Avery v Workers' Compensation Regulator [2017] QIRC 79

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Avery v the Workers' Compensation Regulator [2017] QIRC 079 PARTIES: Avery, Lorena Joyce (Appellant) v the Workers' Compensation Regulator (the Respondent) CASE NO: WC/2016/134 PROCEEDING: Appeal against a decision of the Workers' Compensation Regulator DELIVERED ON: 25 August 2017 HEARING DATES: 19, 20 and 21 July 2017 HEARD AT: Townsville MEMBER: Industrial Commissioner Fisher ORDERS: 1. The appeal is allowed. 2. The decision of the Workers' Compensation Regulator dated 5 July 2016 is set aside and substituted by the decision that the application is one for acceptance. 3. The Regulator is to pay the costs of and incidental to the appeal. Failing agreement, the Appellant is at liberty to apply. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - whether appellant sustained back injury at work - where credibility of appellant - where reliability of evidence of co-workers - whether elements of s 32 of Workers' Compensation and Rehabilitation Act 2003 satisfied. CASES: Workers' Compensation and Rehabilitation Act 2003, s 32 APPEARANCES: Mr R.J. Armstrong, Counsel instructed by Purcell Taylor Lawyers for the Appellant. -- 1 of 8 -- 2 Mr G.C. Rhead, Counsel directly instructed by the Workers' Compensation Regulator. Decision [1] Lorena Avery made a workers' compensation application claiming she sustained a back injury at work in April 2013. This application was not accepted. The Regulator advanced several reasons why the appeal should be dismissed, including the credibility of Ms Avery and the reliability of the evidence of her co-workers. Were the Commission to find that the back injury occurred as alleged, the appeal would be allowed. How the injury occurred [2] A key factor in the defence of the appeal is the information Ms Avery gave to her General Practitioner, Dr Kazum, on 5 April 2013. His medical notes record that Ms Avery told him she hurt her back on Wednesday (i.e., 3 April) lifting pots. At her next consultation three days later, she added that she was "injured at home lifting the pots". [3] In evidence, Ms Avery acknowledged she provided Dr Kazum with this information but freely conceded it was not the truth. She told the Commission she had not been honest because the policy of the practice where Dr Kazum is engaged is to require patients to pay at the time for consultations concerning workers' compensation claims. In other cases, the practice bulk bills. A notice stating this policy was visible when Ms Avery arrived. Dr Kazum confirmed this policy in his evidence. Ms Avery explained she became scared as she did not have the money to pay for a consultation or any X-rays that might be required. [4] Ms Avery's evidence is that the injury occurred at her workplace, Cornetts IGA, Riverside Gardens, Townsville. She was working in the cold room lifting boxes of sausages weighing about 10-15 kg from one pallet over another and placing them onto a trolley. Close to lunchtime, while lifting a box, Ms Avery felt a sharp pain in her lower back that radiated down her leg. It made her feel sick. She went outside to the back dock to rest her back and to have a smoke. [5] Other workers were congregating at the back dock. Amongst them was Stacey Witts, Shop Assistant. Ms Avery told her that she hurt her back. Ms Witts confirmed this in her evidence and said Ms Avery informed her that she had been lifting cartons of sausages. Ms Avery came out of the cold room crying and was holding her back. Ms Witts recalled Ms Avery leaving work early that day because she had hurt her back. [6] Several other workers also attested to Ms Avery having hurt her back in or around April 2013. [7] Sharlene Fourro, the Deli Manager, recalled Ms Avery telling her she had hurt her back at the workplace by lifting boxes in the cold room. She saw Ms Avery later in the day after she had hurt herself and remembered her being in a lot of pain: she could see this in her face and how she was standing. Ms Fourro recalled Ms Avery being "OK" in the morning of her injury. -- 2 of 8 -- 3 [8] Amy Price, a Deli Assistant, on being told that Ms Avery had hurt herself, went to the meat department to check on her. This was about an hour after the incident occurred. Ms Avery told Ms Price she had hurt her back by lifting a carton in the cold room. Ms Price said Ms Avery was in a lot of pain; had tears in her eyes; had her hand on her lower back and was leaning on the sink. [9] Tracey McWaters saw Ms Avery at the back dock in the smoking area looking uncomfortable and not walking normally. Although Ms McWaters was employed as a Grocery Assistant, she effectively acted as the store manager in the absence of Andrew Howarth. Ms Avery went to see Ms McWaters at the end of her shift and told her that she had hurt her back by lifting cartons in the cold room. Credibility and reliability of Ms Avery's co-workers [10] The evidence of Ms Avery's co-workers was called into question by the Regulator, particularly in respect to its reliability. Many of Ms Avery's witnesses are her personal friends, however, Ms Witts has lost contact with her, having moved away from Townsville while others only see her infrequently. Ms Price has remained in contact with Ms Avery. All her witnesses said Ms Avery had contacted