Adam v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 171

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Adam v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 171 PARTIES: Adam, Osman (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2015/32 PROCEEDING: Appeal against decision of the Workers' Compensation Regulator DELIVERED ON: 23 September 2015 HEARING DATES: 27, 28 & 29 July 2015 HEARD AT: Brisbane MEMBER: Deputy President Swan ORDERS 1. The Appeal is dismissed. 2. The Appellant is to pay the Respondent's costs of and incidental to the Appeal. CATCHWORDS: WORKERS'S COMPENSATION - APPEAL AGAINST DECISION - decision of Simon Blackwood (workers' Compensation Regulator) - evidence given through an interpreter - alleged incident causing injury at work in March 2011 - not an over-time claim but a specific incident claim - similar incident occurred at work in 2012 - alleged event in March 2011 rejected by Commission - medical evidence does not support alleged claim from 2011 - corroborating evidence for an 'event' in 2012 - implausibility of mechanism of injury -application dismissed. CASES: Workers' Compensation and Rehabilitation Act 2003 Bradshaw v McEwans Pty Ltd [1951] - 217 ALR 1 at 6 MacArthur v WorkCover Queensland [2001] QIC 21 -- 1 of 16 -- 2 Thorsten Groos and WorkCover Queensland (2000) 165 QGIG 107, 107 APPEARANCES: Ms S. Anderson, Counsel, instructed by Shine Lawyers for the Appellant. Mr S. Gray, Counsel, directly instructed by Simon Blackwood (Workers' Compensation Regulator). Decision [1] Mr Osman Adam lodged a Notice of Claim for damages dated 22 April 2014 with WorkCover Queensland ("the Insurer") for injuries said to have been sustained during his employment as a labourer with Barry Stoodley Pty Ltd in March 2011. [2] By decision on 25 July 2014, the Insurer rejected Mr Adam's Notice of Claim. Mr Adam sought a review of this decision and on 13 January 2015, the Regulator confirmed the rejection of Mr Adam's claim. [3] In the course of this hearing there are three 'events' which were mentioned by the Appellant in which Mr Adam was said to have been involved in, at the workplace. The first event occurred in March 2011 (the event around which this appeal is based); an event in 2012 which both parties agreed happened (to varying degrees) and an event in 2013 when Mr Adam had injured his teeth at the workplace. The third event is not relevant to this matter. [4] Mr Adam gave his evidence through the services of an interpreter. [5] The Regulator says no "event" occurred at the workplace in March 2011 to Mr Adam, but that a somewhat similar event to that described by Mr Adam occurring in 2011, had actually occurred in 2012 at the workplace. [6] Section 32 of the WCRA defines "injury" as: "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 b) for a psychiatric or psychological disorder - the employment is the major significant contributing factor to the injury. 2) However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies. 3) Injury includes the following - -- 2 of 16 -- 3 a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease; 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; ba) an aggravation of a psychiatric or psychological disorder, if the aggravation arises out of, or in the course of, employment c) loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing; d) death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to casing the injury; e) death from a disease mentioned in paragraph a), if the employment is a significant contributing factor to the disease; f) death from an aggravation mentioned in paragraph b), if the employment is a significant contributing factor to the aggravation. 4) For subsection (3)(b) and (ba), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation. 5) …" Onus of Proof [7] Except for those matters admitted by the Regulator, Mr Adam carries the burden of proof in this appeal. It is not contested that Mr Adam was a 'worker' for the purposes of the Act and Mr Adam must prove, on the balance of probabilities, that: a) he sustained a personal injury; b) his injury is one arising out of, or in the course of, employment; and c) his employment is a significant contributing factor to the injury. [8] The Regulator states: "… The evidence supporting Mr Adam does not have to prove certainty and 'more probable' means no more than, that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood - see Bradshaw v McEwans Pty Ltd 1. However, the test is not satisfied by evidence which fails to do more than establish a possibility. There must be 1 Bradshaw v McEwans Pty Ltd [1951] – 217 ALR 1 at 6 -- 3 of 16 -- 4 objective facts to enable the inference to be drawn, beyond mere speculation or conjecture, and which requires a court to reach a level of actual persuasion - see MacArthur v WorkCover Queensland"2. [9] The question of whether the worker has an injury within the meaning of the Act is a question of mixed fact and law "on which medical evidence is often helpful, but necessarily not decisive."3 [10] This is