Department of Communities, Child Safety and Disability Services v Simon Blackwood (Worker's Compensation Regulator) [2015] QIRC 10

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Department of Communities, Child Safety and Disability Services v Simon Blackwood (Worker's Compensation Regulator)[2015] QIRC 010 PARTIES: Department of Communities, Child Safety and Disability Services (Appellant) v Simon Blackwood (Worker's Compensation Regulator) (Respondent) CASE NO: WC/2013/365 PROCEEDING: Appeal against a decision of the Workers' Compensation Regulator DELIVERED ON: 16 January 2015 HEARING DATES: 24 and 25 February 2014 MEMBER: Industrial Commissioner Black ORDERS : 1. The Appeal is allowed 2. The decision of the regulator dated 11 October 2013 is set aside and substituted with a decision that the worker’s claim is one for rejection 3. Costs are reserved CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION – worker claims hernia caused by lifting at work – contemporaneous attendance on doctor but no association between symptoms and work activity disclosed – no record of incident at work – employer not informed that injury had been sustained. CASES: Workers' Compensation and Rehabilitation Act 2003 s32 (1), s550 APPEARANCES: Mr M. O'Sullivan, Counsel, instructed by HWL Ebsworth Lawyers for the Appellant Mr C. Clark, Counsel, directly instructed by Simon Blackwood (Worker's Compensation Regulator) for the Respondent -- 1 of 11 -- 2 Decision [1] The Department of Communities, Child Safety and Disability Services ("the appellant") appeals a decision of the Review Unit of the Workers' Compensation Regulator ("the regulator") to accept Mr Stephen Tucker's application for workers' compensation. [2] Tucker originally lodged his application for compensation with WorkCover on 26 April 2013. On his claim form he referred to an injury to "abdominal muscles and tendons, hernias" as a result of lifting customers. At the time Tucker was employed as a Residential Care Officer (RCO) with the appellant. Tucker said that his injury was caused while he was assisting service user "Adam" to get to his feet after he had suffered a seizure. [3] On 4 June 2013 WorkCover Queensland rejected Tucker's application for workers' compensation. On 3 September 2013 Tucker asked the regulator to review WorkCover's decision. On 11 October 2013 the regulator set aside WorkCover's decision that the worker's claim was one for rejection. The employer now appeals this decision to the Commission pursuant to s. 550 of the Worker's Compensation and Rehabilitation Act 2003 ("the Act"). Nature of the Appeal [4] The appeal to the Commission is by way of a hearing de novo. To succeed with its appeal, the appellant must establish on the balance of probabilities that Tucker did not sustain an inguinal hernia injury while lifting or assisting service user Adam on 6 March 2013. This determination is to be made pursuant to section 32 of the Act which relevantly provides as follows: "32 Meaning of injury (1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury." Exhibit 1 [5] The regulator tendered the following background documents which were marked collectively as Exhibit 1:  WorkCover Queensland Application for Compensation dated 26 April 2013;  WorkCover Queensland Reasons for Decision dated 4 June 2013;  Q-COMP Application for Claim Review dated 2 September 2013; and  Q-COMP Review Unit Decision dated 11 October 2013. Evidence [6] During the course of the proceedings, evidence was provided by 12 witnesses. The witnesses for the appellant were as follows: -- 2 of 11 -- 3  Dr Alison Scandrett  Dr James Tankey  Colleen McMullin (Service Manager)  Scott Kerr (Co-worker)  Vaughan Smith (Co-worker)  Mark Dale (Co-worker)  Sandra Jones (Manager) The witnesses for the Regulator were as follows:  Stephen Tucker  Peta Willis (WorkCover Claims Representative)  Jonathon Iaopo (Co-worker)  Dr Allan Byrnes  Dr Unis Suliman The Appellant's Case [7] The appellant submitted that the following facts and factors supported a balance of probabilities finding to the effect that Tucker did not develop an inguinal hernia as a result of lifting a client at work on 6 March 2014:  Medical consultations immediately after 6 March 2013 did not reveal any connection between Tucker's condition and any work activity  Tucker specifically told Dr Scandrett that he was not involved in any heavy lifting immediately prior to the onset of pain  On the evidence of Kerr, and on Tucker's evidence, the onset of pain was associated with the act of masturbation  The contemporary and available documentation does not support the claim that the client in question suffered a seizure on 6 March  No