CPSM Pty Ltd v Workers' Compensation Regulator [2020] QIRC 167

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: CPSM Pty Ltd v Workers' Compensation Regulator [2020] QIRC 167 PARTIES: CPSM Pty Ltd (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2018/189 PROCEEDING: Appeal against decision of Workers' Compensation Regulator DELIVERED ON: 17 September 2020 HEARING DATES: DATES OF WRITTEN SUBMISSIONS: 11 - 12 March 2020 Appellant submissions, 27 April 2020 Respondent submissions, 15 May 2020 Appellant submissions in reply, 21 May 2020 MEMBER: HEARD AT: Pidgeon IC Brisbane ORDERS: 1. The review decision of the Respondent dated 25 September 2018 is confirmed. 2. The Appellant pays the Respondent's costs of the appeal. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR - where Appellant contends that employment was not a significant contributing factor to the injury - appeal dismissed. LEGISLATION: Workers' Compensation and Rehabilitation Act 2003 (Qld), s 11 and s 32 -- 1 of 17 -- 2 APPEARANCES: Mr R Laidley of Counsel instructed by Aylward Game for the Appellant. Mr McMillan of Counsel directly instructed by the Workers' Compensation Regulator for the Respondent. Reasons for Decision Introduction [1] At the time of her claim for a back injury, Ms Woodgate was employed as a Personal Carer, Assistant in Nursing by CPSM Pty Ltd ("CPSM"). [2] Ms Woodgate's application for compensation lodged on 8 May 2018 was rejected by WorkCover. [3] Ms Woodgate sought a review of that decision and as a result of the review process, the review officer of the Workers' Compensation Regulator ("the Regulator/Respondent") set aside the decision of WorkCover and determined that Ms Woodgate sustained an 'injury' in accordance with section 32 of the Act. [4] It is the decision of the Workers' Compensation Regulator that CPSM seeks to Appeal. [5] An appeal of this nature is treated as a hearing de novo rather than a review of the decision of the Regulator. The Appellant bears the onus of proof on the balance of probabilities.1 [6] It is not in contention that Ms Woodgate was working for CPSM at Magnolia Aged Care on 22 April 2018. [7] No medical evidence was called at the hearing, however, the Commission was provided with a CT scan taken on 27 April 2018 which showed a "disc bulging at L4/S1 level without foraminal encroachment",2 and on 30 April 2018, Ms Woodgate's doctor diagnosed her injury as 'back pain bulging disc' and referred her for physiotherapy. [8] On 4 May 2018, Ms Woodgate's doctor issued a worker's compensation medical certificate regarding her back injury and the WorkCover application was generated on 8 May 2018. [9] It appears to be uncontroversial that Ms Woodgate sustained a 'personal injury', being 'back pain, bulging disc' diagnosed by Dr Fonseka on 30 April 2018. [10] The key issues to be determined in this appeal are whether Ms Woodgate's injury arose out of, or in the course of, her employment and whether employment was a significant contributing factor to her injury. Legislation 1 Church v Blackwood [2015] ICQ 031. 2 Exhibit 1, page 104. -- 2 of 17 -- 3 [11] The relevant part of the legislation is set out below: 32 Meaning of injury (1) An injury is personal injury arising out of, or in the course of, employment if— (a) for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or … (3) Injury includes the following– … (b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation– (i) a personal injury other than a psychiatric or psychological disorder; (ii) a disease; (iii) a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation. Witnesses [12] For the Appellant: • Ms Courtney Suzanne Costello - Front Office Manager CPSM • Mr Shane Aaron Winterton - Director CPSM • Ms Mary-Anne Daley - General Manager CPSM [13] For the Respondent: • Ms Donna Fleming - Colleague • Kerry Ann Woodgate - Employee subject of this appeal. CPSM's Case [14] CPSM submits that it is foundational that the only person who has any first-hand knowledge of whether Ms Woodgate actually suffered an injury because of a work- related incident is Ms Woodgate herself. This makes her credibility and the consistency of the evidence about when and who she told about this central to determining the outcome. [15] CPSM says that the evidence given by their witnesses, and the contemporaneous documentary evidence is credible, consistent and supports their submission. [16] CPSM says that in contrast, the accounts given by Ms Woodgate and Ms Fleming involve conflicting and changing accounts, contain significant inconsistencies, lack credibility to the extent that the witnesses should be found to be inherently unreliable. The Regulator's Case -- 3 of 17 -- 4 [17] The Regulator submits that there is no evidence upon which the Commission could find that Ms Woodgate's back injury pre-existed the events described by Ms Woodgate on 21 and 22 April 2018 and no direct evidence of any other cause of Ms Woodgate's injury. [18] The Regulator notes that the suggestion that Ms Woodgate injured her back lifting some heavy weight, other than at work, was not put to her in cross-examination and therefore the Commission need only be satisfied that an event occurred at work on 21 or 22 April 2018 that caused Ms Woodgate to experience back pain. [19] If the Commission is satisfied that an incident occurred, the appeal should be refused. Witness evidence Ms Woodgate's evidence about her injury and her claim [20] Ms Woodgate gave evidence on day two of the hearing and was the final witness. [21] Ms Woodgate worked as an Assistant in Nursing at the Magnolia Aged Care Facility for just over three years. She said that she was terminated on 4 October 2018 and, relevantly was working there on 22 April 2018. [22] The following exchange regarding Ms Woodgate's work on the day of 22 April 2018 took place: Mr Laidley: All right. In the course of your work on that day, did any incident or issue occur with any of your patients?