not an over-time claim. The specific claim of Mr Adam is that on 21 March 2011 he attended upon his General Practitioner Dr Huan Doan to report an injury which he says occurred a couple of days prior to this date of 21 March 2011. Witnesses [11] For the Appellant  Mr Osman Adam;  Ms Lowlow Mohammed (Mr Adam's wife);  Mr Bernie Waasdorp (labourer/fabricator and, for a period of time, a work colleague of Mr Adam);  Dr Gregory Gillett - Orthopaedic Surgeon. [12] For the Regulator  Dr Huan Doan - General Practitioner;  Mr Karl O'Connor - (Manager of Barry Stoodley Pty Ltd at the time of the alleged incident). Mr Adam's evidence [13] In describing an injury which he says occurred in March 2011 at his workplace, Mr Adam said he was operating a reamer drill and was drilling holes in the chassis rail of a truck. [14] Different evidence was given concerning the actual weight of the drill. The weight mentioned by Mr Adam was 10 to 15 kgs [T1-20]. Mr Waasdorp said the drill weighed around 2 kgs [T2-12]. No consensus appeared to be reached on the weight of the drill-bit, but Exhibit 1 was tendered which depicts the drill (called a 'gut buster') sitting on a piece of A4 paper. The core of the drill fitted on the diagonal of the A4 paper and the drill-bit was approximately 400 millimetres long. From that information it would appear that the drill was less than 10-15 kgs. I have preferred Mr Waasdorp's evidence that the drill was somewhat lighter than described by Mr Adam. [15] The drill is air operated and functions by using two hands. The left hand has a fixed handle and the right hand has an acceleration handle. [16] To stop the drill operating, the operator has to turn the throttle back. 2 MacArthur v WorkCover Queensland [2001] QIC 21 3 Thorsten Groos and WorkCover Queensland (2000) 165 QGIG 107, 107 -- 4 of 16 -- 5 [17] Mr Adam says that when using this drill, it ceased to function properly and became stuck in the steel of the chassis. The throttle had not worked and consequently the drill-bit would not stop spinning. [18] The drill could be stopped, if not in the conventional way, then by disconnecting the air hose to which it was attached. [19] Mr Adam pulled the drill out of the steel but the drill-bit continued its spinning and the drill twisted, so much so that the drill-bit was heading towards Mr Adam's stomach. [20] Mr Adam said at the time he was wearing two long sleeve shirts and the drill-bit went up his right-hand sleeve and was 'drilling around my arm' [T1-24]. The drill-bit caught his sleeve and the fabric was cut and ripped. [21] More specifically Mr Adam stated: That he was on the floor for a period of time calling out for help. He said that when the air hose was disconnected he "like, lost conscience [sic]." He also stated that "So I was trying to get the drill out of the truck but it kept pushing around my arm and I was trying to resist it until I went down on the floor and started saying "Help, Help" for anyone and some people actually came to help me but it pushed to my arm where I couldn't - like, I had to - I had to have resistance in order to stop it otherwise it just would keep rolling." [22] Mr Adam stated that Mr Waasdorp attended him and disconnected the air hose. Mr Adam said that Mr O'Connor was also in the vicinity at the time. [23] Mr Adam said there had been two faulty drills at the workplace and this has been brought to Mr O'Connor's attention, but as the problem remained unsolved, other workers refused to use the drills. [24] The incident was not formally reported as Mr Adam was fearful that he would lose his job. He claimed that Mr O'Connor sacked workers who had incurred an injury. In cross-examination, however, Mr Adam said he was not aware of any specific injured worker being dismissed because of an injury but he had heard that some had been dismissed for that reason. [25] Mr Adam continued working through his pain on the day of the injury because Mr O'Connor had coerced him into continuing work. This is denied by Mr O'Connor who had no recollection of any incident occurring in 2011 to Mr Adam, but could recall a roughly similar incident in late 2012 which involved Mr Adam. [26] Mr Waarsdorp recalled that 'an event' had occurred at the workplace involving Mr Adam but could not recall accurately when this had occurred. However, he did think the event occurred later in Mr Adam's employment rather than earlier on. [27] He noticed that Mr Adam's right arm was tangled up with the air hose. He disconnected the hose. He said that Mr Adam's clothes had not been ripped or torn, but that half of Mr Adam's shirt sleeve was "a little wrinkled" because of the entanglement with the air hose. He observed Mr Adam standing beside the chassis at the time he had called out -- 5 of 16 -- 6 to him for help. He said that he stayed with Mr Adam for a couple of minutes to see if he was all right [T2-11]. [28] He did not recall Mr O'Connor being around the incident at the time. He said that Mr O'Connor had been in the office and may have come out some 5 to 10 minutes