report of the seizure incident was made in any of the employer's reporting books  The unanimous view was that it was important to record seizure activity  Tucker's claim that he recorded the seizure in the seizure activity record was not supported by documentary evidence  Neither Tucker nor Ioapo informed Smith at handover time that Adam had suffered a seizure  It was Smith's evidence that Tucker told him before 6 March that he had a hernia  Tucker did not report his claim of an injury to a supervisor after the event  There is no evidence that Tucker engaged in any lifting tasks, either on a regular or infrequent basis  The medical certificate of Dr Byrnes recorded the date of injury as 7 March 2013  It was more probable than not that Tucker's hernia developed insidiously and was brought to light by acts of masturbation. -- 3 of 11 -- 4 The Regulator's Case [8] In submitting that Tucker's claim was one for acceptance, the regulator relied primarily on the evidence of Tucker and Ioapo in association with the relevant medical evidence. Supporting facts and factors included:  It was significant that Tucker sought medical attention the day after his injury at work. While no discussion about a hernia took place, Tucker's symptoms were consistent with an inguinal hernia  Tucker's complaint of pain to Dr Scandrett on 11 March 2013 was consistent with a hernia and led to Dr Scandrett ordering an ultrasound  The evidence supported a conclusion that the employer's system of reporting was imperfect and the loss of Tucker's seizure report form was unexceptional  Adam was commonly associated with seizures and in some instances the seizures were feigned for the purpose of attracting attention  While Tucker experienced pain after lifting Adam on 6 March 2013, he did not know that he had suffered a hernia until same was diagnosed by Dr Scandrett on 17 April 2013  Iaopo's evidence provided clear support for Tucker's claim  Tucker's investigations intended to establish the date of the shift that he worked with Ioapo were consistent with the truthfulness of his version of events Tucker's Evidence [9] Tucker said that he sustained his injury about three or four days prior to his attendance on Dr Scandrett. He had no particular recall of his prior attendance on Dr Tankey on 7 March 2013. He said that he injured himself at work as a result of assisting a service user, Adam, to his feet after Adam had recovered from a seizure. He said that he experienced pain in the groin area as he was lifting Adam. This was the first time that he had experienced this type of pain. While he accepted that he was instructed not to lift patients, he said that he assisted Adam to get to his feet, and that Adam also helped himself to get to his feet. [10] Tucker said that after the incident he "filled out one form". He said that he "was in a lot of pain". He said that the pain was constant and that Ioapo took over and helped him out during the rest of his shift. When Ioapo asked him what had happened he said that he told Ioapo that he was in pain and that he had hurt himself "lifting Adam up". Tucker said that he continued to experience pain in the two following shifts he worked on 7 March and 8 March 2013. [11] Tucker said that he did not report the injury to a supervisor because he didn't think the pain was significant and that it would just go away (T1-99). [12] Tucker accepted that during the consultation with Dr Scandrett he was asked a number of questions designed to surface the cause of the pain. The outcome of the consultation was that Dr Scandrett ordered an ultrasound and a few weeks later he was informed that he had an inguinal hernia. -- 4 of 11 -- 5 [13] Tucker had lodged his application for compensation with WorkCover over the phone on 26 April 2013. The application is in the evidence as Exhibit 1. The application records a time of injury as 12.00AM on 6 March 2013. Tucker denied in his evidence that the reference to "12.00AM" should be taken to mean that his injury occurred at 12 noon on 6 March 2013. Tucker said that he would have told WorkCover that the injury occurred "in the afternoon". [14] Tucker denied telling McMullen before going on leave on 11 March 2013 that he needed to have a minor operation. He also denied telling Vaughan Smith a couple of weeks prior to 6 March 2013 that he had a hernia. Finally he denied telling Scott Kerr on either 25 or 26 March 2013 that he had pulled his cock too hard and that as a result he had suffered a sharp pain in the gut. Ioapo's Evidence [15] A prior statement made by Ioapo and dated 20 August 2013 is in the evidence as Exhibit 14. In the statement Ioapo said that on 6 March 2013 he recalled Tucker