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Timmins v Workers' Compensation Regulator[2021] QIRC 200

Timmins v Workers' Compensation Regulator[2021] QIRC 200

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Timmins v Workers' Compensation Regulator [2021] QIRC 200

PARTIES: 

Timmins, Jeremy Peter

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2018/188

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED EX TEMPORE ON:

3 June 2021

HEARING DATE:

1, 2 & 3 June 2021

MEMBER:

Industrial Commissioner Dwyer

HEARD AT:

Hervey Bay

ORDER:

  1. The appeal is allowed; and
  1. The Respondent pay the Appellant’s costs.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION – bilateral carpal tunnel syndrome – nature of tasks repetitive – work performed over a number of years – conflicting medical opinion about causative impact of repetition alone

LEGISLATION:

Workers Compensation and Rehabilitation Act 2003 (Qld) s 32

APPEARANCES:

Ms J Sorbello of counsel, instructed by Mr A Land of Morton & Morton Solicitors for the Appellant

Ms H Blattman of counsel, instructed by Ms K Bednarek of the Workers' Compensation Regulator for the Respondent

Reasons for Decision

Delivered ex tempore on 3 June 2021

 Appeal

  1. [1]
    This is an appeal by Mr Jeremy Timmins. Mr Timmins filed his appeal on 23 October 2018, appealing a decision by the Workers' Compensation Regulator ('the Regulator'), dated the 5th of October 2018. Generally, the claim by Mr Timmins was in relation to bilateral carpal tunnel syndrome said to have arisen in the course of his employment as a process worker with his employer, Boat Harbour Fisheries.
  1. [2]
    WorkCover originally rejected Mr Timmins’s claim on the basis that his employment was not a significant contributing factor. Following an application for review, the Regulator concluded that the carpal tunnel syndrome did not arise out of or in the course of employment and that the employment was not a significant contributing factor.
  1. [3]
    In an appeal of this nature, the appellant bears the onus of proving the claim for compensation is one for acceptance on the balance of probabilities.

'Injury'

  1. [4]
    Section 32 of the Workers Compensation and Rehabilitation Act 2003 (Qld) ('the WCR Act') relevantly 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.

  1. [5]
    In this instance, the Regulator has conceded that Mr Timmins is a worker within the meaning of the WCR Act and also that he sustained a 'personal injury' within the meaning of section 32(1), namely bilateral carpal tunnel syndrome.
  1. [6]
    The question for my determination in this appeal is whether the personal injury sustained by Mr Timmins arose out of or in the course of employment and if so, whether the employment was a significant contributing factor.
  2. [7]
    In this matter, while there have been some controversial facts, the question for my determination is primarily a medical one.

Factual setting of the claim

  1. [8]
    Turning firstly to the facts and in particular, the evidence of Mr Timmins, the facts establish that Mr Timmins commenced with his employer in or about 2004. He initially worked part-time on holidays, and he did this for approximately four to five years. His work during that period included peeling scallops or shucking scallops. In late 2009, he commenced working approximately 30 hours a week on a regular basis.
  1. [9]
    I gained the impression from his evidence, and the evidence of other lay witnesses, that there was only the broadest of consistency identifiable in the work arrangements.
  1. [10]
    Mr Timmins said in his evidence that he would start at 6am usually, but that the finish time could vary. A shift could be as long as 10 hours and as short as five hours and that hours would depend on the catch and the demand. While a number of the lay witnesses gave slightly differing evidence with respect to start times and finish times, and to lengths of shifts, I did not consider this to be controversial. The uncertainty of their working arrangements is, in my experience, not unusual in the seafood industry as it is in other seasonal industries.
  1. [11]
    It seems overall, on the evidence, that it is uncontroversial that Mr Timmins worked an average of 30 hours per week, approximately five days per week. The average was continued until his resignation until 2017.
  1. [12]
    It is further uncontroversial that, at least in the latter part of his employment, 15 hours of his week was spent peeling scallops in the manner described and demonstrated in a video shown to the Commission.[1]
  1. [13]
    There is consensus from all medical experts in these proceedings that the peeling of scallops in the manner described is repetitive work.

Factual disputes

  1. [14]
    I turn now to some of the factual disputes. There were a number of areas where the parties led evidence on facts or were in dispute about facts which, in my view, were largely or wholly irrelevant to the overall question of causation. While I consider that much about those factual differences between the parties was irrelevant, I will nevertheless briefly deal with them.