later. [29] Mr O'Connor's evidence was that he was unaware of 'an incident' as described by Mr Adam in 2011. He stated Mr Adam's evidence that he had provided him with a Medical Certificate after the alleged incident in 2011 was incorrect, and at no stage had Mr Adam expressed to him that he had any pain in his arm at that time [T3-39]. [30] Mr O'Connor denied that the drill was not functioning. He said that there was regular maintenance on machinery at the workplace and if a piece of equipment was not working, it would be removed from the floor and fixed [T3-45]. He also said he had never received a complaint about a malfunctioning drill. [31] Mr O'Connor said that in late 2012, he had recalled Mr Adam coming to work with a bandage around his hand. Mr Adam told Mr O'Connor that he had bandaged his hand himself and that he hurt his hand because "the drill got caught on him" [T3-16]. [32] At that time in 2012, Mr O'Connor said that Mr Adam had not complained about his hand. He went back to work and there were no further issues raised. [33] While Mr O'Connor did not accept that there was any "event" in 2011 with Mr Adam and the use of the drill, he nonetheless queried Mr Adam's account of the 2011 event saying that the drill-bit would have been very hot at the time and most likely would have caused Mr Adam noticeable injury if his version of events was correct [T3-15, 3- 19, 3-33 and 3-42]. [34] He did not accept the mechanism of the injury as described by Mr Adam. The length of the drill and the drill-bit would not have resulted in the drill-bit entering Mr Adam's shirt sleeve near the wrist as claimed [T3-19]. The Medical Evidence [35] Mr Adam's specific claim is that he has suffered a neck injury with referred pain down his right arm as a result of a single incident in March 2011. [36] His first visit to Dr. Huan Doan was on 21 March 2011. Dr Doan was called to give evidence by the Regulator. [37] Dr Doan's notes record the following: "1.12 sore; extra FORM neg tinnel et; c for disc aidvse r vhten [sic]; Script written – Brufen Tablets 400 mg; …; Sore R arm; Referral letter sent to PAH Hospital nCS." -- 6 of 16 -- 7 [38] Dr Doan, while giving evidence, was difficult to understand. From the transcript, Dr Doan described Mr Adam's reporting of his pain as "something sore of the wrist, arm and that's where I focus more onto… and the carpel tunnel syndrome" [T3-49]. [39] At that consultation, Dr Doan referred Mr Adam for nerve conduction studies. [40] When questioned by the Regulator as to what specific complaint Mr Adam had made to him on 21 March 2011, Dr Doan responded: "It's partly that he described it's on the right side, the right – now, what's your definition of right upper arm, and what's the definition of right arm, without a common definition of upper arm or the medical definition of upper arm" [T3-51]. [41] Dr Doan said he did not notice any bruising or scratches or burns on Mr Adam's arm and he would have recorded so if there was anything of significance in that regard [T3-51]. [42] Further attendances by Mr Adam to Dr Doan related to the carpal tunnel referral to the Hospital. [43] When cross examined, Dr Doan said that while he had referred Mr Adam to the PA Hospital on 21 March 2011, he had never heard back from the Hospital. [44] Dr Doan was unaware that Mr Adam had received a referral to the QE2 Hospital from another Doctor. He was also unaware that Mr Adam had been referred by that Doctor for a CT scan of the neck. When questioned, Dr Doan advised the Appellant that he had also referred Mr Adam for an MRI for his neck in 2014. The reference related to Mr Adam's report was of 'arm pain'. [45] In considering the evidence given by Dr Doan, the Regulator referred to his initial notes of 21 March 2011 where it is recorded that Mr Adam had been experiencing carpel tunnel type symptoms for a period of about one month. [46] Upon his next visit to Dr Doan on 3 June 2011, Mr Adam had expressed concern about the appearance of a tendon in his arm and not about any injury. [47] On 31 March 2011, Mr Adam was transported by the Queensland Ambulance Service [QAS] to QE11 Hospital. The records from the QAS say that Mr Adam reported numbness in his right arm. He said that he had experienced the same symptoms about four years ago and, after many months, he regained his feeling in the arm. He also advised QAS that about two weeks earlier he had woken with a numb and painful right arm, but when he attended work, the stiffness had abated. Mr Adam was recorded as denying any precipitating injury. [48] The notes taken from the QE11 Hospital on 31 March 2011 recorded, inter alia, that: "HPC - initially brought in by QAS with vague right arm pain, was sitting in the waiting room for around 1 hour and 50 minutes -- 7 of 16 -- 8 - was half slumped on the chair when called, didn't answer initially to his name and then he stood up, suddening lost his footing and fell forwards, initial impact looked like his right shoulder, slumped on the ground and started hyperventilating. … - c/o pain and numbness