complaining to him about a pain in the groin. He said the conversation took place around midday. Tucker said that he had hurt himself helping Adam get up off the floor after Adam had suffered a seizure. [16] Ioapo said that he prepared the prior statement after receiving a phone call from Tucker around the end of June 2013 in which Tucker asked him if he remembered a conversation between the two of them on 6 March 2013. Ioapo accepted that he was not sure of the precise date of the conversation but believed that it took place around the date specified. [17] While Ioapo said in his prior statement that Tucker said that he had hurt himself around midday, Ioapo changed the time when giving evidence to between 2pm to 3pm. Ioapo denied any inconsistency in this regard and suggested that, for him, the use of the word "midday" could be taken to mean anytime between 10am and 2pm. It was also Ioapo's evidence that Tucker told him about the pain in the groin after they had returned from the Red Hill trip at 2pm. [18] Ioapo agreed that it was important to record seizure activity. He said that details of a seizure were recorded in the "Record of Seizures" document. While he accepted that it was possible that seizure activity may be recorded in the House Book, he said that seizure activity was also reported in the "Important Notes" document. Record of Service User Seizure [19] It appeared that seizures might be recorded in a number of documents namely the "House Book" (Exhibit 5), a "Record of Seizures" (Exhibit 7), the "Important Notes" (Exhibit 6), and in a "Monitoring Sheet for Seizure Activity" (Exhibit 8). Exhibit 7 and Exhibit 8 are seizure specific documents and there is no disagreement that seizure activity should be recorded in these documents. Exhibit 6 comprised extracts from the Important Notes, but no description of seizure activity appeared in these extracts. Exhibit 5 comprised a copy of pages from the House Book extending from 1 January 2013 to 10 March 2013. On numerous occasions an entry was made in the House Book to the effect that either no seizures had occurred on the particular day or that a seizure had occurred. It was clear that the normal practice was for -- 5 of 11 -- 6 seizure activity to be recorded or noted in the House Book. It is in this context that the oral testimony is to be considered. [20] While Ioapo conceded that it was possible that seizure activity might be mentioned in the House Book, the tenor of his evidence was that this was not the normal practice. Kerr and Smith both said that it was the normal process to log seizure activity in the House Book. Tucker said that the record of any seizure was to be made in the seizure recording chart and that an entry would be made in the House Book referencing the seizure recording chart. Tucker said that while he had made the appropriate record in the seizure recording chart, he forgot to include a note in the House Book. He accepted that he should have logged the seizure in the House Book. Tucker said that he completed the seizure report form and put it in the mailbag for distribution to the appropriate personnel. Tucker said that "if the office has lost the form, that is not my problem". [21] In the end result none of the four exhibits in question included any reference to a seizure by the client, Adam, on 6 March 2013. Further no reference to seizure activity was made by Tucker or Ioapo at shift handover time. That is, when Tucker and Ioapo finished their shift at 7pm they did not inform Smith who was providing the coverage immediately thereafter, either orally or in writing, that Adam had suffered a seizure during the afternoon. Injury not Reported [22] Tucker did not report his injury to either a team leader or to his service manager. Neither did he complete a Workplace Injury, Illness and Incident Report Form. Tucker said that he injured himself on 6 March 2013. He worked again on 7 and 8 March 2013. He was rostered off on 9 March 2013 and was on annual leave from 10 March to 25 March 2013. Dr Bryne issued a medical certificate on 18 April 2013 certifying Tucker as unfit for work from 17 April 2013 to 17 May 2013. It is not clear on the evidence whether Tucker performed any work between 26 March 2013 and 16 April 2013. [23] McMullen said that Tucker never spoke to her about the alleged injury. She said that she did not become aware of any claimed workplace injury until 26 April 2013 when Tucker's workers compensation claim form was received. Alternatively, she accepted that she may have first become aware of the claim when she received a workers compensation medical certificate on 17 April 2013. [24] Tucker accepted that he did not report the injury