them to ask about providing a statement to her Solicitor about the time she hurt her back. Ms Avery did not mention a time period to them, except Ms Witts who said Ms Avery referred to a work incident at Easter 2013. [11] Ms Avery did not claim just to have injured her back at work in April 2013, but also in October and December of that year, all by lifting boxes. The Regulator explored with Ms Avery's witnesses as to whether they had confused the April incident with either of these events. [12] Ms Witts remembered the incident but not exactly when it occurred. Her recollection was that the incident occurred at Easter 2013 as she recalled Easter pallets were on the loading dock and in the cold room. As she worked night shift after being employed by Woolworths,1 she did not see Ms Avery and was not told of the October event. [13] Ms McWaters recalled the incident happened around Easter as a lot of stock was in the cold room and could recall the December incident but not one in October. Ms Fourro remembered an event occurring about six to eight months before the Woolworths take over but had no recollection of the October incident. [14] Because Mr Howarth left the employ of Cornetts in August, he had no knowledge of either of the later events. Ms Price left employment in November and was not at work for all days in October. [15] The Regulator doubted the credibility and reliability of Ms Avery's witnesses, arguing in submissions that it was rare for people to have the kind of recollections as demonstrated here three years after an event. However, while the witnesses were giving their evidence, the Regulator did not directly challenge their truthfulness; propose to them their evidence was knowingly false; put to them that they had colluded or that their evidence was biased in favour of Ms Avery. 1 Woolworths purchased Cornetts IGA Riverside Gardens and commenced operations on 1 November 2013. -- 3 of 8 -- 4 [16] In light of the staff movements in 2013, I am satisfied that the witnesses did not confuse the April event with later events. They were also consistent in their evidence about the degree of pain suffered by Ms Avery. I accept the submissions of Counsel for the Appellant that that evidence was unshaken. I also consider that the pain described by the various witnesses is something that would be remembered. Further, I accept that each of the witnesses called by Ms Avery gave their evidence spontaneously, made appropriate concessions and it was in keeping with their education, background and age. Incident Report [17] Ms McWaters told Ms Avery to see Mr Howarth to complete an Incident Report. [18] Ms Avery, Mr Howarth and Ms McWaters attested to an Incident Report being completed. Although this was likely to have occurred on 4 April, it could have been as late as 8 April. Each of them signed the document, with Ms McWaters recorded as being the person to whom the injury was first reported. [19] Ms McWaters and Mr Howarth explained the process once an Incident Report was completed. A copy would be placed on the employee's in-store personnel file and a copy sent to Cornetts head office in Brisbane. Mr Howarth said an express post bag was used. [20] Jennifer Inglis, HR Executive for the Cornetts IGA Group, disagreed with the process outlined by Mr Howarth and Ms McWaters. She explained that Incident Reports are predominantly faxed from a store to the injury management team located in head office in Brisbane. From there, the Incident Report is forwarded by email to payroll. On occasion, an Incident Report might be forwarded by mail bag and when received, is date stamped. [21] Despite extensive searches, Ms Inglis was unable to locate the Incident Report. She was also unable to find Ms Avery's personnel file that should have been held by head office. The records from the Riverside Gardens store had been archived after Woolworths had purchased and taken over the store. Only some documents relating to Ms Avery's employment could be found. [22] Amongst those were the medical certificates relevant to the period in question. Ms Avery worked on light duties on 4 April then went to see Dr Kazum on 5 April. She worked again on 8 April on light duties with the assistance of her son, who was also an employee of the store, and with the approval of Mr Howarth. Ms Avery returned to see Dr Kazum on 8 April and was issued with a medical certificate certifying her unfit for work for the remainder of the week. She returned to work on light duties on 15 April. A medical certificate provided by Dr Kazum shows that light duties were to continue to Monday 22 April. [23] Ms Inglis explained Cornetts' policy where an employee is injured at work. Cornetts encourages such an employee to attend a doctor and claim workers' compensation. A suitable duties program is developed once the employee regains capacity. However, an employee who sustains a non-work related injury is required to remain off work until a medical clearance is obtained. Cornetts have no capacity to implement a suitable duties program in these circumstances. In Ms Avery's case, as no workers' compensation -- 4 of 8 -- 5 claim had been made, and only general medical certificates were received, Ms Avery would not have been permitted to return to work until a full clearance was given. Additionally, contact would have been made