down his right arm in particular with some numbness in his right leg, ongoing for 2 months, saw GP and taking ibuprofen with little improvement, mild cervical tenderness on palpation but has good neck movement PMHx: - had similar arm pain 5 years ago, self resolved - Social …. - Works as a mechanic, nil recent issues with employment." [49] The QE11 notes show that Mr Adam complained of pain and numbness down his right arm in particular with some numbness in his right leg which had been ongoing for 2 months. There had been no mention by Mr Adam of any employment related issues in connection with his symptoms. The attending Physician recorded a diagnosis to include possible subjective weakness in his right arm. [50] The Regulator states that, after Mr Adam's referral by Dr Ibrahim to the PA Hospital in October 2012, a report from the Hospital (dated 10 October 2012) diagnosed Mr Adam with peripheral neuropathy. The history, as provided by Mr Adam, was that he had been experiencing neuralgia type pain down his right arm from his neck for about 18 months. There had been no reference to any specific traumatic event as having caused the symptoms. [51] Correspondence from the PA Hospital to Dr Ibrahim (dated 10 October 2012) contained the diagnosis of peripheral neuropathy and also stated that: "Osman has a job where he handles a large drill all day. He cannot afford to get another job. For about 18 months he has been getting neuralgic type pain down his right arm from his neck. Now he has also been getting left sided pains. I wonder whether he has significant cervical intervertebral disc disease. Of course, he may have bilateral carpel tunnel syndrome, but I don't think that explains his neck symptoms. Examination today showed that he has ruptured a flexor tendon to his right index finger (probably FDP). Apparently this happened over a year ago. The function of this finger is pretty good. I note you have referred him to QE11 for investigation. 1. Can you please organize a CT of his cervical spine to look for significant disc pathology? 2. I have started him on amitriptyline 25 mg at night in an effort to control his symptoms until he can get sorted out." [52] Further visits had been made by Mr Adam to either medical practitioners and/or Public Hospitals. These, summarised, are as follows: -- 8 of 16 -- 9  QE11 Hospital in October 2012 referring to bilateral tunnel syndrome and neuralgic pain down Mr Adam's fight arm from his neck.  On 10 October 2012, a CT scan of Mr Adam's cervical spine contained a clinical history of bilateral carpal tunnel syndrome affecting his work fitting cars. No disc protrusions and no spinal stenosis or neuroforaminal stenosis was noted.  QE11 Hospital noted various non-attendances by Mr Adam until a carpal tunnel syndrome assessment was completed at the Hospital on 9 May 2013. Mr Adam had reported a two year history of right sided pain which had started up in his face and neck, running down to his hand. The attending Physician said it was difficult to determine whether symptoms were consistent with carpal tunnel syndrome because Mr Adam's symptoms start up in the right side of his face and run down to his right hand. [53] On attendance at the QE11 Hospital on 5 June 2013, the carpal tunnel clinic noted that: "injury at right hand 2 years ago at workplace. Used to work as drill operator. Unemployed for 5 months due to the injuries" Symptoms - "2 years ongoing pain, pins & needles, electric shock from right face, right neck, right arm, right hands & right thumb and, 2nd and 3rd fingers". [54] In June 2013, Mr Adam had stated, while at QE11 Hospital, that he had an accident at work two years prior when he was using an industrial drill which had become caught, causing him to twist his right arm and shoulder into an awkward position. [55] The Regulator says that it is important to note, in this instance, that Mr Adam had been requesting a report relating to a damages claim "and he was advised that he was being reviewed at the carpal tunnel clinic and he would have to go to the dedicated upper limb clinic." [56] Mr Adam underwent an MRI of his thoracolumbar spine on 18 September 2013. He reported a history of a twisting injury to the right shoulder, C5 weakness and mid thoracic back pain. The MRI reported no evidence of neuro compressive lesion or acute injury in the thoracic spine. [57] Mr Adam reported to the QE11 Hospital in March 2013 complaining of right shoulder pain, right arm pain and right wrist pain, as well as right ulnar nerve distribution paraesthesia. [58] A QE11 medical Report dated 4 June 2014 said that Mr Adam's nerve conduction study suggested mild-moderate neuropathy of the median nerve. Mr Adam had made reference to a traumatic event occurring some 3 years ago. [59] Finally, in 24 June 2014, Mr Adam attended QE11 Hospital and consulted with Dr Bell, an Orthopaedic Surgeon. He had described his symptoms as generalized aching pain to his right neck/shoulder/arm/forearm/hand. The Regulator stated that "It is also recorded that it was discussed