--- Ms Woodgate: Just every day, like, you know, it was hard work. Like, mornings, very hard work. You know, you have to get the patients up – sorry, residents up and get them bathed before breakfast, and just particular residents were harder than others. Mr Laidley: Yep. And focusing on particularly the 22nd of April 2018- - -? Ms Woodgate: ---Yep. Mr Laidley: ---did anything occur on that day that's relevant to these proceedings? Ms Woodgate: Just particular residents were harder than others. Mr Laidley: All right?--- Ms Woodgate: Yeah. ….. Mr Laidley: And your workers compensation claim – in that claim, you allege that you injured yourself at work on the 22nd April 2018? Ms Woodgate: Yes. Yes. Mr Laidley: Can you tell the Commission what it is that you think caused your injury?--- Ms Woodgate: Just doing my job. Just – yeah. [23] Ms Woodgate was asked if she told anyone about any symptoms or pain that she was experiencing in relation to her injury. She said that she ran into Donna (Fleming) in a -- 4 of 17 -- 5 shopping centre car park at Upper Coomera which they both went to on their way home from work. They finished work at 2.30pm, so she thought it was between a 2.45pm and 3.00pm. [24] Ms Woodgate said that she told Donna that she'd hurt her back and had a burning sensation in her lower back. She recalled that she and Donna discussed that she had two days off after that and that Donna had said to her to 'just see how you go'.3 [25] Ms Woodgate was asked if she reported the pain to anyone at work on 22 April 2018. She said that she did not make the report because she'd never hurt herself in any job before and had never complained about anything. When asked what she was thinking of doing about the back pain, Ms Woodgate said that she didn't even think about it because she'd never hurt herself in a job before. [26] Ms Woodgate said that her shift that day went from 6.30am-2.30pm. When asked if she had noticed the burning sensation at any time earlier in the day, Ms Woodgate said, 'Probably in the afternoon when I was on the computer doing the computer work. But then it just got worse after that'.4 [27] Ms Woodgate was not rostered to work on Monday and Tuesday as these were her days off following her regular days of Wednesday to Sunday. She said that the pain got worse over those two days and she took painkillers. [28] Ms Woodgate was asked if she went to see a doctor. She could not remember the visit specifically however must have gone because she produced a medical certificate for work on Wednesday 25 April 2020. [29] Ms Woodgate said that she would have made contact with her employer to tell them that she was not going to work on that day. While she couldn't remember ringing on Wednesday 25 April, she said that she would have rung to let them know and that she is very reliable and wouldn't let them down. [30] Ms Woodgate could not recollect the phone call she says she would have made but said it was probably to someone called Mandy. [31] Medical records from Ormeau Family Practice where shown to Ms Woodgate. She was taken to an entry from 26 April 2018.5 Ms Woodgate agreed that the record appeared to be consistent with what she had said to the doctor about the reason she attended on that day. Ms Woodgate agreed that this was the first time that she had seen a doctor about the pain in her back and when asked if at this stage she had told the doctor that she thought she had hurt herself at work, she said, 'Yes. Definitely. Definitely. It's a hard job'.6 [32] Ms Woodgate said that the doctor recommended she get a CT Scan and that she did this on Friday 27th April. She said that Donna texted or rang to see how she was and that it was Donna who drove her to get the CT scan. Following the scan, she went back to see the GP. Exhibit 1, page 87 is the medical certificate signed by Dr Fonseka. 3 T2-4, ll 10-43. 4 T2-4, ll 17-26. 5 Exhibit 1 page 143. 6 T2-6 l 36 - T2-7 l 12. -- 5 of 17 -- 6 [33] Ms Woodgate said that following receipt of a medical certificate for 27-29 April 2018, she telephoned CPSM and thinks she spoke to Mandy. When asked if she remembered what she said on that phone call, she said: I said – I said, I've just come back, just come back from the X-ray, I've hurt – I've done this and this and that, or whatever the X-ray said, and I said, yeah, I hurt my back when I (was) working in Eurpoa. Yep.7 [34] Ms Woodgate said that after the x-ray, she found out the medical cause of the back pain was a bulging disc and that she told her employer that when she rang on the Friday. [35] There was then some discussion about Dr Fonseka recommending that Ms Woodgate see a physiotherapist, James O'Connor. Ms Woodgate was taken to Mr O'Connor's correspondence to Dr Fonseka dated 3 May 2018 following his initial physiotherapy assessment of her. [36] Ms Woodgate said that Mr