to McMullen. Further while he worked the two days following the incident, he agreed that he did not report the injury on these days (T1-99; T1-102). Tucker conceded that he did not report the injury to any team leader (T1-112). Medical Evidence [25] Dr Byrnes issued Tucker with a workers compensation medical certificate on 18 April 2013. The certificate is in the evidence as Exhibit 9. In the certificate he diagnosed Tucker with a right inguinal hernia and recorded the date of injury as 7 March 2013. The certificate cited "lifting at work" as the cause of the hernia based on the history provided by Tucker. -- 6 of 11 -- 7 [26] Dr Tankey said that when he saw Tucker on 7 March 2013, Tucker reported right- sided abdominal pain radiating to the groin. Tucker did not connect his pain to any work activity. Dr Tankey thought the problem might be renal in nature and he ordered an ultrasound of the renal tract to investigate the condition, however the ultrasound did not reveal any abnormality. [27] If Tucker did attend on Dr Tankey because of the pain he experienced while lifting at work the previous day, it was odd that Tucker did not mention this event to Dr Tankey. Tucker's own evidence about his consultation with Dr Tankey was not helpful. Tucker said that he did not recall the consultation. [28] Dr Tankey accepted that, given the negative ultrasound finding, an alternative diagnosis of right inguinal hernia may potentially have been consistent with Tucker's symptoms. However the medical evidence around this issue was not consistent. Dr Scandrett's evidence on the subject is recorded at T1-16: "Okay. What do you say to this proposition, that what he was complaining about to Dr Tankey that day is not necessarily inconsistent with a right inguinal hernia, in the sense that there could've been referred pain from the hernia radiating up further in his abdominal area?---It doesn’t usually happen. Like, usually, if you've got an inguinal hernia, you get the pain pretty much directly where it is, or sometimes referred lower. I've not come across patients having the pain referred higher from an inguinal hernia. All right. Well, the inguinal hernia might've been dragging on higher structures and then causing pain in those upper areas?---I - no. I’ve never come - I - I don’t see how that would happen. I’ve never had patients complaining of pain higher in their abdomen when they've had an inguinal hernia." [29] Dr Suliman's view on the matter (T2-40) was that "pain originating in the scrotum and extending towards the groin is consistent with the development of a hernia as far as the symptomatology. Extending further up the abdominal wall is most unlikely." However Dr Suliman agreed that the symptoms described by Tucker during his attendance on Dr Scandrett on 11 March 2013 were consistent with the condition of a direct inguinal hernia. Tucker had said that he experienced "severe pain from scrotum to mid abdomen on right side". Dr Suliman said that "scrotal pain is often the first presentation patients develop – the first symptom that patients develop when they're acquiring a hernia" (T2-40). [30] Tucker attended on Dr Scandrett on Monday 11 March 2013. He reported severe pain from the scrotum to mid abdomen on the right side. Dr Scandrett ordered an ultrasound to check inter alia for a right inguinal hernia. The ultrasound which was performed on 21 March 2013 recorded a finding of a "small direct inguinal hernia present containing fat". Following the ultrasound Tucker attended on Dr Scandrett on 17 April 2013 when he was informed of the diagnosis and referred to Dr Suliman. Dr Scandrett also issued Tucker with a workers compensation medical certificate stating the cause of injury as "lifting at work". -- 7 of 11 -- 8 [31] Dr Scandrett said that, in terms of causation, the priority on 11 March was to try to find out what was causing the pain and to establish whether there was anything that had happened very recently that might have caused that pain. In this regard she said that Tucker had indicated that he had not been doing any heavy lifting immediately prior to the onset of pain. Doctor Scandrett said that in arriving at a diagnosis she would have been asking about what happened before the onset of pain to see if she could tie the pain to a specific event. [32] Tucker was examined by Dr Suliman on 15 May 2013. Arising from the examination Dr Suliman prepared a report for WorkCover dated 27 May 2013. The report and related information is in the evidence as Exhibit 15. Dr Suliman confirmed the presence of a small right inguinal hernia. On the history given to him by Tucker, Dr Suliman concluded that the hernia occurred as "a direct