattress up, heard a crack and felt pain. Went to ground.[15]
- [45]The Appellant's evidence at hearing was as follows:
I was walking into the garage. My son was dragging a little foam mattress out and I told him not to drag it. And I reached out to grab it and, as I went to reach out, my back locked up and I collapsed and they rang an ambulance.[16]
- [46]Dr Steadman records the Appellant as describing the incident as follows:
… there was an incident involving a mattress and he says that he did not even grab the mattress but he says it was a "pissant" mattress and his son was dragging the mattress out so he reached out to it when it all locked up.[17]
- [47]I cannot reasonably accept the Appellant's submission that the evidence was largely consistent with the medical records identified. The statement that the Appellant had been "dragging mattress" and "went to lift mattress up" is not consistent with "he did not even grab the mattress" and "reached out to grab it".
- [48]I note the Appellant's reference to Swan v Monash Law Book Co-operative,[18] and Souz v CC Pty Ltd,[19] with respect to views on the context to be considered when examining medical records. I accept that what is contained within medical records depends on the questions asked and the patient's understanding of what information was relevant to convey. In these circumstances, however, the issue is not the omission of relevant information or the fact that the 'medical system' was unfamiliar to the Appellant. The discrepancy relates to the description of the event in which the Appellant was involved. The description of 'dragging mattress' is not a medical term and not one likely to be misunderstood by the Appellant.
- [49]I am satisfied that the hospital notes provide the most reliable account of the incident involving the mattress given that they were taken at the time the Appellant was admitted. The Appellant did not return to the workplace after this incident and subsequently submitted a workers' compensation application on 2 May 2017.
Medical evidence
- [50]The Appellant first reported symptoms on 7 February 2017 to Dr Ebringer. These symptoms were described as "getting a lot of aches and pains and pins and needles in arms and legs".[20]
- [51]On 17 February 2017, Dr Ebringer's notes record symptoms of pain radiating from the right flank around the abdomen.[21]
- [52]On 3 March 2017, Dr Ebringer noted a CT scan demonstrated a 30% wage fracture, which Dr Campbell considered was long-standing asymptomatic Scheuermann's disease.[22]
- [53]The Appellant presented to Ms Andrews on 15 March 2017, with the records indicating that he reported "[g]lobal sharp pains throughout body for many months. Global back pain and tightness".[23] The Appellant visited Ms Andrews again on 24 and 29 March 2017 and 5 April 2017, complaining of neck and/or thoracic pain.[24]
- [54]As previously noted, on 17 April 2017, the Appellant was transported by ambulance to the Hervey Bay hospital, following an incident involving the moving of a mattress.
- [55]The Appellant attended upon Dr Shanmugam on 21 April and 20 August and 2017. The first time that his back symptoms were noted as being work-related was at the first of these appointments.
- [56]The Appellant attended upon Dr Ebringer on 6 June 2017 with these notes recording the first mention of the symptoms relating to vacuuming at work.
- [57]Dr Campbell examined the Appellant on 31 July 2018 and provided a report stating the following:
The work related diagnosis is that of:
- Musculo-skeletal injury lumbar spine
It is likely Mr Walsh's lower back pain symptoms arose over a period of time following an increased workload from mid 2016 as opposed to a specific event.
- [58]Dr Steadman examined the Appellant on 17 July 2019 and provided a report dated 24 July 2019, stating that:
He reportedly suffers from whole body pain and pins and needles with "zingers" or electric shocks that occur hundreds of times per day.
…
It seems that his disease process is not fitting into a pattern. Given the extensive and non-anatomical nature of the condition it is difficult to advise what his complaint is let alone whether this represents a significant consequence of a work injury. The description of the onset and subsequent events and the current symptoms would suggest no relationship.
Consideration
Did the Appellant sustain an injury?
- [59]The first question for determination is whether the Appellant has sustained an injury. As outlined in paragraph [18], I am satisfied that the Appellant has sustained a musculoskeletal injury to his lumbar spine.
Did the injury arise out of, or in the course of, the Appellant's employment?
- [60]Section 32(1) of the Act requires consideration of whether the injury arose out of, or in the course of, the worker's employment.
- [61]The term 'arising out of, or in the course of, employment' was considered in Avis v WorkCover Queensland,[25] in which President Hall said:
… the phrase 'arising out of' whilst involving some causal or consequential relationship between the employment and the injury, does not require that direct or proximate relationship which would be necessary if the phrase used were 'caused by'.
- [62]
[53] … In Kavanagh v The Commonwealth, Dixon CJ said that 'no direct … causal connection … is proposed as an element necessary to satisfy the conception of an injury by accident arising in the course of the employment but only an association' with the employment.
[54] Dixon CJ expressed that association in two ways. In a positive sense it might be said that, had it not been for the employment, the injury would not have been sustained. Put negatively, and perhaps more usefully for present purposes, it requires that 'the injury by accident must not be one which occurred independently of the employment and its incidents'.
- [63]The medical records confirm that the Appellant attended upon Dr Ebringer on a number of times over the period February 2017 to June 2017 and Ms Andrews five times over the period March 2017 to April 2017. Neither Dr Ebringer nor Ms Andrews gave evidence before the Commission as to whether this pain was considered to be a consequence of the Appellant's work duties, was a result of non-work factors, or was degenerative in nature.