with Mr Adam that investigations to date have not -- 9 of 16 -- 10 provided a specific anatomical source for the pain. Dr Bell thought that no surgical solution was appropriate at the time." Summary of the Appellant's evidence including the Medical Evidence [60] Against that medical background largely provided by the Regulator, the Appellant considered Mr Adam's evidence and medical history as follows. [61] The mechanism of Mr Adam's injury has been outlined by the Appellant. Mr Adam's wife gave evidence that he had taken pain relief tablets for the pain he was experiencing around 31 March 2011. She recalled the day that he had come home from work early and told her that he had hurt himself. [62] Mr Waasdorp's evidence of an event occurring was significant because he had recalled Mr Adam being 'tangled up' in an air hose of the drill he was using. However, Mr Waasdorp's evidence was that of an event occurring closer to the dental event (which occurred in 2013) and closer to the end of Mr Adam's employment [T2-14]. All Mr Waasdorp observed was an air hose around Mr Adam's arm and nothing other than a slightly crinkled sleeve. [63] With regard to the March 2011 alleged incident, the Appellant submitted that Mr Adam's non-reporting of that was more related to his desire to retain his job than anything else. [64] The Appellant says "the medical records indicate that he did have pain. Whether he had it from this event or not, the Commission would be satisfied that he was working through pain because he's reporting to his doctors that he has this pain." [65] The Appellant believes that consideration should be given to Mr Adam's difficulties with English and with reporting incidents. [66] Concerning the medical evidence, the Appellant says that both Dr Doan and Mr Adam had difficulty in expressing themselves while giving evidence and it should not be surprising that Dr Doan did not complete his full list of medical investigations which he wished Mr Adam to undertake. [67] In Mr Adam's communication with QAS, it is noted that he had reported "burning along his tendons like hot water inside his right arm." The Appellant says that it is understandable that Mr Adam could not report properly on his injury to QAS when he had been taken to QE11 Hospital in the "middle of the night". [68] The Appellant believed that because he had not said anything about his injury occurring at work this was hardly surprising in those circumstances. The Regulator said that Mr Adam had not been taken to the Hospital by QAS in the middle of the night. The actual time on the QAS report of transfer was around 1.00pm on the afternoon of 31 March 2011. [69] On 11 October 2012, Mr Adam attended PA Hospital where the medical notes record "PA Emergency - Neurologic pain down his right arm from his neck". [70] Dr Greg Gillett, Orthopaedic Surgeon who was called to give evidence by the Appellant, provided a Report dated 12 September 2014. -- 10 of 16 -- 11 [71] Dr Gillett's evidence was that Mr Adam's history was recorded as follows:  Mr Adam, in early 2011, was operating a steel reamer drill which weighed between 10 to 15 kgs.  The drill became stuck and he released the brake, but it would not work.  He was forcibly twisted down and when trying to hold the drill with both hands, he was twisted on the right side with his arm being pulled down and he ended up towards the floor. He called out for help while describing a wrenching feeling to the arm and region of the neck.  Mr Adam continued to work through the pain [Exhibit 3]. [72] In his opinion, Dr Gillett said that the event described in 2011 had the potential to cause injury involving the region of the neck with potential for nerve root compression or injury causing right upper limb pain. [73] Dr Gillett continued: "The acute event that occurs when his symptoms commence is unlikely in my view to have produced an acute carpal tunnel type scenario. I think the mechanism described to me would be more injury to the region of the neck with referred pain to the upper limb [Exhibit 3 - page 5]. [74] Dr Gillett, during evidence, in his exclusion of certain matters (i.e. "no cervical spine disc protrusion to produce neck and right upper limb symptomology; no evidence of brachial plexus injury) said he did not believe that the examination conducted on Mr Adam supported the view "that the shoulder was the pain generator…" and he ultimately determined that, by exclusion "the cause probably is a soft tissue injury" [T2-4]. [75] When queried by the Appellant as to what diagnosis he had made of Mr Adam's condition, Dr Gillett replied: "I couldn't make a diagnosis because of the confounders which are outlined in my report relating you, you know, what appeared to be psychological issues or it appeared to be a language issue and then the - so the clinical findings didn't support that there was a definite diagnosis. I think he probably had an injury. What was still causing his pain and issues he's described to me was not able to be clearly defined by me as an orthopaedic