O'Connor 'recommended that I go through WorkCover, because it was going to take up to six weeks for this to fix itself or whatever'.8 Ms Woodgate said that until Mr O'Connor recommended that she make a WorkCover claim, she had not considered doing so. [37] Ms Woodgate could not recall if she had told Dr Fonseka that Mr O'Connor had suggested she apply for WorkCover. When shown the entry for her visit to Dr Fonseka on 4 May 20189 that listed the reason for visit as workers' compensation certificate, she said that she thought she had been given a certificate. With regard to Dr Fonseka's note 'discussed suitable duties', Ms Woodgate said that she recalled Dr Fonseka suggesting she work four hours and that she was aware that Dr Fonseka spoke to someone at her workplace. [38] There was then an exchange where Counsel for the Regulator took Ms Woodgate through the history of her contact with WorkCover. Ms Woodgate agreed that on 11 May 2018 she had a conversation with a WorkCover officer where she told them that the date of injury was 22 April 2018 and that the event was that she had 'been in a heavy house and had been lifting and everything. By the afternoon I couldn't sit down' and that no one had witnessed the event. [39] Ms Woodgate was taken to the notes where it says that the first person she reported her pain to was her dad. She also recalled telling WorkCover that she had told Donna. Ms Woodgate was asked if at any stage after seeing Mr O'Connor she had told anyone from CPSM how she thought she had hurt her back. Ms Woodgate said that she told Mary-Anne (Daley), General Manager. [40] Ms Woodgate thought she had gone to see Ms Daley to take in some medical certificates. She says that this is when she told her that she hurt her back on the Saturday with a particular resident and then the Sunday with another particular resident. When asked why it was at this stage that she identified a particular incident she thought had occurred when 7 T2-9 ll 1-20. 8 T2-11 l l1-4. 9 Exhibit 1 page 144. -- 6 of 17 -- 7 she had not done so previously, she said, 'because I just knew that's – that's when it happened'.10 [41] Ms Woodgate said that after she had gone back to work, Ms Daley organised a meeting with Mr Winterton, Director of CPSM about her back injury. She recalled that he said that he had had the same injury in the past. She said that the meeting would have been arranged because she was seeking an update regarding WorkCover. Ms Woodgate's evidence under cross-examination regarding incident reporting procedures at Magnolia [42] Under cross-examination, Ms Woodgate said she was not aware of incident reporting facilities. She was asked if she ever logged on to her computer and if she received messages on 'Message board'. She said, 'maybe' and that she is 'not real good with a computer'. She said that she didn't remember any message board reminders about incident reporting procedures and she said that did not recall being told about incident reporting at staff meetings and that she had never attended a 'toolbox session' where she had talk with different members of her team about how to do a particular activity in the workplace. [43] Ms Woodgate was asked whether she knew what she was supposed to do if she hurt herself at work. She recalled that when she hurt herself on one of the last shifts she did, it took her about an hour and a half to find out how to fill in the incident report. She said it ended up that one of the Registered Nurses ("RN") had to actually write an incident report out. The following exchange occurred: Mr Laidley: Why did you tell [indistinct]? --- Ms Woodgate: That's what we were supposed to do. Well --- Mr Laidley: Sorry? Okay so you just said that's what we were supposed to do. So how did you know that?--- Ms Woodgate: Because they're the top dogs. Mr Laidley: So someone had told you that's what you had to do if you hurt yourself. Is that correct?--- Ms Woodgate: Well, they're the head ones – the head ones. The RNs are the head ones. Mr Laidley: So you'd accept that you knew that if you hurt yourself, you were to go to an RN?--- Ms Woodgate: Well, there was no one else there. Mr Laidley: Could you just answer the question. Do you accept that you knew that if you hurt yourself at work, you were to go ---? Ms Woodgate: There was no one else there, so I --- Mr Laidley: No, no, no. No, no. Listen to my question, please, and answer the question, okay?--- Ms Woodgate: Yes. Yes. 10 T2-16, ll 14-16 -- 7 of 17 -- 8 Mr Laidley: You, do you accept that if you hurt yourself at work, you knew that you were to go and tell an RN about it?--- Ms Woodgate: Well, the RNs are the top people, so I didn't know anything else, and no one else would help me, so I just went to an RN. Mr Laidley: So did you know that that's what you were to do – yes or no?