consequence of the physical activity" described by Tucker which involved lifting a 120kg patient to his feet. [33] Dr Suliman conceded in his evidence that his opinion was based on the history provided to him by Tucker to the effect that the cause of the hernia was the lifting of a client at work. He said that he was not given any other history. He did not have access to the medical records of Dr Scandrett and was not aware that Tucker had informed Dr Scandrett that he experienced his symptoms while masturbating, and that Tucker had said that no heavy lifting preceded the onset of pain. [34] Dr Suliman said that a hernia could emerge in different circumstances. The hernia could be insidious with a number of activities over time contributing to the condition before it eventually manifests itself. Alternatively there could be a progressive weakening of the posterior wall caused by repetitive heavy lifting before something minor suddenly permitted the herniation to come through the defect (T2-36). Finally there could be a sudden onset of the condition occurring in the context of very physical activity such as heavy lifting or violent physical activity such as kick boxing. [35] Both Dr Suliman and Dr Scandrett dismissed masturbation as a factor. The activity would not cause a hernia. Further Dr Suliman rejected a scenario wherein Tucker may have had an insidiously developing hernia which was brought on, or became evident, during masturbation (T2-38). Reasoning [36] I have decided to allow the appeal. The evidence does not support a balance of probabilities finding that Tucker's hernia was caused by lifting at work on 6 March 2013. I arrive at this conclusion based on the following reasons: (a) It is difficult to reconcile Tucker's version of events around causation with the evidence relating to his attendance on medical practitioners on 7 March and 11 March 2013; (b) Despite the required practice of making a record of seizures, there was no record that the service user Adam had suffered a seizure on 6 March 2013; (c) Notwithstanding that he was familiar with the reporting procedure, Tucker did not complete an injury or incident form, nor did he advise -- 8 of 11 -- 9 any team leader or his service manager that he had suffered an injury; and (d) Reservations about the reliability of Ioapo's evidence in particular respects. [37] In respect to the alleged injury on 6 March 2013 Tucker said that he was in a lot of pain, that he had not experienced that type of pain before, that the pain was constant, that Iaopo saw that he was in a lot of pain, and that he continued to experience the pain at work on the following two days. Notwithstanding this evidence when Tucker attended on Dr Tankey the day after the incident, and Dr Scandrett just a few days later again, he did not inform them that his pain was related to lifting at work. [38] While Tucker denied telling Dr Scandrett that he did not engage in any heavy lifting prior to the onset of pain and claimed that lifting at work was brought up in conversation as a possible cause, I prefer the evidence of Dr Scandrett on the subject. Her evidence was based on her contemporaneous records and given that she had identified in the consultation that a hernia was the possible cause of the pain, I do not accept that Dr Scandrett's records would have omitted a history that connected the onset of pain to heavy lifting at work. [39] It is not plausible, if Tucker's evidence about causation were accepted, that he would not have commented to Dr Scandrett about the onset of pain while assisting a client at work, given the location of the pain, the fact that this was the first time he had experienced such pain, and that the pain was significant and continuing. Despite heavy lifting being a common cause of a hernia and despite the thorough investigation by Dr Scandrett into the cause of Tucker's pain, while Tucker raised the link with masturbation he overlooked to mention any lifting activity at work. [40] While Tucker's cause is helped by his contemporaneous reporting of pain to medical practitioners and establishes that he has suffered an injury, it does not necessarily establish that there was a connection between his injury and his employment. The issue in this case is not whether Tucker suffered a hernia, but whether the hernia was caused by lifting at work. [41] Tucker's position is further weakened by the absence of any contemporaneous reporting of events. There was no record of any seizure activity and no reporting of any workplace injury to his employer. Tucker did not complete a Workplace Injury, Illness and Incident Report Form at any point on or after 6 March 2013. Neither did he