surgeon." [T2-4]. [76] Dr Gillett he did not know what "one could say what the original injury was" [T2-6]. [77] The Appellant says that Dr Gillett's report should be viewed in context. Dr Gillett referred to the earlier incident involving Mr Adam in 2011 (but had not examined him at that time) as compared to the symptoms Mr Adams was complaining about in 2014 to him. As of that date, Dr Gillett says that he could not identify a cause of the symptoms he now has and he opined that there was a psychological component to it. He further states, "On balance, what I'm hearing from Mr Adam and what I'm seeing in the medical records is that he had a soft tissue injury to his neck and upper limb". Consideration of the evidence and conclusion [78] With regard to any difficulty Mr Adam may have had in properly relaying his history to Dr Gillett, this was dealt with by Dr Gillett repeating questions over and over to Mr Adam and as well relying upon what other materials had been provided to him -- 11 of 16 -- 12 regarding Mr Adam's overall history [T2-5]. Dr Gillett was confident that "overall" he had gained the impression of what had happened to Mr Adam through Mr Adam's report to him [T2-6]. [79] It is accepted that Dr Gillett sufficiently understood Mr Adam's history. [80] When considering whether Mr Adam had injured himself within the meaning of 'injury' in the Act, the Appellant stresses that there is nothing in the Legislation which considers the question of the severity of an injury per se and in fact a worker may injure themselves in a relatively non serious way but what occurred can still be an 'injury' for the purposes of the Act. [81] In Mr Adam's case, the Appellant submits that he had complained of pain; he had symptoms which were persistent; he did not have specific treatment for the injury because the investigations undertaken by his General Practitioner were incomplete and, significantly, it had not been put to him that the event as described by Mr Adam hadn't occurred or that he did not have any pain. The Regulator denied this assertion by reference to the Transcript where the following evidence was given by way of example: Regulator - "All right. Now, I'm just suggesting that that never happened. Mr O'Connor – because you'd never told Mr O'Connor that you were having pain in 2001 [T1-72]. Regulator - You never told Mr O'Connor about your arm being sore in 2011? [T1-68]. Mr Adam - … I had two incidents with the drill. One in 2011, one in 2012. The 2012 incident was when I came back from Sudan and my arm was still not strong enough so it did twist with me as well. Regulator - So you – okay. And that's the only time that you ever spoke to Mr O'Connor about injuring yourself with the drill? [T1-72]. [82] I am satisfied that the Regulator did question Mr Adam about the alleged event in 2011 and about whether or not he had experienced any pain at that time. [83] Primarily, the Appellant says that Mr Adam experienced pain in his neck and arm which had caused him discomfort when he used the drill at work and he had worked through the pain. [84] Ms Mohamed said that her husband had returned home from work sometime in 2011 saying that his whole arm was hurt. He stayed at home for two days and then he went by Ambulance to the Hospital [T1-77]. She had recalled Mr Adam saying that "he was holding something, that he was working with something and this thing has moved, where it hurt him, and he fell over and got hurt." [T1-77]. [85] Ms Mohamed's evidence was relatively brief. She said that in January 2011 she had bought tickets for the family to return to Sudan in November 2011. She said that "I made it as a surprise for him – because I really wanted to go and see my family, but he was really worried when he knew that we were going to travel back to Sudan, because he said it's a new job. I don't know what I'm going to be doing." [T1-80]. -- 12 of 16 -- 13 [86] The family returned to Sudan for two months and 1 week in November 2011 and while in Sudan, Mr O'Connor offered Mr Adam his job back, which he accepted. In my view, this factor was indicative of a good working relationship between Mr Adam and Mr O'Connor and both attested to that being the case. [87] As previously mentioned Mr Adam's evidence was implicit in relation to the 'event' which he said occurred in 2011. He said he was on the floor for a period of time calling out for help. He said that when the air hose was disconnected he "like, lost conscience [sic]." He also stated that "So I was trying to get the drill out of the truck but it kept pushing around my arm and I was trying to resist it until I went down on the floor and started saying "Help, Help" for anyone and some people actually came to help me but it pushed to my arm where I couldn't - like, I had to - I had to have resistance in order to stop it otherwise it just would keep rolling." [88] This evidence is starkly different to that given by Mr Waasdorp. Firstly Mr Waasdorp believed that an event concerning Mr Adam occurred later in Mr Adam's employment. His evidence was