--- Ms Woodgate: I suppose so. I mean, in the night-time, there's no one else there. There's only the RNs and they're the top people.11 [44] Ms Woodgate could not recall that there had been a change to procedure after Ms Daley commenced work at CPSM that required people to go to an RN if they hurt themselves. Ms Woodgate's evidence under cross-examination about the incident causing her injury [45] Under cross-examination, Ms Woodgate was asked if there was any doubt in her mind that she had sustained the injury at work, Ms Woodgate said that she knew she did it at work. [46] It was put to her that she had perhaps injured herself on the Sunday night after having 'too many drinks'. Ms Woodgate said that this is not what happened and the matter was not taken further. [47] She said that she had reported to Ms Daley that there had been two events in two days involving patients in the house she was working in that had led to her back injury. She said that this is also what she told Ms Fleming. [48] Ms Woodgate maintained that the first time she noticed symptoms was when she sat down at the computer on the Sunday afternoon. She said that the pain caused her enough discomfort to notice but that at this stage she was not cringing with pain or taking Panadol. [49] Ms Woodgate was shown footage of herself walking through the facility on 22 April 2018 at the end of her shift. The footage appears to demonstrate Ms Woodgate walking normally. When asked if the footage demonstrated that Ms Woodgate was not restricted in her movement or ability to turn or hold weight on one side of the body, Ms Woodgate agreed and said that the pain got worse as the afternoon went on. [50] When asked if she spoke to people on her way out of work, Ms Woodgate agreed that she had. Ms Woodgate also agreed that she did not mention her back pain to any of those people and maintained that it was at the shopping centre carpark that afternoon that she told Ms Fleming her back was hurting. [51] Ms Woodgate said that she never thought to report the injury to work because she did not think anything of it and never whinged. 11 T2-21-22. -- 8 of 17 -- 9 [52] Ms Woodgate said that after seeing Ms Fleming at the shopping centre car park, she visited her father and that during that visit, she mentioned the back pain to both him and her daughter who was also present at the visit. [53] Ms Woodgate's evidence was that she probably would have called work the night before or on the day of the 25th April when she was due back at work to say she would not be at work. [54] Ms Woodgate was shown the record of her doctor's visit where the notes said "low back pain, chronic back pain, flare-up of symptoms since last week, pain after lifting heavy weight, works in aged care".12 There was a discussion about whether this meant that she had reported to the doctor that she hurt her back at work or that she had simply told the doctor what work she does. Following this, there were a series of questions seeking to establish whether she reported to the doctor that she had hurt herself at work. Ms Woodgate maintained at all times that she did. [55] Ms Woodgate was asked about what she told Ms Daley regarding how she had injured her back. She said that on 4 May 2018 she spoke to Ms Daley about 'which resident I was actually doing'. She said that she had to see Ms Daley every day. Ms Woodgate maintained that she had told Ms Daley about two patients. With regard to the first patient, she said that Ms Daley had told her that if he doesn’t want to get out of bed, she should not try to lift him. She also said that she was aware that one of the patients had been assessed and had gone from a 'one-assist' to 'two-assist'. It was put to her that this was not the case, however, she maintained her position that this was her understanding. Ms Woodgate's evidence about the WorkCover review of her refused application [56] Ms Woodgate was asked if she was aware that the solicitors she had consulted about her rights to request a review of WorkCover's decision had contacted Ms Fleming to give a statement about what had happened or any discussions between the two of them. Ms Woodgate said that she was aware and that she had told her solicitors that she had told Ms Fleming about her injury. [57] Ms Woodgate said that her solicitors gave her a draft of Ms Fleming's statement and she had discussed it with Ms Fleming and that Ms Fleming had wanted to 'amend some things'.13 Ms Woodgate was shown a copy of the statement14 and drawn to paragraph five which states that the conversation Ms Woodgate said she and Ms Fleming had in the shopping centre car park had actually occurred immediately after work at Magnolia House. [58] Ms Woodgate was directed to the statement of Donna Fleming which had been hand amended by Ms Fleming.15 She was asked if she ever saw that hand-amended version of the statement and she said that she had not. She said that she told Donna to fix it, she pick it up from her, gave it to her then-partner and he delivered it to the solicitor. 12 T2-38. 13 T2-16, l 38 – T2-17, l l3. 14 Exhibit 6. 15 Exhibit 1 page 292. -- 9 of 17 -- 10 [59] Ms Woodgate said that she never saw an amended copy of the statement but that she was aware that CPSM got a copy of it. Ms Woodgate's evidence under cross-examination regarding the WorkCover and the Review of her refused application [60] There was an exchange about Ms Woodgate's contact with WorkCover. Ms Woodgate was shown the record of contact she had had with WorkCover and was asked about what she had said to the claims representative. Ms Woodgate appeared to have some trouble recalling the details of these conversations. In particular, in relation to a WorkCover claims representative asking her if she had any evidence such as an incident report and why she did not tell the WorkCover representative during either of two phone calls on two consecutive days that she had told Ms Fleming about the incident, Ms Woodgate said that an