 Hours of work

  1. [15]
    On the issue of the hours of work and breaks taken by Mr Timmins, as I observed above, there appears to be a lack of clarity around the precise average work by Mr Timmins.
  1. [16]
    It is broadly accepted that he averaged 30 hours per week, five days a week. The evidence of the other witnesses was unclear in keeping with the variable nature of the industry, but nothing about the evidence of the lay witnesses disturbed the evidence of Mr Timmins, in my view.
  1. [17]
    Further, the history taken by Dr Campbell of Mr Timmins working 'up to 70 hours per week' is in no way inconsistent with an average of 30 hours a week. 'Up to', as the expression is used by Dr Campbell, is an expression of maximum weekly hours he has worked and to my understanding of the evidence, this was not challenged.
  1. [18]
    With respect to breaks, there was ample evidence given by both Mr Timmins and his lay witnesses about breaks being taken. Nothing in that evidence suggested to me that there was no opportunity to take breaks throughout the course of a shift. I note here that Mr Timmins told Dr Campbell that he had 'minimal breaks'. Again, in my view, to describe the breaks as 'minimal' is not inconsistent with the evidence that was given by Mr Timmins and the lay witnesses. The evidence was that there were breaks. There's no evidence to suggest that there were no breaks or that the breaks were inadequate.

 Other workers' injuries

  1. [19]
    Secondly, there was some contentious evidence led around the experience of other workers with the same employer, who were performing the same work, with respect to wrist aches and injuries. There was evidence from all of the lay witnesses[2] called that they had either observed others, or had themselves, experienced aches and problems with their wrists after or while peeling scallops. There was some evidence from these witnesses that complaints were made to management from time to time.
  1. [20]
    There was evidence from lay witnesses called by the Regulator to the contrary,[3] that is to say: there was evidence that there was no experience of aches and pains, there was no injuries, and no complaints.
  1. [21]
    In my view, it stands to reason that people performing repetitive work with their hands will experience muscle aches and strains while performing such a task. I note however that there was no evidence led of any other diagnosed injury arising from this work.
  1. [22]
    In the circumstances, I find that other workers performing the same work performed by Mr Timmins likely experienced non-descript discomfort with their wrists. I further find that the fact that others experienced a discomfort is largely (if not entirely) irrelevant to the question of whether Mr Timmins' carpal tunnel syndrome was caused or aggravated by his employment, especially given that there is no dispute that the work was repetitive.

Frozen scallops

  1. [23]
    Another controversy that arose relatively recently in proceedings was the question of whether, in the course of his duties, Mr Timmins was required to peel scallops that were either frozen or only partly thawed. In his evidence before the Commission during these proceedings, Mr Timmins said that up to 70 per cent of the scallops peeled were still frozen or not fully thawed. His lay witnesses offered some support for this, though it was not entirely consistent.
  1. [24]
    The Regulator called Ms Dryer to give evidence on this point. Ms Dryer has, for a number of years (including the years that Mr Timmins worked with the employer) performed the same work. Ms Dryer said at first in her evidence that none of the scallops peeled were frozen or partly frozen in her experience. She later said that she would encounter partially frozen scallops 'occasionally'.
  1. [25]
    In my view, neither the evidence of Mr Timmins nor the evidence of Ms Dryer were entirely plausible. In my view, the truth probably lies somewhere in between. A common experience with the thawing process on any meat, especially large quantities packed together, is that the thawing process will be uneven and inconsistent. Meat at the centre or the bottom of a large pile will be insulated by the product packed around it, even when immersed in water. This will invariably produce unevenly thawed meat.
  1. [26]
    For this reason, I prefer generally the evidence of the lay witnesses called by Mr Timmins, though not to the extent that 70 per cent of the scallops were frozen. In my view, it was probably something less. But it was also, in my view, largely irrelevant in this matter.
  1. [27]
    I say that because, while I accept that frozen scallops might require more force to peel and that this might be an important fact in the context of Dr Ballenden’s overall opinion, I am also conscious that the evidence was that grip-force was applied even to peel scallops that were fully thawed.
  1. [28]
    As there is no evidence to accurately differentiate between the degree of force required for thawed versus unthawed scallops, it is impossible for the Commission to evaluate what difference it makes to causation, if it makes any difference at all.
  1. [29]
    To the extent that I need to, I find that Mr Timmins would routinely find frozen scallops or partly thawed scallops while peeling and that they required some extra force.