by payroll to the Store Manager to reinforce the requirement for a full clearance before the employee could return to work. [24] The payroll records show Ms Avery took some sick leave but otherwise received her normal pay. Ms Inglis said there was no evidence that Ms Avery had been on suitable duties. [25] The evidence from Ms Avery, Mr Howarth and Ms McWaters is that Ms Avery worked on light duties with assistance from her son despite not lodging a workers' compensation claim or obtaining a medical clearance. [26] The difference in the evidence from Ms Inglis and the witnesses for the Appellant is best explained by the evidence of Mr Howarth. He said that completing the Incident Report was "going down the workers' compensation path".2 If an injury had occurred outside of work then a full clearance was required before a return to work could occur. It is apparent that Mr Howarth misunderstood the Cornetts' policy, however, his evidence shows he accepted that a workplace injury occurred and implemented his own suitable duties plan for Ms Avery. [27] I am satisfied that an Incident Report was completed. I accept that Ms McWaters told Mr Howarth of the incident on his return to work and this prompted the completion of the form. The evidence given by Ms Avery and Mr Howarth about the form was consistent with that expected to be given by an employee who had not previously engaged in the process and a manager. Further, while the evidence of Ms McWaters and Mr Howarth about the process that followed with respect to the Incident Report differs from that of Ms Inglis, it was consistent and credible. That an Incident Report could not be found does not mean that one was not made. [28] Ms Inglis could not speak with direct knowledge about how the policy was applied to Ms Avery in April 2013. Because of this and in the absence of Ms Avery's personnel file, Ms Inglis' evidence did not assist the Commission. Other incidents [29] Although she had made a note in her diary for 3 April of "hurt back", no such entries were recorded for either of the October or December 2013 incidents. All three incidents involved lifting boxes of product. [30] Ms Avery consulted Dr Kazum on 22 October in relation to a back injury but her diary for the week of 21 to 25 October is blank. When this was put to her in cross-examination, Ms Avery said she thought this was when the IGA Meat Department had closed and she was just helping around the store. Her evidence was that Mr Howarth was just recording eight hours work for everyone. When she was informed that Mr Howarth was no longer employed by the store then, Ms Avery indicated the new manager was doing this. I am prepared to accept her evidence about Mr Howarth at this point was a mistake as she had indicated in her evidence earlier that Mr Howarth had ceased being the store manager by then.3 2 T3-14. 3 T2-25. -- 5 of 8 -- 6 [31] The diary is also blank for December. Ms Avery explained that she was on a week's annual leave after that and was hoping her back would "come good".4 [32] The evidence about the diary is problematic for Ms Avery's case. In her evidence in chief she said she had made a practice of keeping a diary for about 20 years and completing it each evening. Although she was not directly challenged about this, her evidence given in cross-examination does not sit comfortably with her evidence about her practice. It also raises questions about whether the diary was completed on 3 April as Ms Avery suggests. [33] Added to this is that 7 April 2013 was the date recorded in the belated workers' compensation application dated 18 February 2014 and her advice to Dr Coroneos. Ms Avery said that she was requested by her Woolworths' manager to attend the store to complete a workers' compensation application. As she believed the application related to her Woolworths' injury she had not checked her diary for the April injury date before the meeting. On arriving home, she consulted her diary and noticed that entry for "hurt back" was 3 April. However, she did not notify Woolworths of the incorrect date. [34] The consultation with Dr Coroneos occurred some months after she checked her diary. There is no explanation, nor was one sought, about the reason she carried over the mistake. [35] Ms Avery was challenged on the reason she did not make contemporaneous workers' compensation claims for the April and October 2013 incidents. She explained that she did not want to have a WorkCover claim against her name when Woolworths were taking over the store. It was her understanding that most employers would not accept an employee where they had a workers' compensation claim. [36] Mr Howarth confirmed that the prospect of Woolworths taking over the store was known in early 2013. Ms Inglis was not asked about this matter. [37] Ultimately, the Commission is not concerned about the October or December injuries or events. I accept Ms Avery held genuine fears for her continuing employment were she to make workers' compensation claims for the April or October incidents. Whether these fears would have been realised is not a matter for the Commission to determine. [38] As to the date of the April injury, I accept based on Dr Kazum's medical records that it was 3 April 2013. It could not have been 7 April as it fell on a Sunday and Ms Avery did not work on Sundays. Medical evidence [39] Dr Kazum said the primary reason Ms Avery presented on 5 April was to stop smoking. The back injury was a secondary reason. However, based on the order that these reasons are documented in his medical records, I consider the back condition was the most pressing issue. 