incident report is a report you fill out. [61] Ms Woodgate was repeatedly asked why she did not tell WorkCover that she had reported the event to Ms Fleming. Her answers were to the effect that she thought an incident report was an official document, not a verbal conversation with a colleague. It was also clear that Ms Woodgate was under the impression that calling in sick and to 'cover myself because I couldn't come in' constituted reporting the matter to work. [62] Ms Woodgate was asked why she decided to tell Slater and Gordon Lawyers that she had told Ms Fleming about the injury. She said that the solicitor asked her if she had any witnesses and that was when she told them about Ms Fleming. [63] There was a discussion about the statement Ms Fleming provided to Slater and Gordan. Ms Woodgate said that she saw a draft of the statement and that she and Ms Fleming had a conversation about it needing to be fixed because it said the conversation happened in the work carpark but it happened at a shopping centre car park. [64] Ms Woodgate said that Ms Fleming made some changes to the statement by hand but Ms Woodgate never looked at that document before it was passed back to the solicitor. [65] Ms Woodgate was asked whether she had told the Regulator that she had had a phone conversation with Mr Winterton where he had told her to take some Nurofen. Ms Woodgate said she would not have said this because she did not speak to him on the phone. She said that that conversation happened in the office. [66] Finally, it was put to Ms Woodgate that she had reported to her employer that she had injured her back at work on 22 April, had not experienced pain until the evening after arriving home at work, that she did not recall a specific incident causing her pain and that she had a previous history of lower back pain. Ms Woodgate said that she did not say those things and that she had never had back pain in her life. [67] Ms Woodgate denied ever telling Ms Daly that she had back pain and that it usually just goes away. [68] Ms Woodgate was asked about her meeting with Ms Daly and Mr Winterton on 27 September 2018. She was asked if she recalled Mr Winterton sending her some notes -- 10 of 17 -- 11 of the meeting to confirm what was discussed. One of the things the notes said was that she told them she had never seen the statement made by Ms Fleming. Ms Woodgate said that she said that because she had never seen the amended statement. Ms Woodgate was asked if she recalled saying in that meeting that the conversation in the staff car park never took place. Ms Woodgate said that she did say that because it was a shopping centre car park not the staff car park. [69] Ms Woodgate said that she did not see Ms Fleming's statement as finally submitted to the Regulator before it was submitted and that she did not know if the solicitors ever asked her to confirm the details about when and where she told Ms Fleming about her injury. Ms Fleming's evidence [70] Ms Fleming said that on 22 April 2018 she saw Ms Woodgate in a car park after work. She said that Ms Woodgate told her that she was feeling a burning sensation in her lower back. [71] Ms Woodgate had not complained of back pain in the previous three years Ms Fleming has known her. Ms Fleming told Ms Woodgate to rest on her days off and see how she was feeling, she thinks Ms Woodgate phoned her later and spoke of continued pain to which Ms Fleming again suggested rest. The following Friday, Ms Fleming drove Ms Woodgate to her medical appointments. Ms Fleming's Evidence Regarding the Statement [72] Some months later without warning, Ms Fleming received a phone call from Slater and Gordon lawyers and discussed the circumstances surrounding the afternoon of 22 April 2018. Subsequent to this conversation Ms Fleming received a statement to which she made some handwritten amendments and returned by hand. Ms Fleming states that she performed these amendments in a rush and is not certain regarding the amendment of the car park in which the conversation with Ms Woodgate occurred. [73] Ms Fleming said that in the meeting with Mr Winterton regarding her statement she said she had not seen the statement he held up to her as she had not seen that amended version of the statement. She said that she told Mr Winterton that the conversation did not happen in the work carpark but at a shopping centre in Upper Coomera. [74] There was a discussion about the email Mr Winterton sent to Ms Fleming summarising and confirming what was said in the meeting. Ms Fleming said that she had been told that she had to respond to the email from Mr Winterton by close of business or she would be off work with no pay. She said that she had an appointment she had to attend and so her husband responded to the email on her behalf. Ms Fleming said her husband knew about the detail of the events because they had discussed them. [75] The email listed a different car park to Upper Coomera, mentioning the Nerang Aldi carpark. After reading the email her husband had sent on her behalf, Ms Fleming told him he had got the car park location wrong. She said that he had listed the car park of the place she used to go to when they lived at Mount Nathan. -- 11 of 17 -- 12 [76] Ms Fleming said that at a second interview, she tried to explain the error in the location of the car park listed. Mr Winterton told her that she if she went to court, she