Blair v Simon Blackwood (Workers' Compensation Regulator) [2016] ICQ 4

INDUSTRIAL COURT OF QUEENSLAND CITATION: Blair v Simon Blackwood (Workers’ Compensation Regulator) [2016] ICQ 004 PARTIES: ROWENA BLAIR (appellant) v SIMON BLACKWOOD (WORKERS’ COMPENSATION REGULATOR) (respondent) FILE NO/S: C/2015/26 PROCEEDING: Appeal DELIVERED ON: 19 February 2016 HEARING DATE: 27 July 2015 MEMBER: Martin J, President ORDER/S: Appeal dismissed. CATCHWORDS: WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAINS COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – NATURE AND SCOPE OF APPEAL AND REVIEW – where the appellant, who assisted with kitchen duties at an aged care home, sought compensation for lateral epicondylitis or tennis elbow – where the Commissioner found that it was not demonstrated the injury arose out of the appellant’s employment or that such employment was a significant contributing factor – whether the Commissioner erred in so finding – whether the Commissioner erred in failing to provide any or any adequate reasons for so finding Workers’ Compensation and Rehabilitation Act 2003, s 32 CASES: Abbott v Blackwood [2014] ICQ 31 Graham Cameron AND Q-COMP (C/2011/22) – Decision http://www.qirc.qld.gov.au; Momcilovic v The Queen (2011) 245 CLR 1 Rowena Blair v Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 107 APPEARANCES: T A Nielsen, instructed by Brandon & Gullo Lawyers, on behalf of the appellant N Jarro, directly instructed by the Regulator, for the respondent -- 1 of 6 -- 2 [1] The appellant sought compensation on the basis that she had suffered an injury – lateral epicondylitis or tennis elbow – while at work. The Commissioner found that while the appellant had suffered an injury, she had not demonstrated that it arose out of her employment or that her employment was a significant contributing factor to the injury. Background [2] The appellant commenced employment with Ozcare at the Currimundi Aged Care Facility in 2008. At the relevant time, her duties included performing kitchen duties on a regular daytime shift for 10 days every fortnight. As part of her work, the appellant would assist the chefs with the preparation of food and undertake other work such as cleaning equipment, crockery and cutlery, and associated tasks. [3] The case for the appellant was that she first recalled feeling pain in her left elbow when she was at work on 13 December 2012. This occurred, she said, as she lifted a “pile of plates” from a work trolley into the sink in the main kitchen area. She described it in this way: “… I picked up a pile of plates from the trolley into the sink and then lower in the sink. As I lower it into the sink I got the pain in the elbow so I kind of dropped uh – yeah, with the shock, quick pain or something.” [4] On the day that this was alleged to have occurred, the appellant was also experiencing a stomach illness and she went home early. She consulted her general practitioner, Dr Manzano, on the following day. Grounds of appeal [5] The grounds of appeal relied upon are as follows: (a) The Commissioner erred in finding that the appellant did not suffer an injury to her left elbow at work on 13 December 2012; (b) The Commissioner failed to provide any or any adequate reasons for her finding that the appellant’s injury did not occur on 13 December 2012; (c) The Commissioner erred in finding that the appellant’s employment was not a significant contributing factor to her injury in accordance with s 32 of the Workers’ Compensation and Rehabilitation Act 2003 (the Act); (d) The Commissioner failed to provide any or any adequate reasons for her finding that the appellant’s employment was not a significant contributing factor to her injury in accordance with s 32 of the Act; (e) The Commissioner erred in finding that the appellant’s injury did not arise out of the course of her employment in accordance with s 32 of the Act; -- 2 of 6 -- 3 (f) The Commissioner failed to provide any or any adequate reasons for her finding that the appellant’s injury did not arise out of the course of her employment in accordance with s 32 of the Act; (g) The Commissioner erred in failing to consider relevant material; (h) The Commissioner erred in considering irrelevant material; and (i) The Commissioner erred in placing undue weight on certain factors. Did the appellant suffer an injury to her left elbow at work? [6] The Commissioner gave her reasons for holding that the injury did not arise out of or in the course of employment in the following paragraph:1 “[75] Whilst I am convinced Ms Blair experienced elbow pain, at the very least, in the week proceeding [sic] Christmas 2012 and a number of her work colleagues, including Ms Bell and Mr Geraldo, were aware she was experiencing some pain around this time, I’m not persuaded the initial pain and symptoms complained of by Ms Blair specifically arose on the 13 December 2012 as described by her for the following reasons:  Ms Blair did not report her elbow pain or symptoms to her supervisor on the afternoon of the 13 December 2012 despite speaking directly to Ms Renwick and seeking permission to leave early due to a stomach bug;  Not one of Ms Blair’s work colleagues witnessed such an incident occurring;  Despite attending a medical appointment with Dr Manzano the following day, there is no record in his notes of any comments by Ms Blair in respect of any elbow pain or an examination by her doctor, despite other records of an ear complaint in the same consultation;  Details contained in the tendered incident report in respect of the elbow injury and the oral evidence of both Ms Blair and her housemate Phillip James about the plate lifting incident and the timing associated with Ms Blair seeking medical treatment are inconsistent and unclear; and  A contemporaneous file note prepared on 20 December 2012 and retained by Ms Bell indicates Ms Blair was unsure as to whether her elbow pain and symptoms arose out of work and make no mention of the 13 December 2012 plate lifting incident.” 