 Reason for resignation

  1. [30]
    In respect of the factual contentions around Mr Timmins' reason for resignation, my view is that the reason that Mr Timmins resigned is irrelevant. The fact that he neither complained about his wrist pain, or that he did not tell his employer that that was why he was resigning, has no bearing on causation. This is especially so given it is uncontroversial that he has bilateral carpal tunnel syndrome and he did repetitive work. Also, there are no other non-work-related causal factors or other intervening incidents that are alleged to be causative of his condition.
  1. [31]
    There were no witnesses who, in my view, gave reliable evidence of the conversation between Mr Timmins and the (now deceased) Mr Bradford. While Ms Timmins reportedly gave a precis of what she heard, her evidence was neither complete nor clear.
  1. [32]
    I accept on the evidence of Mr Timmins that he said to his employer at the time, words to the effect of "I can’t do this anymore". I accept that this occurred in the context of a dispute around his rate of pay.
  1. [33]
    In my view, the phrase "I can’t do this anymore" is not an overt statement about his physical capacity but it is not inconsistent with an implied statement to that effect. In any event, even if he had made no such statement, it would not be a barrier to his entitlement to compensation if the other facts and medical evidence support his claim

Summary of factual findings

  1. [34]
    As an overall summary of the factual findings in this matter I find that Mr Timmins:
  • performed this work for at least 15 hours per week;
  • performed this work over a number of years, commencing in 2004 and concluding in 2017; and
  • that the task of peeling scallops required some degree of force to be applied in either firmly gripping the shell in the left hand and/or, from time to time, some degree of extra force was required when a frozen scallop was encountered.

Medical evidence

  1. [35]
    I turn now to the medical evidence in these proceedings. Mr Timmins relies on the medical opinion of Dr Scott Campbell.

 Dr Campbell

  1. [36]
    Dr Campbell is an experienced neurosurgeon. Dr Campbell examined Mr Timmins and provided a report in relation to his condition on 5 December 2017.[4] Dr Campbell diagnosed bilateral carpal tunnel syndrome and he concluded that the injury was 50 per cent constitutional and 50 per cent caused by Mr Timmins’ employment over a period of time.[5]
  1. [37]
    In coming to his conclusion, Dr Campbell took a history from Mr Timmins and also viewed video footage that was before the Commission,[6] which demonstrates Mr Timmins peeling scallops. He was, therefore, familiar with the task alleged by Mr Timmins to be causative of his condition.
  1. [38]
    Dr Campbell’s opinion was based on a history given by Mr Timmins that he worked 'up to 70 hours per week peeling scallops, often five days a week with minimal breaks'.
  1. [39]
    Under cross-examination, Dr Campbell's opinion was that even 15 hours per week peeling scallops over time would be a causal factor in the onset of carpal tunnel syndrome. It was said in submissions by the Regulator that this evidence from Dr Campbell was unsatisfactory. I do not agree.
  1. [40]
    Dr Campbell's report relies on a history of 'up to' 70 hours per week. Nothing in the report excludes a lesser amount or suggests that it must be 70 hours per week, every week.
  1. [41]
    In cross-examination, Dr Campbell responded to the suggestion that Mr Timmins worked 30 to 40 hours a week as an alternative factual scenario by saying that 30 to 40 hours a week would 'get you over the line'. Again, this evidence does not exclude that a lesser amount might also 'get you over the line' to borrow the words of Dr Campbell.
  1. [42]
    Upon then being told under cross-examination that the work peeling scallops was more like 15 hours per week, Dr Campbell still maintained that this was enough to support his opinion of a 50 per cent work-related causation. I did not find this evidence unsatisfactory. On the contrary, I found that Dr Campbell instead was appropriately and honestly expressing his independent medical opinion when alternative factual scenarios were put to him during cross examination. He was not altering his opinion, he was expanding it as propositions were put to him.
  1. [43]
    Overall, Dr Campbell took the view that the repetition alone was sufficient to attribute a work relationship, especially over a period of time.
  1. [44]
    Further, I observed that the Dr Campbell appropriately noted that while this was his opinion, even neurosurgeons are divided over whether carpal tunnel syndrome was work-related. I consider this observation by Dr Campbell to be a clear insight into his independence and objectivity as an expert witness.