could be in serious trouble for writing something that is not true. [77] It was put to Ms Fleming that it was following receipt of a letter asking her to come to an interview to discuss an allegation that she had deliberately and wilfully produced a false statement to a statutory body with the intention of defrauding CPSM by enabling Ms Woodgate to gain a benefit to which she was not entitled and was told there was footage showing that the conversation did not happen in the work car park that she decided to correct the part of the statement regarding which car park the conversation had occurred in. [78] It was suggested to Ms Fleming that the matter had 'become a lie out of control…helping a friend to try and get a compensation claim'. Ms Fleming said that she would never lie to help anyone get anything. [79] Ms Fleming described the changed reporting process and said that it was necessary to find a RN to report an injury. She accepted that her statement said that CPSM had not told employees the rules about completing incident reports. Ms Fleming was then shown a series of her own injury incident reports.16 Ms Fleming said that she knew that employees were not allowed to complete incident reports themselves. Courtney Costello's evidence [80] Ms Costello told the Commission that at the relevant time, she was the front office manager at the Magnolia Aged Care facility. [81] Ms Costello agreed that there are procedures at the workplace for staff to report if they have an injury during work and said that these procedures are communicated to staff via an electronic message board. She said that there is also an incident procedure and it is communicated at orientation on commencement at the workplace. [82] Ms Costello said that if someone would not be attending work, she would make a note on the absenteeism report and if there was a workplace injury, she would report this to the general manager as well. [83] Ms Costello was shown an electronic document which she recognised as the absenteeism report for the Magnolia Aged Care facility.17 [84] The absenteeism record for Ms Woodgate for the 2017-18 financial year was shown to Ms Costello. Ms Costello recognised a comment box feature which allows her to enter a comment about the reason given by someone for being sick. [85] For the fortnight associated with the 22nd April 2018, Ms Costello agreed that she had recorded an absenteeism for Ms Woodgate that she reported back problems, getting an X-ray and bulging disc. Ms Costello couldn't recall having a telephone conversation with Ms Woodgate but said that she may have. 16 Exhibit 7. 17 Exhibit 2. -- 12 of 17 -- 13 [86] Ms Costello said that if there had been a report of a workplace injury, she would have communicated it to Mary-Anne Daley and that she had not reported anything to Ms Daley about Ms Woodgate in that fortnight. [87] Ms Costello said that it was possible Ms Woodgate had spoken to someone else when she rang. She also said that if someone rang in sick and said that they would be off for three days, she would enter the three days and it wasn't 'an updated daily situation'.18 Mr Winterton's evidence [88] Mr Winterton said that the Magnolia Aged Care Facility had a procedure for staff to report workplace incidents, including those that may have resulted in injury. He said that these procedures are communicated to staff regularly commencing with orientation. Mr Winterton said he was basing his view that Ms Woodgate would have been informed of the process for reporting injuries via induction and broadcast information in message boards on his understanding of what would generally occur, not what he knows in fact occurred at Magnolia in relation to Ms Woodgate. [89] Mr Winterton said that the procedure involves reporting the injury to a RN and that there is always a RN in charge of the shift. [90] Mr Winterton first became aware that there was a claim for compensation in early May. He said that he was aware earlier than that that Ms Woodgate was off work related to an injury because of the reporting processes in place. [91] Mr Winterton recalled that Ms Woodgate's doctor had contacted CPSM regarding suitable duties for Ms Woodgate. He said that he spoke with Ms Daley regarding this. [92] Mr Winterton said that he never had a phone call with Ms Woodgate regarding her injury and that it would be unusual for this to occur. [93] Mr Winterton said that he recalled that the Regulator provided him with a copy of a statement written by Ms Fleming when it was released to him following the review decision. [94] There was an exchange in both evidence-in-chief and under cross-examination where Mr Winterton discussed the process of interviewing Ms Fleming about the statement she had provided to Ms Woodgate's solicitors. Mr Winterton recalled that Ms Fleming said that the statement was wrong in noting that the conversation had happened in the work car park. He said that there were inconsistencies between the comments of both women when interviewed about the location of the conversation. [95] Mr Winterton said that during the interviews held with both women regarding the car park conversation, the focus was more on the discrepancies and inconsistencies in their stories than on the content of their conversation. He accepted that the account each woman gave about what was said between them was substantially consistent. 