1 Rowena Blair v Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 107. -- 3 of 6 -- 4 [7] The case advanced by the appellant under the first two grounds of appeal is, in effect, nothing more than an attempt to quarrel with findings which were open on the evidence. Each of the matters referred to at [75] of the Commissioner’s decision was open to be found by her on the evidence and, while each of them on their own might not be sufficient to justify the finding made, taken together they demonstrate that the Commissioner had carefully considered all of the material available and made the finding on that basis. [8] One of the complaints made by the appellant is that the Commissioner took into account the fact that Dr Manzano made no record of any comments by the appellant concerning elbow pain. For reasons which were not obvious to me, Dr Manzano was not called. The appellant gave evidence that she did complain of the pain in her elbow but the doctor’s notes refer only to two other matters from which the appellant was then suffering – gastroenteritis and otitis media. [9] The appellant’s case under this heading is not one which demonstrates any error but rather is one consisting of arguments more suited for a hearing at the initial appeal before the Commission. The effect of the appellant’s submissions is that the Commissioner should have reached a different conclusion. The conclusions, though, were open to be made and there was evidence to support them. Was her employment a significant contributing factor? [10] The Commissioner found that the evidence did not support a finding of the injury occurring at work, rather that the nature of tennis elbow is that it is a degenerative condition and that the appellant’s employment was nothing more than the setting in which her pain and symptoms arose. Her employment was not, then, a significant contributing factor. [11] Once again, the arguments advanced for the appellant seek to draw a different conclusion from the same evidence. The conclusion drawn by the Commissioner was open to her and no error has been demonstrated in the reasoning which she used, nor that, in reaching the conclusion, she failed to take into account any relevant matter. Were the reasons sufficient? [12] This ground was not argued with much passion. The principles to be applied were considered in Abbott v Blackwood,2 where the following was said: “[18] Of course, when considering whether or not a Tribunal has either overlooked some relevant evidence or misconstrued the issue to be determined, an appeal court must not be quick to apply a critical magnifying glass. I agree, with respect, with what Hall P said in Cameron v Q-Comp:3 “[3] It is, however, important for an appeal court to refrain from undue ebullience in seeking-out error in decisions written under the pressure of other 2 [2014] ICQ 031. 3 (C/2011/22) – Decision http://www.qirc.qld.gov.au. -- 4 of 6 -- 5 work and after lengthy trials. I adhere to the view expressed by this Court in Cunningham and Others (Flower and Hart) v William Hamilton Hart, viz: ‘… However, I accept that the Court should not be overly enthusiastic to seek out error. Cases abound in which the need for caution and restraint have been emphasised. It is convenient to commence with the observations of Meagher JA in Beale v Government Insurance Office of NSW: ‘It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered.’ Over twenty years later, the nuances of meaning carried by the colourful phrase, ‘miscarriage of justice’, render the passage less helpful than it once was. However, the more moderate formulation in Collector of Customs v Pozzolanic, viz.: ‘This translates to a practical as well as principled restraint. The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal’s thoughts: …The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Politis v Commissioner of Taxation (Cth).’, continues to be helpful. The observations of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors, are to the same effect. Footnotes omitted, the passage is: ‘These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.’ (citations omitted, emphasis added)” -- 5 of 6 -- 6 [13] The contentions for the appellant did not demonstrate that the reasons given were inadequately expressed. The argument was an extension of the submission that different conclusions should have been reached. Did the injury arise out of the course of her employment? [14] These are matters which have been dealt with in the preceding discussion of the matters relating to whether the injury occurred at work or whether her employment was a significant contributing factor. Other grounds [15] The last three grounds of appeal were nothing more than a revisiting of the earlier grounds and did not add anything to the appeal. [16] One of the matters which concerned the appellant was a reference by the Commissioner to a decision of the High Court in Momcilovic v The Queen.4 That authority was cited for the principle that when considering expert evidence “it is not sufficient to rely on a statement that something happened. The party alleging the ‘fact’ must provide some direct or corroborative material that demonstrates the existence of a fact in issue.” So far as a statement relating to the assessment of expert evidence is concerned, it is correct. The reference to Momcilovic is wrong and is an error which may have arisen in the editing process of the decision. The mere fact that a footnote is wrong does not detract from the force of the proposition set out. Conclusion [17] The manner in which the appeal was conducted was more akin to a trial in which a decision maker is being urged to adopt one conclusion over another. That is not the purpose of an appeal to this court. In order to prevail, an appellant must demonstrate a necessary error of law or fact or in the exercise of a discretion. In this case, the appellant has attempted to show that other conclusions might be drawn from the evidence. What the appellant has not done is demonstrate any error in the approach taken by the Commissioner so far as her findings are concerned. [18] The appeal is dismissed. 4 (2011) 245 CLR 1. -- 6 of 6 --