 Dr Ballenden

  1. [45]
    Turning now to Dr Ballenden. Dr Ballenden is an experienced occupational physician. He provided two reports, dated 8 June 2018[7] and 11 September 2018.[8]
  1. [46]
    Dr Ballenden did not examine Mr Timmins. I do not regard this to be any way detrimental to his opinion in this instance because:
  • he accepts that the diagnosis is one of bilateral carpal tunnel syndrome;
  • he accepts that the work is repetitive; and
  • on the second occasion of writing a report he had viewed the video that was before the Commission which demonstrates Mr Timmins performing the task of peeling scallops. He would therefore have had a clear understanding of the task alleged to be causative of the carpal tunnel syndrome.
  1. [47]
    Dr Ballenden was of the opinion that Mr Timmins' condition was not work-related. The central focus of Dr Ballenden's opinion was that the work was merely repetitive. In his view, for an activity to have a causal effect on carpal tunnel syndrome, it needed to be both repetitive and forceful and include certain postures.
  1. [48]
    In coming to his conclusion, Dr Ballenden relied heavily on the American Medical Association Guides to the Evaluation of Disease and Injury Causation, second edition 2014 ('the AMA Guide'). Dr Ballenden included what he purported to be a precis of the AMA Guide in his reports in which it states, relevantly:

There is no evidence to support that vibration or highly repetitive work alone or awkward postures alone, keyboard activities or duration of employment have anything to do with carpal tunnel syndrome.

(My emphasis)

  1. [49]
    Under cross-examination, Dr Ballenden remained adherent to his opinion. Further, he declined to comment on alternative factual scenarios put to him by counsel for Mr Timmins which, in my view, he did so without good reason.
  1. [50]
    Throughout cross-examination, when challenged on conflict between the wording of the AMA Guide and his evidence, he said on at least three occasions word to the effect of:

 You're reading this without analysing the papers

 I might have to take you to the original article

Studies have been conducted

(My emphasis)

  1. [51]
    Dr Ballenden did not identify any of these 'papers' or 'articles' or 'studies' and nor were they in evidence before the Commission in these proceedings.

Consideration of medical evidence

  1. [52]
    It follows from my observations above with respect to the medical experts that I prefer the evidence of Dr Campbell. Generally, I found Dr Ballenden's evidence to be less reliable for two reasons.
  1. [53]
    Firstly, I found his representation of the AMA Guide as it appears in the precis contained in his reports to be incorrect.
  1. [54]
    The actual language of the AMA Guide under the heading (at page 282) under the heading "Occupational risk factors for median nerve entrapment of the wrist", the finding is with respect to repetitive work alone:

conflicting evidence, widely varied definitions for repetitive work making association difficult.

(My emphasis)

  1. [55]
    When cross-examined about this, Dr Ballenden said that there were studies that 'went both ways'. It is therefore, in my view, not correct for him to conclude that there is 'no evidence' that repetition alone does is causative of a work-related injury. At its highest, it might be said that the findings are inconclusive but open to conjecture.
  1. [56]
    In my view, Dr Ballenden's erroneous representation (which I do not say is in any way deliberate) of the AMA Guide in this regard was part of what I observed to be a broader demonstrated willingness to interpret the AMA Guide in a manner excluding Mr Timmins' claim.
  1. [57]
    An example of other such behaviour in his evidence was his refusal to acknowledge the possibility of some force being applied in the task of peeling scallops with the left hand or his refusal to consider that the processing of scallops might fall within the description contained in the first risk factor identified in the AMA Guide (at page 282) i.e. the reference to meat-packing and poultry processing.
  1. [58]
    For these reasons, I preferred the evidence of Dr Campbell over Dr Ballenden.
  1. [59]
    Secondly, a wholly separate reason for which I find Dr Ballenden's evidence unreliable was his failure to identify the full source of his opinion. It was clear from his evidence under cross-examination that the articles, papers and studies that he referred to had informed his opinion, and not just the AMA Guide.
  1. [60]
    Without the opportunity for the parties and the Commission to review those other sources and evaluate them, it was impossible to establish the accuracy or otherwise of the conclusions reached by Dr Ballenden.
  1. [61]
    In all of these circumstances, I have preferred the evidence of Dr Campbell. It follows, therefore that I find that Mr Timmins' bilateral carpal tunnel syndrome arose out of or in the course of his employment, and that his employment was a significant contributing factor.

Order

  1. [62]
    As a consequence of this conclusion, I make the following orders:
  1. The appeal is allowed; and
  1. The Respondent pay the Appellant's costs.

Footnotes

[1] Exhibit 1.

[2] Ms Holly Timmins, Mr Dale Seddon and Mr Bradley Gadischke.

[3] Ms Paula Dryer, Mr Hayden Bradford and Ms Nicole Warwick.

[4] Exhibit 3.

[5] I should note here that a 50 per cent work contribution is something that I would regard as being a significant contributing factor.

[6] Exhibit 1.

[7] Exhibit 5.

[8] Exhibit 6.

Close

Editorial Notes

  • Published Case Name:

    Timmins v Workers' Compensation Regulator

  • Shortened Case Name:

    Timmins v Workers' Compensation Regulator

  • MNC:

    [2021] QIRC 200

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    03 Jun 2021

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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