- [64]The Appellant's application for workers' compensation filed on 2 May 2017 states that he sustained a lower back injury on 15 March 2017 whilst undertaking vacuum cleaning at a client's residence.
- [65]The medical records mention that the Appellant's injury may be a result of vacuuming for the first time on 6 June 2017.
- [66]Dr Campbell considered the Appellant suffered from a musculoskeletal injury to his lumbar spine following an increased workload from mid-2016. Dr Campbell understood the background to the Appellant's work duties as follows:
… cleaning disabled and elderly people's homes, 40 plus hours per week. He was required to use a vacuum cleaner that was poorly ergonomically designed for repetitive use. From mid 2016 he was allocated an increased workload which involved vacuuming for vacuuming duties for four to six hours per day. He noted onset of lower back pain in late 2016 as a result of repetitively bending and straining to perform vacuuming duties. His symptoms came on whilst bending, reaching and twisting for long hours at work.[28]
(emphasis added)
- [67]Dr Campbell further noted that:
the most critical factor … is how many hours per day he is doing the vacuuming … what I've been told is four to six hours per day. So if he was still doing that, but only working a 28 hour week, then that wouldn't change my opinion to any great degree.[29]
- [68]There is no documentary evidence before the Commission that the Appellant's workload increased in mid-2016,[30] and the only evidence as to the daily hours post July 2016 is that the Appellant vacuumed for a maximum of 3.09 hours per day.
- [69]The relevance of the evidence that the number of hours were not as high as submitted by the Appellant is not only that this claim formed part of the Appellant's SOFC, but this was the background provided to Dr Campbell and subsequently, forms the basis of his medical evidence. Dr Campbell subsequently stated that even if the Appellant's hours were only 28 hours per week, he would not change his opinion on the basis that the Appellant was still vacuuming four to six hours per day. The evidence, however, indicates that the time the Appellant spent vacuuming was closer to three hours per day.
- [70]The evidence does not support the contention that the Appellant was working an increased number of hours, both overall and per shift, and as a consequence, the medical evidence given by Dr Campbell is less reliable.
- [71]Dr Campbell gave the following evidence at the hearing:
Mr Whiltshire: So if, in fact, it was the case that the evidence shows there was no substantial increase in his workload between mid-2016 and early 2017, you clearly couldn't maintain a conclusion that that was the cause of his complaints?
Dr Campbell: That is correct. If there was no change in his work practice, and he was doing the same position that he'd done since 2010, then that would make a link with the over period of time injury very unlikely.[31]
- [72]Dr Steadman notes that Dr Campbell's diagnosis of a musculoligamentous injury is one which he uses to describe people with back pain, but it is not based on any specific evidence from the radiology or examination but just reflects a subjective complaint. Dr Campbell similarly acknowledged that his diagnosis is based on the Appellant's reports of symptoms and that there was no way of linking the injury to the Appellant's work other than on the basis of the history given.
- [73]Dr Steadman provided the following opinion in his report:
Given the extensive and non-anatomical nature of the condition it is difficult to advise what his complaint is let alone whether this represents a significant consequence of a work injury. The description of the onset and subsequent events and the current symptoms would suggest no relationship.[32]
- [74]With respect to Dr Steadman's opinion that the Appellant did not sustain a work related injury, he elaborated:
…I can't see one anatomically on the radiology … in other words, I can't see any features that suggest that there's an injury that the vacuuming has caused as a specific medical diagnosis, and I guess that leads me back to Dr Campbell's position on it being a musculoligamentous injury … it's a subjective sort of complaint.[33]
- [75]The Appellant submits that Dr Steadman conceded that the pain the Appellant experienced throughout February, March and April 2017 was as a result of his work activities when asked to assume the following:
- athe pain the Appellant experienced came on during the course of his employment activities, in particular, vacuuming;
- bthe Appellant sought treatment for that pain in February 2017;
- cduring March 2017, the Appellant continued to work with his back strapped but in pain;
- don 17 April 2017, when the Appellant reached out his arms, his back locked and he fell to the ground in pain.
- [76]The difficulty with the assumptions given to Dr Steadman is that the description of the incident on 17 April 2017 is contested. As indicated at [49], I accept the version of the incident described in the contemporaneous notes taken at the Hervey Bay Hospital as the correct record of the incident. This was not the description of the incident that was put to Dr Steadman, with the description of the Appellant having 'reached out his arms' significantly downplaying the Appellant's actions. This undermines any concession said to have been made by Dr Steadman.
- [77]As indicated in paragraph [28], I give greater weight to the evidence of the medical witnesses who have examined the Appellant than to the evidence of Mr Boyd. I also note that Mr Boyd's opinion was predicated on the exaggerated number of hours the Appellant claimed to have worked per week and time spent vacuuming per day. As these hours did not reflect the Appellant's actual hours of work, Mr Boyd's conclusion is less reliable.