4 T2-36. -- 6 of 8 -- 7 [40] As previously mentioned, his records show that at this consultation Ms Avery told him she had been lifting pots on Wednesday. At the consultation three days later she added that this activity had occurred at home. [41] Dr Kazum said the injury suffered by Ms Avery in April 2013 could possibly have been caused by lifting boxes but any kind of movement, such as bending over to pick up keys, can aggravate pre-existing degenerative changes in the spine. [42] Dr Kazum referred Ms Avery to Dr Winter, a Sports and Exercise Medicine Physician who first saw Ms Avery on 24 January 2014. He confirmed that his medical records show that Ms Avery told him that she suffered back pain at work in April 2013. She was off work for two weeks and the pain settled with heat. His evidence is unclear as to whether Ms Avery told him that this back pain was caused by lifting boxes at work at this consultation. However, this information was included in his letter dated 12 May 2014 to the Woolworths' self-insurer. [43] Dr Winter considered the injury Ms Avery sustained in April 2013 was consistent with his 2014 diagnosis, i.e., lumbar disc disease with a degree of nerve irritation, possibly at S1. The injury could have been either a provocation or an aggravation of disc degeneration.5 He believed it was possible Ms Avery could have sustained a back injury in the manner she described although it could have happened lifting pots. [44] The report of Dr Coroneos, Consultant Neurologist, dated 14 October 2014 also records that Ms Avery told him that she hurt her back at work on 7 April 2013 when she was lifting a box of sausages weighing about 12 kg off a pallet, over another pallet onto a flat top loader. Dr Coroneos found she did not sustain a work-related injury because of Dr Kazum's consultation notes which recorded she was lifting pots at home. [45] Dr Coroneos did not accept that she had sustained an aggravation injury. However, he acknowledged under cross-examination that Ms Avery could have sustained a back injury in the manner described by lifting boxes. He said she could have sustained a lumbar soft tissue strain; a traumatic L5/S1 disc protrusion or the onset of lumbar spondylosis. Despite that concession, Dr Coroneos advised he relied on the contemporaneous medical records to determine what happened retrospectively as this was the recommended procedure of the American Board of Independent Medical Examiners. [46] Ms Avery was assessed by the Medical Assessment Tribunal on 20 November 2014. The MAT was informed about Ms Avery's injury in April 2013 but decided not to apportion any percentage to any previous injury. Conclusion [47] Despite her untruthfulness to Dr Kazum in April 2013 - a situation she did not seek to rectify throughout that year despite being a patient of long-standing - I am prepared to accept Ms Avery's evidence. She was not challenged in cross-examination about her reason for not disclosing the truth. Further, her reason for not disclosing the truth about her injury to Dr Kazum is credible. It is common knowledge that retail workers are not highly paid. Cost of living pressures are widely reported and accepted. 5 T2-74. -- 7 of 8 -- 8 [48] Her evidence about sustaining her injury at work was also supported by the evidence of her former co-workers. Although none of them directly witnessed the event, they could provide accounts of Ms Avery's condition following the event. Ms Witts was the first person to see her immediately after the event and gave evidence about Ms Avery being in pain and what had caused it. Ms Fourro was able to compare her condition in the afternoon with that of the morning. No evidence to the contrary from other co-workers was called. [49] The witnesses also did not confuse the April incident with any later events. I consider Ms Avery's claim to have been injured at work in April 2013 was corroborated by those witnesses who were present on the day. [50] I have accepted that a contemporaneous Incident Report was made. [51] Despite the qualifications placed on his evidence, Dr Coroneos accepted a back injury could occur in the manner described by Ms Avery. His evidence went beyond the mere possibility expressed by the two General Practitioners, and because of his skill, knowledge and expertise in the field, it is preferred. [52] For these reasons, I am satisfied that Ms Avery injured her lower back at work on 3 April 2013 when lifting a carton of sausages from one pallet over another and onto a trolley. The Regulator accepted that were the Commission to make this finding the elements of s 32 of the Workers' Compensation and Rehabilitation Act 2003 would be satisfied. The Commission so finds and determines. Orders 1. The appeal is allowed. 2. The decision of the Workers' Compensation Regulator dated 5 July 2016 is set aside and substituted by the decision that the application is one for acceptance. 3. The Regulator is to pay the costs of and incidental to the appeal. Failing agreement, the Appellant is at liberty to apply. -- 8 of 8 --