18 T1-19. -- 13 of 17 -- 14 [96] It was put to Mr Winterton that contrary to the letter he wrote to the Regulator saying that Ms Woodgate had previously had time off with back pain, that there was no record of this. Mr Winterton said that he did not 'have a record clearly of that one way or the other' but that Ms Woodgate had reported to Ms Daley that she had suffered from back pain in the past. Ms Daley's evidence [97] Ms Daley's evidence was that while incident reporting has always occurred, when she started as General Manager in May 2017, she enforced a process where if someone was injured at work, they would report that to a RN. Following any first aid required, the RN would complete the incident form on the electronic system and then inform her. Ms Daly would then review the injury and interview the person who was injured. [98] Ms Daly said that at the time of that change staff were informed and that it would be spoken about at staff meetings, messages, staff huddles and toolboxes. She said that with toolboxes or memos, there would be an attendance sheet to sign to say that the employee had read the memo. [99] Ms Daly couldn't recall when, but said that sometime between May 2017 and April 2018 she would have sent a message out through the electronic 'message board' telling employees how to report an injury. Ms Daly couldn't recall if Ms Woodgate had been a part of any of the toolbox meetings discussing how to report an injury. [100] Ms Daly said she knew on 25 April 2018 that Ms Woodgate had called in sick with a bad back. The admin assistant at Magnolia, Mandy had taken the call and passed this information on. Ms Daly became aware of Ms Woodgate having lodged a WorkCover claim on 4 May 2018, the same day she discussed suitable duties with Ms Woodgate's doctor. [101] Ms Daly said that when Ms Woodgate came to deliver the Workers' Compensation certificate, Ms Daly asked her why she had not reported the injury. Ms Daly says that Ms Woodgate said that her pain didn't start until after work and she didn't recall what caused it. Ms Daly says Ms Woodgate also said that usually if she had a bad back, it just goes away. Ms Daly said that she made notes that it was potentially a recurrent problem. [102] When asked more about that conversation, Ms Daley said she could not recall the exact conversation but that she would have made notes based on what Ms Woodgate said to her. Ms Daley recalled a conversation with Ms Woodgate on 4 May and said that it was not apparent to her from that conversation that Ms Woodgate believed she had injured herself at work. [103] Under cross-examination, Ms Daley said that during the conversation on 4 May 2018, Ms Woodgate said that she had experienced pain at home. It was Ms Daley's opinion that if there was an incident that triggered her back pain, she would have experienced it before she left work. [104] Ms Daly said that it was on 7 May 2018 that Ms Woodgate told her that she thought that it was working with a particular care recipient that may have caused the injury. She agreed that Ms Woodgate had said that she thought she had hurt her back with the transfer -- 14 of 17 -- 15 of a particular patient in Europa and that this led to her undertaking further inquiries about the transfer of that patient. [105] With regard to the interview with Ms Woodgate in September 2019, Ms Daley said that she did not recall asking Ms Woodgate the details of how she injured herself. In answer to a question about whether she would have asked Ms Woodgate questions about how the injury occurred, Ms Daley said 'but there was no injury at work'.19 [106] Ms Daley was asked whether the interview with Ms Fleming included questions about what Ms Woodgate had said to her about the incident or whether it was focused on the statement Ms Fleming had provided. Ms Daley said the interview would have covered other aspects and that they went through Ms Fleming's statement with her. [107] Ms Daly was the person who collated the videos of Ms Fleming and Ms Woodgate leaving work on the 22nd.20 Ms Daley was asked to describe the parts of the facility each woman was moving through as the video was shown to the Commission. Consideration and Outcome [108] There is no dispute that Ms Woodgate injured her back. [109] There is no medical history of back injury prior to the time of Ms Woodgate's visit to the doctor and the investigations leading to the diagnosis. [110] Ms Woodgate's claim that she injured her back is supported by the reporting of her injury to doctors, her physiotherapist and WorkCover. It is also acknowledged in Ms Costello's evidence that Ms Woodgate told her workplace that she was not able to come to work due to her back pain. [111] I accept that Ms Woodgate's version of events changed several times with regard to who she told, where and when she told them and her understanding of the reporting processes in place at Magnolia House. However, while there is varying specificity in the language she uses in describing the cause of her injury to various people, I find that the most consistent description she gives is identifying heavy lifting at work on the weekend in question. [112] I am left with the impression that Ms Woodgate was genuine in expressing that she had sustained an injury at work when working with heavy patients. I accept that the pain she was experiencing led her to seek physiotherapy. It seems that it was the physiotherapist who encouraged her to apply for Workers' Compensation. [113] I have no reason to doubt Ms Woodgate's claim that she was a reliable worker who had not previously claimed workers' compensation and therefore lacked sophistication with the process. [114] Ms Woodgate did not change her position that she hadn't experienced back pain before. It seems to me that Ms Woodgate was attempting to be stoic regarding the injury and she 19 T1-64, ll 14-16. 