that, at that later stage, he found Mr Adam standing beside the chassis with his arm entangled in the air hose. [89] I have preferred Mr Waasdorp's evidence as to where Mr Adam was situated at the time of calling for help and I have also accepted his evidence that Mr Adam's shirt was a little wrinkled, but not torn off at the sleeve. I have also accepted that Mr Waasdorp believed that the event with Mr Adam occurred later in Mr Adam's employment rather than in the earlier stages of it. The Regulator says that Mr Waasdorp's evidence more appropriately relates to an "event" with Mr Adam at the workplace during 2012 and I concur with that view. [90] Also, I have accepted Mr O'Connor's evidence that the tip of the drill would have been hot at the time it had been drilling into the chassis. Mr Adam's evidence was that at the time it was not "flaming hot" but it was "warm and it did cut through my arm" [T1-67]. While Mr Adam said the drill had cut through his arm and that he had scratches on his arm, this was not observed by Dr Doan in 2011 who said that had he seen those injuries he would have recorded that in his notes. [91] While not accepting that the event as described by Mr Adam occurred in 2011, even had it occurred, I would not have accepted Mr Adam's description of the event to the extent that the drill-tip had gone under his shirt sleeve and up his arm. Mr O'Connor's evidence was that it was highly improbable that this could occur. Mr O'Connor was well experienced in working with the drills in question. [92] Mr Adam's credibility was questioned by a consideration of the following. While Mr Adam said that Mr O'Connor had a history of dismissing employees who had injuries, he was unable to recall any employees who had fallen into this category. His evidence was "So, yeah, I haven't seen anyone get sacked before the incident. After my incident there was an older person that got injured with the instrument and he cut through his arm like it cut him open. There was other people that were sacked before - I wasn't sure why they were sacked. But I was basically doing the jobs for people that were sacked like the cleaning, the work of the delivery - all the other ones where four other people got sacked before me". -- 13 of 16 -- 14 [93] Mr Adam's evidence on this point is unreliable. Basically he said that he has not personally been aware of anyone who has been dismissed for an injury and, even if people had been dismissed, he was unaware of the reason for the dismissal. Did the worker incur an "injury" for the purposes of the Act? [94] The injury which Mr Adam said occurred happened to him in 2011. I have not accepted that there was any incident at work affecting Mr Adam or causing him injury in 2011. [95] The Appellant says "the medical records indicate that he did have pain. Whether he had it from this event or not, the Commission would be satisfied that he was working through pain because he's reporting to his doctors that he has this pain." [96] While it is clear that Mr Adam had been reporting pain for some time (as identified in the tendered medical documents) the specific event nominated by the Appellant was around 21 March 2011. This Appeal was not conducted as an over-time injury. [97] I accept that an incident roughly of the type described by Mr Adam occurring in 2011, actually occurred in 2012 when he had come to work with a bandage around his wrist. Mr O'Connor says that in 2012 Mr Adam had reported to him that he had hurt himself when he was operating the reamer drill because it had twisted. Mr O'Connor's evidence was that he had asked him if he was all right and Mr Adams reported no pain, discomfort etc. and continued to work. [98] Mr Waasdorp's evidence bears no similarity to the event which Mr Adam said had occurred in 2011. I accept that there is no support from Mr Waasdorp for Mr Adam's version of events occurring in 2011. [99] Notwithstanding that, Mr Adam's evidence that he was holding the drill with both hands and somehow the drill bit went up his left sleeve is implausible. In determining that point, I have considered all of the evidence and have particularly noted the evidence of Mr O'Connor who had been working in this field for around 30 years and who had also worked 'on the tools' including the drill for many years. In all that time Mr O'Connor had never seen an incident such as the one described by Mr Adam and I have accepted his evidence that it was highly improbable that an event such as that could occur. [100] Further, the evidence of Dr Doan does not support Mr Adam's account of events. His notes record that Mr Adam had been complaining of a one month history of a sore right wrist. Dr Doan had conducted an examination of Mr Adam's arm and had noted no sign of any damage to the arm nor had he noticed any cuts or abrasions on Mr Adam's arm at that time. [101] I accept Mr O'Connor's evidence that the drill-tip would have been hot and had an incident occurred of the type described by Mr Adam then there would have been visible marks on his arm. This had not