- [78]The Appellant did not report the alleged work-related injury until after he was taken to hospital following the mattress incident on 17 April 2017. It is difficult to determine the impact of the mattress incident given that the Appellant was working prior to the incident, decompensated following the incident, and then filed an application for workers' compensation on 2 May 2017.
- [79]Having considered the medical evidence, I am not persuaded that it supports the conclusion that the Appellant's injury arose out of, or in the course of, his employment. The medical history indicated that the Appellant attended Dr Ebringer and Ms Andrews in the months prior to the mattress incident for a range of issues, however, the notes do not reflect that his pain was related to his vacuuming work, or in fact any of his domestic duties. The only reference in medical notes to the injury being associated with his work duties was made a number of days following the mattress incident and the first reference vacuuming was in the note of Dr Ebringer on 6 June 2017, some five weeks after the Appellant had decompensated following the mattress incident. Dr Steadman gave evidence that there was in fact no injury and gave evidence that there was no relationship between the Appellant's condition and his employment.
- [80]Dr Campbell gave evidence that he was of the view that the Appellant's injury did arise out of his employment, however, confirmed this was less likely if there had been no increase to the Appellant's hours and he was not vacuuming four to six hours per day as claimed.
- [81]The Appellant bears the onus of proving that he has sustained an injury within the meaning of the Act. Satisfaction of this onus on the balance of probabilities requires more than a mere possibility that particular events occurred.[34] The difficulty with this matter is that whilst it is possible that the Appellant's injury arose out of, or in the course of, his employment, there is insufficient reliable evidence to allow me to make that conclusion. The only medical report that supports the conclusion that the injury arose out of his employment was unreliable due to incorrect assumptions regarding the number of hours worked per week, the number of hours spent vacuuming each shift and an increase of work hours from 2016. This report was also based upon a minimisation of a non-work incident involving a mattress that resulted in the Appellant's decompensation. Relevantly, the Appellant's work duties were not noted as related to the injury in the medical notes until after the mattress incident had occurred.
- [82]The Appellant has not met the onus of proving that his injury arose out of, or in the course of, his employment as contended in his SOFC. It follows that there was insufficient evidence to conclude that the Appellant's employment was a significant contributing factor to the injury.
Conclusion
- [83]The Appellant was a diligent and competent employee of OzCare, as evidenced by the consistent positive feedback from his clients. The evidence of his managers confirmed that he was well liked and received good feedback from clients. His evidence indicated that he was someone who took significant pride in his work. Ms Cooper and Ms Hull from OzCare gave evidence indicating that the Appellant did an excellent job.
- [84]It is unfortunate that the Appellant's condition has resulted in his incapacity to work in a job in which he had performed to such a high standard. Regrettably for the Appellant, however, the evidence does not support a conclusion that his injury arose out of, or in the course of, his employment.
- [85]In consideration of the evidence before the Commission, I have determined that on the balance of probabilities:
- the Appellant suffered a musculoskeletal injury to his lumbar spine;
- the injury did not arise out of, or in the course of, the Appellant's employment; and
- the Appellant's employment was not a significant contributing factor to his injury.
Order
- [86]I make the following Orders:
- The appeal is dismissed.
- The decision of the Workers' Compensation Regulator is confirmed.
- The Appellant is to pay the Respondent's costs of and incidental to this appeal.
Footnotes
[1] Rossmuller v Q-COMP [2010] ICQ 4 ('Rossmuller').
[2] McDonald v Q-COMP (No. 2) (2008) 188 QGIG 180; Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301.
[3] Rossmuller (n 1); Briffa v Q-COMP (2005) 180 QGIG 70.
[4] T1-63, L41-42.
[5] Exhibit 2 and Exhibit 3, respectively.
[6] This is presumably due to leave, as confirmed by the Appellant; T1-21, L46.
[7] The calculation excludes the two weeks of zero hours.
[8] T1-25, L46-46 to T1-26, L1-18.
[9] This excludes travel time, breaks and social support rather than domestic assistance.
[10] Exhibit 6.
[11] Exhibit 7.
[12] [2017] ICQ 004.
[13] Ibid [13].
[14] (1959) 101 CLR 298, 320.
[15] Medical Records Bundle, page 35.
[16] T1-15, L35-37.
[17] Exhibit 4: Report of Dr Steadman dated 24 July 2019; T2-17, L16-19.
[18] [2013] VSC 326.
[19] [2018] QSC 36.
[20] Medical Records Bundle, page 21.
[21] Ibid page 20.
[22] Ibid pages 19-20.
[23] Ibid page 49.
[24] Ibid pages 53, 54 and 55.
[25] (2000) 165 QGIG 788.
[26] [2015] ICQ 028 [31].
[27] (2013) 250 CLR 246.
[28] Exhibit 1: Report of Dr Campbell dated 31 July 2018.
[29] T1-71, L28-31.
[30] Noting that witnesses Ms Cooper and Ms Hull also did not recall any increase in the Appellant's hours.
[31] T1-71, L13-18.
[32] Exhibit 4: Report of Dr Steadman dated 24 July 2019, page 6.
[33] T2-6, L11-19.
[34] MacArthur v WorkCover Queensland (2001) 167 QGIG 100, 101.