20 Exhibits 3 and 4. -- 15 of 17 -- 16 hoped it would get better by itself. When it did not, she saw a doctor to seek a medical certificate, in the course of a doctor's visit she was referred for an X-ray investigation. When she received a diagnosis following the X-ray that she realised the injury was more serious. It was when the extent of physiotherapy treatment she may require became clear that she turned her mind to filing a WorkCover claim. [115] Ms Fleming's evidence was that Ms Woodgate had reported to her that she was experiencing back pain. Further to this, Ms Fleming drove her to a doctor's appointment and to the scan appointment. I found Ms Fleming to be a genuine and credible witness and I accept her recollection of what she discussed with Ms Woodgate and consider that it corroborates Ms Woodgate's recollection of events. [116] While there was much discussion about the 'statement' Ms Fleming provided and then later the email, written by her husband in response to Mr Winterton's instruction to provide a response by close of business that day, I find that Ms Fleming was consistent in her view that the original statement contained an error which she failed to fix about the location of the conversation and that her husband's email again listed a wrong location as he was basing it on his knowledge of where she had shopped previously. Ms Fleming maintained throughout her evidence that she had made an error regarding the location of the conversation. Ms Fleming clearly did not pay attention to detail in this matter as her evidence demonstrated that she did not read the documents carefully. Despite this, her evidence was consistent, and I accept what she says regarding the handling of the statement. Ms Fleming did not appear to me to be a person who would deliberately seek to make misleading statements. [117] The footage showing Ms Woodgate walking normally on the afternoon she says she began to feel her pain was not inconsistent with her report that she was feeling a burning sensation but that it progressively got worse over the hours to come. In the absence of expert evidence analysing her movement in these videos, I find that on the balance of probabilities, Ms Woodgate's account of the progression of her injury can be accepted. [118] Ms Woodgate's doctors were not called to give evidence and so I am left to consider the content of the notes in the context of the witness evidence at trial. The doctor's report referring to Ms Woodgate hurting her back 'lifting heavy weight' and that she 'works in aged care' does not conclusively demonstrate that the told the doctor that she hurt her back lifting heavy weights at work in aged care. Conversely, it offers no other context or detail regarding the lifting of heavy weight to suggest it happened other than at work. I do not accept the Appellant's suggestion that the medical records demonstrate that Ms Woodgate did not report to the doctor that her injury occurred at work or by undertaking work activities. [119] I accept Ms Daley's evidence that Ms Woodgate did not report her injury through the CPSM formal procedure. However, Ms Woodgate had submitted medical certificates and taken time off work and had said the reason for her absence from work was back pain. This was recorded in the electronic absentee report discussed with Ms Costello.21 This occurred prior to making the decision to claim workers' compensation following her trip to the physiotherapist. 21 Exhibit 2, T1-16. -- 16 of 17 -- 17 [120] It is also the case, that while there was some delay due to her absence from work due to her back injury, there was only a period of about a fortnight between the date of the injury and the lodging of the claim. This is not a situation where there was a very lengthy delay in seeking medical attention, treatment or making a report. With regard to the report provided to WorkCover22 it is correct that Dr Fonseka identified 4 May 2018 as the date she made the causal connection between employment and Ms Woodgate's injury. However, the reason given for there being no workers' compensation medical certificate issued in the initial consultation is that the patient did not initially request one. I am reluctant, in the absence of evidence from Dr Fonseka, to consider the brief responses on this form in isolation from the medical notes attached to that report which, as mentioned above, lists the cause of the pain immediately before a note regarding her work.23 [121] I accept that Ms Woodgate's injury arose out of her employment and I am unable to identify a significant contributor to Ms Woodgate's injury other than her work duties on 22 April 2020. [122] In the circumstances, I am satisfied that Ms Woodgate has a compensable injury. [123] The review decision of the Respondent dated 25 September 2018 is confirmed. [124] The Appellant is to pay the Respondent's costs of the appeal. 22 Exhibit 1, page 72. 23 Exhibit 1, page 75. -- 17 of 17 --