occurred. [102] Mr Adam's evidence that on the one hand he had a good relationship with Mr O'Connor, and on the other he was reluctant to advise him of any injury for fear of being dismissed from work, has not been borne out by the evidence. Mr Adam's evidence around Mr O'Connor's history of dismissing injured workers was unreliable. -- 14 of 16 -- 15 [103] The evidence of Dr Gillett does little to support the claims made by Mr Adam. Dr Gillett could find no obvious reason for the pain that Mr Adam said he was experiencing. Dr Gillett saw Mr Adam in 2014 and not in 2011. That time factor has been considered and Dr Gillett commented that more information would be gleaned from considering the medical reports around the time of the alleged incident. Dr Gillett, though said Mr Adam probably had a soft tissue injury from an event which Mr Adam has described as occurring. [104] What then should be considered is the medical evidence of those treating Mr Adam at the time of the alleged injury. The medical notes refer to prior health problems associated with Mr Adam's arm, with two occurring some 4 or more years prior to 2011 and others over a period prior to the alleged incident of March 2011, together with medical notes from 2011 onwards. [105] These references, of medical events prior to the alleged event of 2011, for example, are that: "About two weeks ago Mr Adam experienced a recurrence of the numbness; "Mr Adam has experienced this numbness in his right arm about four years ago. After many months got feeling back. Minimal medical intervention". "Two weeks ago he experienced a recurrence of the numbness in his left fingers. He continued to go to work as a mechanic until the numbness including the entire right arm. Denies any precipitating injury." "Initially, his arm was numb and painful when he woke but by the time he had to use it at work the stiffness was all gone, but getting worse and taking longer to be easily mobile". "Similar arm pain five years ago. Self-resolved". "Works as a mechanic. Nil recent issue with employment. No objective signs for the injury symptoms" [T3-63, 64]. [106] From a consideration of all of the evidence, I have made the following findings:  If Mr Adams did incur an injury at his workplace, it is my view that this didn't occur in 2011 but had occurred in 2012 and 2013.  I have not accepted Mr Adam's account of events in March 2011 and alleged conversations he says he had with Mr O'Connor at the time.  An event around which Mr Adam gave evidence concerning a reamer drill occurred in 2012. There is corroborating evidence of that fact which is accepted. There is no corroborating evidence to support an event as described by Mr Adam occurring in 2011 from work colleagues who gave evidence. I have preferred that evidence over that given by Ms Mohamed.  The medical evidence relied upon by Mr Adam does not support him having incurred an injury of the type alleged in 2011. -- 15 of 16 -- 16  The medical evidence shows that Mr Adam had reported pain symptoms since 2011 but many of the references also refer to a time period prior to the alleged event in March 2011.  The medical evidence during 2011, and specifically the evidence of Dr Doan, does not refer to Mr Adam suffering an injury incurred at the workplace. Dr Doan was unable to find any of the injuries complained of by Mr Adam on his arm which he says occurred only a couple of days prior to the medical consultation.  Mr Adam's unreliability as a witness was evidenced by his reporting of Mr O'Connor's alleged practice of dismissing injured workers and the implausibility of the alleged mechanism of the injury which he said occurred in 2011 and described in paragraph 19. [107] I have taken into consideration the language difficulties faced by Mr Adam in the reporting of events. However, it is clear that he did not attribute any of his pain in 2011 to his working conditions. I have not accepted that his English was so poor that he was unable to find the words to explain that his injury had occurred at work. [108] Mr Adam had recorded a good working relationship with Mr O'Connor and vice versa. Mr O'Connor had contacted him in Africa either late 2011 or early 2012 asking if he wished to have his job back. I formed the view that Mr O'Connor's evidence was genuine and straight forward. [109] The Appellant has been unable to prove on the balance of probabilities that the claimed 'event' occurred in March 2011. [110] The evidence more than supports the finding that:  Mr Adam has not suffered a personal injury;  Any injury that Mr Adam suffers from is not one arising out of, or in the course of, employment; and  Mr Adam's employment is not a significant contributing factor to any injury. [111] Mr Adam has not discharged the burden of proof and the appeal is dismissed. The decision of the Review Unit dated 13 January 2015 is confirmed and the Appellant is to pay the Regulator's costs to be agreed or failing agreement, to be the subject of further application to the Commission. [112] Order accordingly. -- 16 of 16 --