report the incident or any injury he may have sustained in relation to it, to any team leader, supervisor or manager. The first time that supervision became aware of the claim was on 17 April 2013 when the employer received a workers compensation medical certificate. [42] In the absence of any contemporaneous reporting of the incident, Tucker relied on Ioapo's testimony to provide corroboration for his version of events. However there are doubts in my mind about the reliability of Ioapo's evidence. These doubts arise from a consideration of the following issues which suggest that Ioapo had a tendency to shape or modify his testimony to align with Tucker's position: -- 9 of 11 -- 10 (a) Whether Ioapo's recall of events was independent of information provided to him by Tucker in advance of the preparation of his 20 August 2013 statement; (b) The circumstances in which Ioapo elected to change his testimony about the time of injury from "around midday" to some time between 2pm and 3pm; (c) Despite evidence to the contrary, Ioapo elected to suggest that it was not normal practice to include seizure activity in the House Book. [43] In his evidence Ioapo said that he had received a phone call from Tucker around the end of June 2013 in which Tucker asked him if he remembered a conversation between the two of them on 6 March 2013. While Ioapo said that he recalled a conversation, he did not know the date on which conversation took place and he relied on Tucker's information in including 6 March 2013 in his 20 August 2013 statement. The evidence did not surface what other parts of the prior statement were based on what Tucker told him in June 2013 as opposed to what Ioapo may have independently recalled. [44] Despite saying in his prior statement that the conversation with Tucker took place around midday, Ioapo changed the time when giving evidence to between 2pm to 3pm. The change is significant given that Tucker appeared to nominate the time of injury as 12noon when he lodged his claim with WorkCover. The change is also a very convenient alteration when it is considered that Ioapo became aware before the proceedings commenced that the employer had provided evidence establishing that at midday Ioapo and Tucker were with Adam on an excursion which extended from 11.30am to 2.00pm. [45] The tenor of Ioapo's evidence about the recording of seizures was that the entry was to be made in the record of seizures and that it was not the common practice to record seizure information in the House Book. A review of the content of Exhibit 5 makes clear that the common practice was to record seizure activity in the House Book. Given Ioapo's familiarity with the House Book he must have known that this was the factual position. Notwithstanding this he gave different evidence in order to support Tucker's position. In the end result his position was contradicted by Tucker who acknowledged that he should have made an entry in the House Book. [46] The medical evidence is clear that Tucker's hernia was not caused by masturbation. However the evidence about masturbation is significant in that if Tucker were inclined to attribute the onset of pain to masturbation, then any association between the onset of pain and a lifting activity at work becomes less likely. It was Tucker's evidence that he raised the connection with masturbation in a consultation with Dr Scandrett (T1-83): "Okay. Do you remember if you discussed that with any of the doctors at all?-- -I do remember, I think, the first doctor, she was asking for signs and symptoms on when the pain was worse or – than what it was at different – like, I had pain, but she said what brought on the pain on more or less or – and I told the doctor it was during – either I was doing certain activities, masturbation was one of them, or just general things around the house." -- 10 of 11 -- 11 [47] In this evidence Tucker appears to be saying that when Dr Scandrett tried to surface the cause of the pain, Tucker nominated the act of masturbation, not the act of lifting a client at work. This evidence is inconsistent with Tucker's evidence about what he alleged happened at work when he said that he experienced groin pain while lifting Adam; that he never had pain like that before; that after the lift he left the work area in "quite a bit of pain" (T1-81) and that Ioapo saw that he was "in a lot of pain" (T1- 86). Further he agreed at T1-99 that after the lifting incident it is likely that he worked on for a number of hours with severe pain. [48] The appeal is allowed and the decision of the regulator dated 11 October 2013 is set aside. The matter of costs is reserved. [49] I order accordingly. -- 11 of 11 --